Interim Applications in Family Matters

Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether and what amount of spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an interim application in court.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts that should be discussed for a variety of common interim applications.

Introduction

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In M.(D.R.) v. M.(R.B.), 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, the judge had this to say about interim orders:

"Interim orders are only intended to be short-term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.

"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."

The 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, and sometimes to get some financial support flowing. Interim applications are most often made to answer questions like these:

• What time will each parent have with the children?
• Should child support be paid and, if so, how much should be paid?
• Should spousal support be paid and, if so, how much should be paid?
• Should only one spouse have the right to live in the family home?
• Should the property be frozen until it is divided by a final order or agreement?
• Is a protection order necessary?
• Is a form or restraining order or conduct order necessary?
• Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct orders.

Restraining orders require someone to not do a specific thing, such as:

• not disposing of property,
• not racking up debt,
• not talking to the children about the issues in the court proceeding,
• not making negative comments to the children about the other parent, or
• not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They require someone to not do a specific thing, such as:

• not communicating with the family member,
• not going to a place where the family member goes to school or works,
• not possessing weapons, or
• not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

• how parties will communicate with each other (ie: written communication by email only),
• requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
• requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
• requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

• set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
• authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
• fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or finishes at trial.

Making interim applications

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending a court proceeding and works more or less like this:

1. The person making the application, the applicant, prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the application respondent or the respondent.
2. The application 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 may prepare a reply to the application respondent's reply.
4. On the date of the hearing, the applicant argues why the order sought should be made, the application respondent argues why the order sought shouldn't be made, and the judge or master who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's the authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

The Supreme Court

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main Supreme Court Family Rules about the application process are:

• Rule 1-1: definitions
• Rule 5-1: financial disclosure
• Rule 6-2: ordinary service
• Rule 7-1: judicial case conferences
• Part 10: interim applications and chambers procedure
• Rule 10-2: where applications are heard
• Rule 10-3: chambers procedure
• Rule 10-4: affidavits
• Rule 10-6: normal application process
• Rule 10-9: urgent applications
• Rule 15-1: court orders
• Rule 16-1: costs
• Rule 21-2: time

For a summary of the application process, see How Do I Make an Interim Application in a Family Law Matter in the Supreme Court? in the How Do I? part of this resource. Links to and examples of the court forms used in the process can be found in Supreme Court Forms & Examples.

When to make an application

Generally speaking, interim applications are only brought after the respondent has had a chance to file his or her Response to Family Claim and a judicial case conference has been held. Applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately, as might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

Rule 7-1(3) of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

1. when an application is being made for an order restraining either or both parties from disposing of family assets,
2. when the order will be made with the agreement of both parties, or,
3. when the application is being made without notice being given to the other side (sometimes called an ex parte application).

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. Once the first JCC has been held, interim applications can usually be made at any time.

This chapter discusses JCCs in more detail in the Case Conferences section.

Making an application

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the application respondent, you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2. You can do this by sending them to the application respondent's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the application respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the application respondent. The timelines for interim applications are discussed in more detail below.

The Notice of Application

The Notice of Application describes:

1. the orders and declarations the applicant is asking for (also called the relief the applicant is asking for),
2. the facts supporting the application,
3. the legal grounds on which the application is made, meaning the specific (1) rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation and the caselaw that party is relying on in support of their court application,
4. the affidavits or other evidence which the applicant relies on in support of the relief sought,
5. the amount of time the applicant thinks it will take for the application to be heard, and
6. the date picked by the applicant for the hearing of the application.

The form you must use is Form F31, which you can download in an editable format in Supreme Court Forms & Examples. The cost to file an application is $80.00.

Supporting affidavits

An affidavit is a written summary of relevant facts and information, given under oath or affirmation.

The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier for a previous application. The form you must use is Form F30, which you can download in an editable format in Supreme Court Forms & Examples.

The process for drafting affidavits and the rules about the content of affidavits are discussed in How Do I Prepare an Affidavit? It's located in the How Do I? part of this resource under Affidavits.

Replying to an application

You must reply to an interim application if you object to any of the orders the applicant is asking for. If you agree with all of the orders sought by the applicant, you don't need to do anything. For a summary of this process, see How Do I Reply to an Interim Application in a Family Law Matter in the Supreme Court? It's located in the How Do I? part of this resource, in the section Interim Applications.

