Difference between revisions of "Interim Applications and Provincial Court Family Law Proceedings"

Once court proceeding has started, it's often helpful, if not necessary, to get one or more short-term orders about important things like where the children will live, or whether and what amount of spousal support should be paid. Issues like these can't wait until the trial is over and need to be dealt with immediately, although they'll only be dealt with on a temporary basis until the trial can be heard. To get short-term orders like these, called ''interim orders'', you must make an ''interim application'' in court. In Provincial Court, interim orders can also come out of Family Management Conferences or Family Settlement Conferences where a discussion can be had with the judge about the kinds of interim orders that might be suitable, and the process is less formal.

In other words, interim orders are mean to tide people over until the court proceeding they're involved with is done. But these applications aren't heard with the benefit of the full evidence available at trial — and ''can't'' be heard with the full evidence available at trial — and the results they provide are sometimes crude and imperfect. If you need an interim order, make your application. But be prepared to accept what you get.

==The potential purposes of interim applications==

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, sometimes to get some financial support flowing, and sometimes to move a court proceeding toward trial. Interim orders are good for getting a routine in place, usually about the kids and support, and setting up some rules about the relationship between the parties.

''Conduct orders'', which are meant to govern a party's behavious, are available under Division 5 pf Part 10 of the ''[[Family Law Act]]'' and are orders that require someone to do or not do a specific thing, such as orders that:

*fix dates for conferences, like a Family Management Conferences or a Family Settlement Conferences, or

==Interim applications and family law matters==

Most Provincial Court family proceedings are started by a party filing a Form 3 Application About a Family Law Matter. For these cases, interim orders are typically be sought after the claimant has filed and served their Form 3, and once the respondent has filed and served their Form 6 Reply to an Application About a Family Law Matter (along with any Form 4 Financial Statements that are often required).  

The Family Management Conference ("FMC") typically offers the first opportunity for either party to request interim orders about the big family law issues that bring people to court, such as child support, spousal support, parenting arrangements, guardianship, and the other issues defined in the Provincial Court Family Rules as ''family law matters''. The Provincial Court Family Rules encourages parties to resolve their family law matters at the FMC, even if only a temporary resolution is possible. This could include an interim plan for what support payments and parenting time schedules should look like should a final resolution need to wait for a full trial. When even interim issues are not able to be resolved following an FMC, the judge or family justice manager usually books the parties for a further FMC (where more or different interim orders could be made) or for trial (where final orders are made). If requested by a party or suggested by a judge, a judge might also decide that the matter should go to a Family Settlement Conference. See the section on [[Conferences and Provincial Court Family Law Proceedings]] in this chapter for more details.

There are times when orders for issues — issues outside of the typical definition of ''family law matters'' — need to be handled more directly and with less of a wait. Urgent issues, specific ''priority parenting matters'', protection orders, and some case management issues or enforcement actions may justify a process that bypasses the usual steps required in applications about family law matters. The Provincial Court Family Rules sets out pathways, and special forms, for the common circumstances when an interim application must be handled earlier than is normal. These applications can be made whether or not someone has filed a Form 3 Application About a Family Law Matter.  

* Form 12 Application About a Protection Order — used to ask the judge for an order that protects a family member from another family member under Part 9 of the ''[[Family Law Act]]''.

* Form 15 Application About Priority Parenting Matter — used when a decision needs to be made quickly about a ''priority parenting matter'' that the guardians do not agree on. These priority issues are specific, and defined in the Provincial Court Family Rules. Examples include consents for travel or medical treatment for a child, when a child is wrongfully removed or abducted, or when the child protection authorities become involved.

* Form 16 Application for Order Prohibiting the Relocation of a Child — used by the objecting party when there is an existing order or agreement about parenting arrangements, but the other party wants to move away with a child and has given written notice to the objecting party of their intention to do this under section 66 of the ''[[Family Law Act]]''. If no order or written agreement exists, parties should use the Form 15 Application About a Priority Parenting Matter process, whether that party wants to relocate the child or is opposing a potential relocation. Applications to prevent relocations have strict timelines and it is best to get legal advice as soon as possible if this is an issue.

* Form 29 Application About Enforcement — used when a party needs to enforce a term in a court order, parenting coordinator's determination, or written agreement that the other party is not following (for example, not paying support as agreed).

** Form 10 Application for Case Management Order — used to apply for ''case management orders'' which require the other party has notice, and require parties to appear before a judge. This includes adjourning a court appearance, cancelling a subpoena, appointing a lawyer for a child, and so on. If the other party agrees to the order you want, this form can also be used.  

** Form 11 Application for Case Management Order Without Notice or Attendance — used to ask the judge for case management orders that do not need to involve the other, such as permission to use another method of attendance (e.g. video conference), to serve documents on another party by some other method than personal service, or to extend a deadline for filing a court document.

* Form 39 Request for Scheduling — used if it's been less than a year since a party took any steps in the proceeding, and when certain conditions also apply (as spelled out on the form), for example a party is applying for an interim order after completing a Family Management Conference.

The person bringing the application, who we'll call the ''applicant'', must file their form, and then (unless the procedure is ''without notice'') serve a copy of the application on all of the other parties, who we'll call the ''application respondents''.  

Once the applicant's case is done, the application respondent may present their own case and provide evidence just the way the applicant did, either through witnesses or their own affidavit. The applicant will be able reply to the application respondent's evidence.  

Once everyone is done, the judge will give their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing.  

The facts that important in most applications for child support include:  

If the application is to change an order about spousal support, important facts will include those necessary to address the threshold legal tests for changing an order for spousal support. ''Has there been a change in the means or needs of either spouse since the last order was made?'' Other facts that might support a change in the amount of child support include:  

# whether parties' intended to have a final deal when the agreement was signed;

*''[[Divorce Act]]''

* ''[https://canlii.ca/t/84d8 Supreme Court Act]''

* [https://canlii.ca/t/8mcr Supreme Court Family Rules]

 

 

 

 

* [http://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]

* [http://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]

* [http://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

* [https://justice.gov.bc.ca/cso/courtLists.do Supreme Court Chambers Lists]

* [https://dialalaw.peopleslawschool.ca/interim-order-family-case-supreme/ People's Law School:Applying for an Interim Order in a Family Law Case in Supreme Court]]