Interim applications are also called "interlocutory applications." "Interlocutory" comes from Latin roots meaning "between speakings," which helps to explain exactly what an interim application, and the interim orders which come from those applications, really mean. An interim application is an application for a temporary sort of order, an order which is only good until it is varied by another interim order or the issues between the parties are finally decided following trial. Interim orders can be very useful to lay down ground rules between the parties and their children on a temporary basis, until the trial happens or the action settles.

In family law, interim applications are almost always necessary, sometimes because a party's behaviour is out of control and sometimes because a decision needs to be made about where the children will live. Typically, interim orders need to be made to determine the following basic issues:

• Where will the children live most of the time?
• What time will each parent have with the children?
• Should child support be paid?
• Should spousal support be paid, and, if so, how much should be paid?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders. Restraining orders essentially require someone not to do a specific thing, such as:

• Not to go to the home of a party.
• Not to communicate with a party or with the children.
• Not to harass a party or the children.
• Not to remove the children from a specific area.
• Not to dispose of family assets.

Other types of interim order deal with procedural matters that have to do with the conduct of the litigation, rather than with the relationship between the parties and their children. They can be useful to:

• Set deadlines for the exchange of documents, such as Financial Statements.
• Force the production of documents from one party to the other.
• Authorize the preparation of a custody and access report.
• Fix dates for hearings like Pre-Trial Conferences and Settlement Conferences.

Pretty much anything can be dealt with at an interim application, except for things like divorce and the division of family assets. The one thing all interim orders have in common is that they are only temporary in nature and will expire the moment the case is settled by way of a final order that parties agree the court should make (a "consent order"), or a judge makes a final order following trial.

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial (Family) Court, is a miniature version of the process for starting or defending an action. In essence,

1. the person making the application, the Applicant, prepares the formal court documents that start the application, and delivers those documents to the person that will be defending the application, the Respondent;
2. the Respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the Applicant;
3. the Applicant can then set the application for hearing, and must provide notice of the date of the hearing to the Respondent; and,
4. on the date of the hearing, the Applicant makes his or her pitch to the court, the Respondent makes his or her own pitch, and the Applicant has a before chance to reply to the Respondent's argument before the court makes a decision.

All these stages are governed by each court's Rules of Court. The Rules will set out which forms are required for each stage, what can and cannot be put into those forms, and the deadlines for each party for each step of the process. The Rules will also set out how the application is heard and the authority of the court to decide on the issues before it.

Back to the top of this chapter.

Interim applications are only brought after an action has been started. The purpose of these applications is usually to provide a legal structure to parties' relationship with each other and their children. A typical interim application would be made to establish how the parties will share custody, guardianship and access to the children, to set out interim spousal or child support, or to freeze the family assets, for example.

The principle Rules of Court which relate the application process and the forms required are:

• Rule 2: the effect of non-compliance
• Rule 3: time
• Rule 44: interim applications
• Rule 51: affidavits
• Rule 51A: setting down applications for hearing
• Rule 57: costs
• Rule 60D: financial disclosure in divorce and family law proceedings

A link to the Supreme Court Rules of Court is provided in the section Resources & Links.

Please note that it is important to read the whole of this segment, regardless of whether you're bringing an application or defending one, to get a proper picture of the application process, the documents required and the timelines and deadlines involved in an interim application.

When an Application can be Brought

Generally speaking, interim applications are only brought after the Defendant has had a chance to file his or her Statement of Defence and a Judicial Case Conference has been held, but they can be brought earlier — sometimes on the same day that the Plaintiff starts the action — when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Defendant was threatening to leave the country with the children.

Rule 60E(2) sets out the exceptions to this requirement:

1. where the parties are married, when an application is being made for a declaration that they have no prospect of reconciling;
2. when an application is being made for an order restraining either or both parties from disposing of family assets;
3. when the order will be made by the consent of both parties; and,
4. when the application is being made without notice being given to the other side (sometimes called an "ex parte" application).

