Difference between revisions of "Applying for an Interim Order in a Family Law Case in Supreme Court"
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Revision as of 01:07, 12 September 2020
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Greta Airhart, Findlay Gunnell Sandor in October 2018. |
While a family law case is in progress, the parties may need to get an “interim order” to deal with important or urgent issues. Learn the process for Supreme Court.
Understand the legal framework
The purpose of an interim order in a family law case
The parties involved in a family law case will often need an interim order after the case has begun but before it ends. Interim orders are temporary orders that last only until another interim order is made, or until the case is fully resolved.
Interim orders can deal with urgent problems that can’t wait, such as stopping someone from disposing of property or stopping the children from being taken out of town. Interim orders can also deal with questions about how the family will function until the case is resolved, such as where the children will live and whether interim support should be paid by one party to help the other with expenses.
The process involved
The British Columbia Supreme Court has rules that set out the details of the court’s process. Family Rule 10-6 sets out how to make an interim application in a family law case.
One person (the applicant) starts the process by preparing a notice of application. They file this form and some supporting documents in the court, and then serve the documents on the other party. The material sets out the order the applicant is looking for, explains why the court should make that order, and gives the day the application will be heard.
If the other party wants to object to any part of the application, they must file a response in the court and serve those materials on the applicant.
One full day before the hearing, the applicant must file some additional material in court.
At the hearing, each party will explain why the order the applicant seeks should or shouldn’t be made. The court will make a decision. The decision is recorded in an interim order that remains in force until another interim order is made or until the overall case is resolved.
The steps in the process
Step 1. Prepare the notice of application
One person (the applicant) starts the process by preparing a notice of application. The court has its own form that must be used, Supreme Court Form F31. This form sets out the order the applicant is looking for, explains why the court should make that order, and gives the day the application will be heard.
The applicant also prepares an affidavit, using Form F30. An affidavit is a legal document where a witness makes statements about facts they say are true. Depending on the type of order they’re seeking, the applicant may also need to prepare other supporting documents.
| Tip
You can download the notice of application and affidavit forms, as well as other court forms, from the BC government website. |
Picking the hearing date
In the notice of application, the applicant must set the date when the application will be heard. Except for urgent applications, the soonest an application can be heard is eight business days from the date the application materials are sent to the other party. (Business days are days the court is open for business; they don’t include weekends and holidays.)
The applicant gets to pick the date of the hearing unless the hearing will take two hours or longer, in which case the applicant must schedule the hearing date with the court registry staff.
| Tip
In picking the hearing date, the applicant should check with the court registry to find out what days the court hears interim applications in family law cases. Some court registries only hear these types of applications on certain days. |
Step 2. File the application in court
The applicant files the notice of application and affidavit in the court registry where their family law case is ongoing. The applicant must make three copies of the material. There is a court filing fee.
Step 3. Serve the notice on the other party
The applicant must serve the notice of application and supporting documents on the other party.
“Serving” means delivering or leaving the documents with them. This can be done by ordinary service, which means the documents can be dropped off with the other party or sent by mail, fax or email, depending on what the other party put as their "address for service" in earlier documents filed in the court case.
The documents must be served on the other party at least eight business days before the date set for the hearing.
Step 4. Wait for a response
The other party has five business days from the time they were served with the application to respond. They do this by filing a response and an affidavit in support in court and serving those materials on the applicant. The response says whether they agree or disagree with what the applicant is seeking.
The applicant can complete a responding affidavit, responding to any new information in the other party's material.
Step 5. Prepare the application record
Before the hearing, the applicant must file an application record in court. This is a binder with copies of all the documents related to the interim application. There are specific requirements for how this material is organized.
As well, the applicant must send the other party a copy of the index to the application record.
The applicant must complete these two steps (filing the application record and sending the index to the other party) by 4 pm on the day one full business day before the hearing. (This means one full business day must pass in between these steps and the hearing day.)
| Tip
The Family Law in BC website from Legal Services Society, the legal aid provider in BC, includes guides with step-by-step instructions on preparing and responding to an interim application. The instructions include how to prepare an application record. Visit familylaw.lss.bc.ca. |
Step 6. Attend the hearing
The hearing will take place in chambers, a public courtroom where all interim applications set for a particular day are heard. The hearing might be before a judge or a master, a judicial officer who can decide interim applications.
On the day of the hearing, the parties go to the chambers courtroom at 9:45 am and check in with the court clerk to say they are present in court. When the court clerk calls the name of the case, the parties (or their lawyers) approach the judge or master and introduce themselves.
The parties make their submissions
The applicant describes the orders they are asking for (listed in the notice of application), and outlines the facts (stated in their affidavit) that explain why the court should make those orders.
The other party outlines the facts (stated in their affidavit) that explain why the court shouldn’t do as the applicant asks.
Neither party testifies during the hearing, and neither can ask each other questions. All of the evidence is provided through the affidavits in the application record.
The court’s decision
After reviewing the documents and listening to the parties’ arguments, the judge or master makes a decision. They may make all, some or none of the orders the applicant is asking for.
Step 7. The interim order is filed in court
If a lawyer is representing either party, the lawyer usually prepares the written interim order from the decision of the judge or master, and files it in court. If neither party has a lawyer, the successful party prepares and files the written order.
The order is in force from the moment the judge or master gives their decision. The order remains in force until the court makes another interim order on the same subject or until the overall case is resolved by a trial or a settlement.
Get help
With more information
The Family Law in BC website from Legal Services Society, the legal aid provider in BC, includes guides with step-by-step instructions on preparing and responding to an interim application.
- Web: familylaw.lss.bc.ca
The Supreme Court BC Online Help Guide from Justice Education Society has videos on how to present your own case in chambers.
The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, describes the interim application process.
- Web: wiki.clicklaw.bc.ca
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