To reply to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in How Do I Personally Serve Someone with Legal Documents? It's located in the How Do I? part of this resource under Starting an Action.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a cross-application, by Notice of 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.

The Application Response

The Application Response describes:

• the orders sought by the applicant which the application respondent agrees to,
• the orders that the application respondent opposes,
• the orders to which the application respondent neither opposes nor consents (this is called taking no position on an order),
• the facts supporting the application respondent's position,
• the legal grounds on which any opposed orders are opposed,
• the affidavits or other evidence which the application respondent relies on in opposing the application, and
• the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in Supreme Court Forms & Examples. There is no fee to file an application response.

Supporting affidavits

An affidavit is a written summary of relevant facts and information, given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application. The form you must use is Form F30, which you can download in an editable format in Supreme Court Forms & Examples.

The process for drafting affidavits and the rules about the content of affidavits are discussed in How Do I Prepare an Affidavit? It's located in the How Do I? part of this resource under Affidavits.

Responding to the Application Response

The applicant may prepare an affidavit responding to the affidavits provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed by the application respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the applicant's first affidavit.

The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the application respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the application respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.

A short note about time estimates

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

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 weeks or months. Applications that will take less than two hours are heard on a day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be 30. The court 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 might not be heard until much later in the day.

The Application Record

The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they must cooperate and prepare a joint Application Record.

The applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the applicant will be asking the court to hear. The applicant must serve a copy of the index of the Record on the application respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including running a couple of hex bolts through the left-hand margin. The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

1. the index to the Application Record,
2. the Notice of Application (Tab 1),
3. the Response to Application (Tab 2), and
4. the affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called tab dividers or index dividers by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

1. The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents.
2. The title of the document (usually just "Application Record").
3. The claimant's address for delivery, telephone number and fax number.
4. The respondent's address for delivery, telephone number and fax number.
5. The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.

The hearing

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign 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 in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the court lists are posted online for that day only on Court Services Online.

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 will call each application by its 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 will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the How Do I? part of this resource under Courtroom Protocol. You may wish to review How Do I Conduct Myself in Court at an Application?

The applicant will address the judge first, and present his or her case, explaining:

• what orders the applicant is asking the judge to make,
• why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the Divorce Act or the Family Law Act) that permits the judge to make the order), and
• the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present his or her side of the case and explain:

• which orders the application respondent agrees to and might agree to on conditions,
• which orders the application respondent opposes, and
• the facts that explain why the judge shouldn't make the orders the applicant is asking for.

The applicant will then have a chance to briefly answer the application respondent's argument. The application 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 application respondent questions during their presentations to clarify things.

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 and can take days, weeks or even months to be provided.

After the hearing

It is usually the job of the applicant's lawyer to turn whatever the judge or master has decided into a written order. If the applicant doesn't have a lawyer, the lawyer for the application respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will enter the order in the court's book of orders by checking the draft order prepared by the lawyer 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 will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the official order of the court, the order takes effect and is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

Timelines

The rules about the timelines for chambers applications can be complicated, and may change depending on whether the application is for an interim order, a final order, or an order changing a final order.

Making an application

The applicant must file and serve the Notice of Application and supporting materials:

• For interim applications, within eight business days of the date picked for the hearing.
• For summary trial applications, within 12 business days of the hearing.
• For applications to change a final order, within 21 business days of the hearing.

Replying to an application

The application respondent must file and serve the Application Response and supporting materials:

• For interim applications, within five business days of being served with the Notice of Application.
• For summary trial applications, within eight business days of being served.
• For applications to change a final order, within 14 business days of being served.

Responding to an application response

The applicant must file and serve any new supporting materials, usually limited to new affidavits:

• By 4:00pm on the business day that is one full business day before the hearing date.

Application records

The applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the application respondent:

• By 4:00pm on the business day that is one full business day before the hearing date.

Sample timelines

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6 of the Supreme Court Family Rules; nothing stops you from agreeing to a more generous set of due dates.