If an application must be brought before a JCC, you must apply for relief from the rule requiring the JCC before your application can go ahead. Once a JCC has been held, on the other hand, an application can be brought at any time, without the need for another JCC.

JCCs are discussed in more detail in the chapter The Legal System > Starting an Action.

Making an Application

To start an interim application, you must prepare a Notice of Motion and your Affidavit in support of your application. Unless your application is being brought without notice to the Respondent, you must deliver these documents to the Address for Delivery set out in the Plaintiff's Writ of Summons or the Defendant's Appearance.

Notice of Motion

The Notice of Motion describes: the orders and/or declarations the Applicant wants the court to make, also called the "relief" sought; the legal grounds on which the relief is claimed; the Affidavits or other evidence which the Applicant relies on in support of the relief sought; the rules and/or legislation the Applicant will rely on; and, an estimate of the time the Applicant thinks it will take for the application to be heard.

The form which must be used is Form 55, set out in Appendix A of the Supreme Court Rules of Court. The cost to file an application is $62.00.

Supporting Affidavits

An Affidavit is a statement of fact given under oath. The Affidavits filed with the Notice of Motion, called "supporting Affidavits," contain evidence relevant to the application. The supporting Affidavits may be brand new or may consist of Affidavits that have been filed already and are already in the court file. The form which may be used is Form 60, set out in Appendix A of the Supreme Court Rules of Court.

The process for drafting your Affidavit and the rules about the content of your Affidavit is discussed in the How do I ? section of this website.

Sample Documents

The links below will open a sample Notice of Motion and a sample Notice of Hearing in a new window. You will require Adobe Acrobat Reader to view these files, a free program available for download at Adobe's website.

In this sample, our fictitious Defendant, John Doe, is applying for three common orders: an Declaration that the he and his wife, Jane Doe, have no reasonable prospect of reconciling; a financial restraining order against Jane; and, an order that he have exclusive occupancy of the family home. (For more information about these sorts of orders, see the section "Family Assets.")

Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.

• Form 55: Notice of Motion
• Form 126: Notice of Hearing

These sample documents are just that: samples. While they represent a more or less accurate picture of how John Doe might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

Templates of these documents in Microsoft Word format are available for download in the Resources & Links section of this website.

Defending an Application

To defend an interim application, you must prepare a Response and your Affidavit in support of your position. You must deliver these documents to the Address for Delivery set out in the Plaintiff's Writ of Summons or the Defendant's Appearance.

Response

A Response has four parts: a statement as to which of the Applicant's claims the Respondent doesn't oppose; a statement of the claims which the Respondent does oppose; a statement of the claims which the Respondent will not oppose, providing certain conditions are met; and, a list of the Affidavits or other evidence which the Respondent will rely on in opposing of the relief sought by the Applicant. The Response also contains the Respondent's estimate of the time that will take for the application to be heard.

The form which must be used is Form 124, set out in Appendix A of the Supreme Court Rules of Court. There is no fee to file Response.

The Response and supporting Affidavits must be delivered to the Applicant within eight days after the Notice of Motion was delivered to the Respondent.

The Respondent can, at any time after being delivered with a Notice of Motion, chose to file an application of his or her own for whatever relief the Respondent wants to claim against the Applicant, also by a Notice of Motion. This is called a "cross-application." Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

Supporting Affidavits

An Affidavit is a statement of fact given under oath. The Affidavits filed with the Response, called "supporting Affidavits," contain evidence relevant to grounds on which the application is opposed. The supporting Affidavits may be brand new or may consist of Affidavits that have been filed already and are already in the court file. The form which should be used is Form 60, set out in Appendix A of the Supreme Court Rules of Court.

The process for drafting your Affidavit and the rules about the content of your Affidavit is discussed in the How do I ? section of this website.

Sample Documents

The links below will open a sample Appearance, Statement of Defence and Counterclaim in a new window. You will require Adobe Acrobat Reader to view these files, a free program available for download at Adobe's website.