Monday	Tuesday	Wednesday	Thursday	Friday
Applicant files and serves application materials on the application respondent.	First business day after service.	Second business day after service.	Third business day after service.	Fourth business day after service.
Fifth business day after service.   Application respondent files and serves reply materials.	Sixth business day after service.	Seventh business day after service.   Applicant files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.	Eighth business day after service.   One business day before the date of the hearing.	DAY OF HEARING

In this example, the application respondent's materials are due on Monday on the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the application respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the applicant serves the interim application materials and the date of the hearing; all of the steps after the holiday get bumped back by one day.

Monday	Tuesday	Wednesday	Thursday	Friday
Applicant files and serves application materials on the application respondent.	First business day after service.	Second business day after service.	Third business day after service.	Fourth business day after service.
HOLIDAY.	Fifth business day after service.   Application respondent files and serves reply materials.	Sixth business day after service.	Seventh business day after service.   Applicant files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.	Eighth business day after service.   One business day before the date of the hearing.
DAY OF HEARING.

A short note about courtesy

The Supreme Court Family Rules allow an applicant to simply set the hearing date without consulting the application respondent. Although this gives the applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the application respondent, you can expect the application respondent to show up on the hearing date and ask the court for a delay your application, called an adjournment.

If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or his or her lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on:

• the date when you'll have the application materials to the application respondent,
• the date when the application respondent will get his or her reply materials to you, and
• the date of the hearing.

The Provincial Family Court

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the applicant, must file a 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 is not required to file anything in reply to the application.

Applications in the Provincial Court are often based on oral evidence, evidence giving by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Althought the exchange of affidavits is not a mandatory part of the process, many judges appreciate the convenience of having the evidence written out in affidavits.

The principle Provincial Court Family Rules that relate to Notices of Motion and the application process are:

• Rule 1: definitions
• Rule 5: court procedures for courthouses that are 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 program

For a summary of the process, see How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?

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 to the applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for the Parenting After Separation program and whether it is also a family justice registry.

Family justice registries

Rule 5 of the Provincial Court Family Rules applies to those registries of the Provincial Court that have been designated as family justice registries. Under this rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

1. Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court.
2. Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute.
3. Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor.
4. Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the Parenting After Separation program is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

• 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 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 where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, most parents, once they have complied with Rules 5 and 21, can follow the standard rules for bringing on interim applications, described below.

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's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

This chapter discusses both FCCs and JCCs in the Case Conferences section.

Making an application

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that 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 his or her copy at least seven days before the date the application is set to be heard. The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in Provincial Court Forms & Examples. There is no charge to file a Notice of Motion.

Defending an application

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the applicant be served with a response.

For a summary of the process, see How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court? It is located in the How Do I? part of this resource, under Interim Applications.

The hearing

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which says 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.

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 stand to either 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. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit.

Once the applicant's case is done, the respondent may 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.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply.

Once everyone is done, the judge will give his or her judgment on the application. The judge may give his or her 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 his or her decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the How Do I? part of this resource under Courtroom Protocol. You may wish to review How Do I Conduct Myself in Court at an Application?

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 decision. 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, whether you have a paper copy of the order or not.

Common interim applications

The following discussion reviews the basic facts that will usually need to be proven for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

Care of children

Important factors

When making the first application about custody and access under the Divorce Act, or about parenting arrangements and contact under the Family Law Act, important facts will usually include:

• the children's names, birth dates and ages,
• where the children go to school and what grade they're in,
• any important health or educational concerns,
• the occupation of each parent,
• each parent's usual work schedule,
• how the parents shared the parenting of the children while they were together,
• who was responsible for arranging things like visits to the doctor and dentist,
• who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done,
• how the parents have shared the parenting of the children since they separated,
• the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation,
• a description of any actual problems with a parent's capacity to care for the children;
• any family violence concerns,
• other caregivers or support at or near a parent's home, and
• the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

Changing orders and agreements about the care of children

If the application is to change an order about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

• what is the change in the child's needs or circumstances since the original order was made, and
• how has this change affected the best interests of the children?

Other important facts might include:

• how the original order has worked out,
• if the parents followed the terms of the order, and
• if the order met the children's needs and if not, why not.

If the application is to set aside an agreement about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

• why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

• how the agreement has worked out,
• if the parents followed the terms of the agreement, and
• if the agreement met the children's needs and if not, why not.