In this sample, our fictitious Defendant, John Doe, has brought an application for an Declaration that the parties are unable to reconcile, a financial restraining order and an order that he have exclusive occupancy of the family home. Since Jane also wants the Declaration and the restraining order, she doesn't oppose those claims, but she does oppose the claim for exclusive occupancy. (For more information about these topics, see the sections "Children," "Child Support," "Spousal Support," and "Family Assets.")

Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.

• Form 124: Response

This sample document is just that: a sample. While it represents a more or less accurate picture of how Jane Doe might fill out her form, they may not be applicable to your situation. Use this as a reference only together with the official court form.

A template of this document in Microsoft Word format is available for download in the Resources & Links section of this website.

Time Estimates

Time estimates are very important in applications before the Supreme Court. The length of time an application will take to be heard will determine when the application is heard, how the hearing date is set, and what documents are required by the court for the application.

An application that will take longer than two hours must be scheduled with the trial coordinator at the Court Registry, and a hearing date may not be available for several months. Applications that will take less than two hours are heard on a day picked by the parties.

If an application will take between half an hour and two hours to be heard, each party must go through an additional step and provide each other with Outlines and the Applicant must prepare a Chambers Record, both of which are described below. If an application will take less than half an hour, the parties do not need to exchange Outlines, and the Applicant does not need to prepare and file a Chambers Record.

Note that the shorter an application is, the the more likely it is to be heard sooner than later. There could be two applications set be heard in chambers on a particular day or there could be twenty. The chambers clerk will generally sort the applications in order of the time estimates, so that a five minute application will be heard fairly quickly while a ninety minute application won't be heard until much later in the day.

Outlines and Chambers Records

If an application will take longer than half an hour to be heard, both parties must prepare an Outline. An Outline is a court form in which the parties summarize their positions and the facts they say support that positions. The Applicant fills out Part 1 and 2 of the Outline, stating which of the heads of relief set out in the Notice of Motion he or she intends to address at the hearing of the application and the facts and law on which the application is based. In a separate document, the Respondent fills out Part 3 of the Outline, stating the facts and the reasons why he or she opposes the application.

Once the Applicant has received the Respondent's Outline Part 3 and affidavits, the Applicant should prepare his or her Chambers Record. A Chambers Record is a three-ring binder containing all of the materials that both parties will rely on at the hearing, as well as an index to those materials. Usually, a Chambers Record contains the following documents, in this order:

1. an index to the binder;
2. the Applicant's Outline;
3. the Respondent's Outline;
4. the Notice of Motion;
5. the Reply;
6. the affidavits both parties will rely on at the hearing, sorted chronologically by the dates on which each affidavit was sworn; and,
7. the Notice of Hearing.

Certain things may not be included in the Chambers Record, such as written arguments. These are set out in Rule 51A of the Rules of Court.

Sample Documents

These Outlines use the scenario between Jane and John Doe previously described abvove. Had John's application been set for longer than half an hour, these are the documents each party would have had to prepare.

Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.

• Form 125: Outline Parts I & II, to be completed by the Applicant
• Form 125: Outline Part III, to be completed by the Respondent

These sample documents are just that: samples. While they represent a more or less accurate picture of how John Doe might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

Templates of these documents in Microsoft Word format are available for download in the Resources & Links section of this website.

Setting an Application down for Hearing

The Applicant may set down his or her application for hearing as soon as the Rules of Court permit, as described below. An application is set for hearing by delivering the other party with a Notice of Hearing and then filing all of the materials, plus some two copies of the Notice of Motion and Outlines, at the court registry before noon on the day before the hearing. As long as the application will take less than two hours to be heard, the registry will set the matter for hearing the following day. All applications that are going to be heard that day are set to be heard at 9:45am.

A sample of John Doe's Notice of Hearing is provided above.

The Hearing

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day walks up to the front of the courtroom and signs in with the court clerk, identifying themselves by their names and their number on the court list. (The court list will be posted somewhere outside the courtroom, and another copy is usually available inside the courtroom. All the motions that are going to be heard that day are listed on this list, but in no particular order.) The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk calls each application by their number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties walk up to the front of the court and identify themselves to the judge. The Applicant speaks first and presents his or her case. The Respondent then presents his or her side of the case. Following this, the Applicant will have a chance to answer the Respondent's argument, and the Respondent may have the opportunity to address the Applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the Applicant and Respondent questions during their presentations to clarify things.

A discussion of courtroom protocol is available in the How Do I ? section of this website.

After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a "reserved decision."

After The Hearing

It is the job of the Applicant to turn whatever the judge or master has decided into a written order. Orders are very particular as to form and wording, so be careful and be accurate! Usually, both the Applicant and the Respondent review and sign the order the Applicant has drafted. Once that is done, the Applicant gives the draft order to the Court Registry for approval and "entry."

The registry enters the draft order by first checking it against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order is signed and stamped by the registry and entered into a book containing all of the various orders of the court.

Note that while an entered order is the "official" order of the court, the order is binding on both parties from the moment the judge or master makes the order, and each party must behave according to the terms of the order, regardless of whether it takes a day or a month to enter the order.

Timelines and Deadlines

The following is a summary of the timelines set out in Rules 44 and 51A of the Supreme Court Rules of Court. Rule 44 deals with interim applications and Rule 51A deals with setting those applications for hearing. The trick in counting time under these rules is to count backwards from the day you want to have the hearing set for.

Day	Applications Longer than 30 Minutes	Applications 30 Minutes or Shorter	Rule
16/12	Applicant delivers Respondent with Notice of Motion (Form 55) and supporting Affidavit(s).		44(5)
15/11
14/10
13/9
12/8
11/7
10/6
9/5
8/4	Respondent delivers Applicant with Response (Form 124) and supporting Affidavit(s).		44(6) 44(7)(b)(ii)
7/3	Applicant delivers Respondent with Outline Pts 1 & 2 (Form 125), Notice of Hearing (Form 126) and reply Affidavits.	Applicant delivers Respondent with Notice of Hearing (Form 126).	51A(8) 51A(12)(a)(i)
6/2		Applicant files application materials in court registry before noon.	51A(10)
5/1		Day of Hearing.
4/-
3/-	Respondent delivers Applicant with Outline Pt 3 (Form 126).		51A(12)(a)(ii)
2/-	Applicant files application materials and Chambers Record in court registry before noon and delivers the Respondent with the index to the Chambers Record.		51A(10) 51A(13)
1/-	Day of Hearing.

The above chart indicates the shortest possible time in which normal applications may be heard. While the Respondent must deliver his or her Response within 8 days, the Applicant is not required to deliver the Respondent with his or her Notice of Hearing the very next day. Remember that once the Response has been delivered, the date of the hearing will depend on when the Applicant chooses to deliver his or her Notice of Hearing!

Important Notes to this Chart: 1) If an application is being made for final judgement under Rule 18A, the Respondent has 11 days (not 8) to deliver his or her Response and supporting Affidavits to the Applicant. 2) The time between the delivery of the Notice of Hearing and the date of the hearing is set in "clear days," not calendar days. In counting "clear days," do not include Sundays or holidays. (The same rule goes for the filing of the application materials in the court registry and the time by which the Respondent must deliver the Applicant with his or her Outline Part 3.) To make matters worse, when you're counting clear days, the day on which the materials were delivered doesn't count, and the last day of the clear days is also a part of timeline. In otherwords, if you must wait 7 clear days before you can do something, day 1 is when the other party receives your notice. Day 2 is the start of the 7 clear days. Day 8 is the last day of the clear days... don't forget that Sundays and holidays don't count. Day 9 is the day you can finally act. For more information, have a look at Rule 3 of the Rules of Court and s. 29 of the provincial Interpretation Act. 3) Even if you follow the Rules to the letter, it's still possible to mess up. It's best err on the side of caution and add an extra day or two.

Back to the top of this chapter.

Interim applications are brought only after an action has been started. The person bringing the application, the Applicant, must file his or her Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the Respondent, the person against whom the application has been brought. The Respondent must then file a document called a Reply, and deliver a court-stamped copy to the Applicant. Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits, so the exchange of Affidavits will not be required.