Child support

Important factors

The important facts that go into most applications for child support are:

• the children's names, birth dates and ages,
• how the children's time is divided between the parents,
• whether some or all of the children are stepchildren to the person who is to pay child support,
• whether some or all of the children are receiving child support from another parent,
• the nature of each parent's employment,
• each parent's income from their employment and any other source, and
• whether the children have special or extraordinary expenses.

Basic financial information

Applications about child support typically require that each parent cough up certain documents in order to establish his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

• the last three years of personal income tax returns,
• all notices of assessment or reassessment received in relation to the last three tax years, and
• a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

• statements of professional or business income,
• a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
• balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

• corporate financial statements for the three most recent fiscal years,
• corporate tax returns for the three most recent fiscal years, and
• a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

Changing child support orders and agreements

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

1. has there been a change that would cause a different amount of support to be paid under the Child Support Guidelines, usually a change in someone's income,
2. has there been a change in the needs and circumstances of the child,
3. whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
4. whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

• each party's present income,
• the child's continuing entitlement to receive child support, and
• updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

• what amount of support should be court order, and
• why should the court make a different order than what was agreed to?

Spousal support

Important factors

When making the first application for spousal support, the important facts will include:

• the date the parties began to live together and the date they married,
• the date of separation,
• the parties' ages, including the proposed recipient's age at the date of separation,
• each party's present health,
• any factors limiting a party's ability to obtain employment,
• the parties' present employment circumstances,
• the parties' employment history during marriage, including any periods of unemployment,
• each party's present income and the sources of that income,
• a description of the each party's living expenses after separation,
• any career sacrifices made during the relationship, including any promotions, raises or educational opportunities foregone by the party,
• any moves during the parties' relationship that impacted either or both parties' employment prospects,
• the parties' education and training history, prior to and during the relationship,
• contributions by one party to the other party's career during the relationship,
• a description of any education and training taken after separation, especially any education geared to finding employment,
• the ages and school status of the children at the date of separation, and
• the arrangements that have been made for the care and control of any children.

Basic financial information

All applications about spousal support typically require that each spouse cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

• the last three years of personal income tax returns,
• all notices of assessment or reassessment received in relation to the last three tax years, and
• a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

• statements of professional or business income,
• a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
• balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

• corporate financial statements for the three most recent fiscal years,
• corporate tax returns for the three most recent fiscal years, and
• a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

Changing spousal support orders or agreements

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

1. has there been a change in the means or needs of either spouse since the last order was made,
2. whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
3. whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

• the terms of the initial order (and attach a copy of the initial order as an exhibit),
• each party's present income,
• each party's income (and other financial circumstances if relevant) at the time of the initial order,
• the steps the recipient has taken to become financially self-sufficient,
• education or training taken by the recipient since the order was made,
• any employment taken by the recipient since the order or agreement was made,
• any changes in the employment circumstances of the payor,
• whether the recipient has remarried or is in a new unmarried spousal relationship, and
• whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

• a party failed to disclose relevant income, property or debt,
• one party took advantage of the other party's vulnerability or ignorance,
• a party didn't understand the nature of the agreement,
• the agreement is unconscionable, or
• a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is significantly unfair and talk about:

• how long it has been since the agreement was signed,
• any changes in the needs or circumstances of either party,
• the parties' intention to have a final deal when the agreement was signed,
• how important the agreement was to each party in planning their lives and arranging their affairs, and
• how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

Protection orders and restraining orders

The court can make a variety of orders where someone is in need of protection, depending on what the circumstances are and which order makes the most sense. More information about these orders can be found in the section Family Violence in the chapter Other Family Law Issues.

The court can also make orders designed to protect assets from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section Protecting Property & Debt in the chapter Property & Debt.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Provincial Court Act
• Provincial Court Family Rules
• Supreme Court Act
• Supreme Court Family Rules
• Court Rules Act

Resources

• Provincial Court Family Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling
• Court Chambers Lists Website

Links

• Provincial Court website
• Supreme Court website
• Justice Education Society: Court tips for parents representing themselves (video)
• Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)
• Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)
• Supreme Court Information Packages
• Supreme Court: Chambers Application Package (Word DOC)
• Parenting After Separation Program
• Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)
• Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger, June 7, 2017.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.