The principle Rules of Court which relate to these documents and the application process are:

• Rule 5: court procedures for registries designated as "family justice registries"
• Rule 12: interim applications
• Rule 13: affidavits
• Rule 18: orders
• Rule 20: general rules about court procedures
• Rule 21: parenting after separation programs

A link to the Provincial Court Rules of Court is provided in the section Resources & Links.

Please note that it is important to read the whole of this segment, regardless of whether you're bringing an application or defending one, to get a proper picture of the application process, the documents required and the timelines and deadlines involved in an interim application.

When an Application can be Brought

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Reply, but they can be brought earlier, sometimes on the same day that the Applicant starts the action, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your action is filed in is a "family justice registry." The court clerk will tell you whether or not your registry is a family justice registry.

Family Justice Registries

Rule 5 of the Provincial Court (Family) Rules applies to registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to an action are required to jump through a number of hoops before the parties first appear in court.

• Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can set the parties' first appearance in court.
• Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to a number of out-of-court settlement services.
• Rule 5(6) says that only after the parties have met with a family justice counsellor they may ask to appear in front of a judge, and even then they must file a request to go before a judge, in Form 6.
• Rule 5(8) sets out some exceptions to the rule, which allows a party, in the case of urgent circumstances, to ask a judge for an exemption to all or part of the rule.

Registries designated as family justice registries must also apply Rule 21 to parties where their action involves the care and control of children or child support. Rule 21 sets out yet more hoops for the litigants.

• Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
• Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
• Rules 21(4) and (5) set out some exceptions to the rule, which allow a party to escape the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
• Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, such as parents who have been separated for many years being required to take the Parenting After Separation Program and parents being required to take the progam two or three times.

Once Rules 5 and 21 have been complied with, the parties to an action can follow the standard rules for bringing on an interim application, set out below.

Contact information for the Parenting After Separation Program is set out in the chapter "Children > Parenting After Separation."

Family Case Conferences

Family Case Conferences are similar in many ways to the Judicial Case Conferences common in the Supreme Court. The big difference between the two is that it is not mandatory that an FCC be held before an interim application can be brought. You need not wait for your FCC before you bring on an interim application.

Making an Application

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard form, Form 16, which comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with a copy at least seven dates before the date the application is set to be heard.

The hearing date will be fixed by the court, although the court clerk may accept your input as to a good date.

Defending an Application

If you have been served with a Notice of Motion, you may answer the application with a Reply, in Form 3. The Provincial Court's rules do not provide a specific form for a response to the Notice of Motion, nor do they have any particular rules about how a Notice of Motion is to be addressed. Most registries will accept a Reply, even though that is the form to be used to respond to an Application to Obtain an Order rather than a Notice of Motion. The rules do not specify when or if the Applicant must be served with your response.

Rule 12(4) does however provide that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.

The Hearing

On the date set for hearing, show up at court at the appointed time. Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and take a seat to one side of the centre podium.

The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in Affidavit format. Affidavits can be used, but for some reason this is rarely the case. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them.

Once the Applicant's case is done, the Respondent can present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses.

A discussion of courtroom protocol is available in the How Do I ? section of this website.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why he or she should have the order sought. The Respondent will be able to reply to this argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply.

Once argument has finished, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may "reserve" judgment until some later time.

After the Hearing

If the parties to the hearing were represented by lawyers, the Applicant's lawyer will usually draft an order based on the judge's judgment. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips!

Sample Documents

The link below will open a sample Notice of Motion in a new window.

In the sample Notice of Motion, our fictitious applicant, Simon Chang, is looking for an interim order about custody for himself and access for the respondent, Suzie Schwartz. (For more information about these topics, see the section "Children.")

• Form 16: Notice of Motion

This sample document is just that: a sample. While it represents a more or less accurate picture of how Simon Chang might fill out this form, it may not be applicable to your situation. Use it as a reference only together with the official court form.

Areas where you must supply information are indicated in black script.

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