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| {{JP Boyd on Family Law TOC|expanded = bcsc}}{{JPBOFL Editor Badge | | {{JP Boyd on Family Law TOC|expanded = bcsc}}{{JPBOFL Editor Badge |
| |ChapterEditors = [[Iris Turaglio]] | | |ChapterEditors = [[Iris Turaglio]] |
| }}Once a 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. If the family matter is 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 less formal. | | }}Once a BC Supreme 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. |
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| This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Provincial Court and in the Supreme Court, and reviews some of the facts that are important for a variety of common applications. | | This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the BC Supreme Court, and reviews some of the facts that are important for a variety of common applications. |
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| ==Introduction== | | ==Introduction== |
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| #the court proceeding has ended with a settlement that addresses and resolves all of the issues that would normally be wrapped up by a trial. | | #the court proceeding has ended with a settlement that addresses and resolves all of the issues that would normally be wrapped up by a trial. |
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| Interim orders can be very useful in establishing basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''[http://canlii.ca/t/1q6cl M.(D.R.) v M.(R.B.)]'', a 2006 case of the Supreme Court of British Columbia, the judge described interim orders saying: | | Interim orders can be very useful in establishing basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''[https://canlii.ca/t/1q6cl M.(D.R.) v M.(R.B.)]'', a 2006 case of the Supreme Court of British Columbia, the judge described interim orders saying: |
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| <blockquote>"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.</blockquote> | | <blockquote>"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.</blockquote> |
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| ===Interim applications in a nutshell=== | | ===Interim applications in a nutshell=== |
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| The process for making or defending interim applications, whether you're in the Provincial Court, the Supreme Court or the Court of Appeal, is a miniature version of the process for starting or defending a court proceeding, and works more or less like this: | | The process for making or defending interim applications in the BC Supreme Court is a miniature version of the process for starting or defending a court proceeding, and works more or less like this: |
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| *The person making the application, the ''applicant'', prepares the 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''. | | *The person making the application, the ''applicant'', prepares the 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''. |
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| 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 provide all the details about how interim applications are set for hearing and heard. It is ''very'' important to understand how the rules about interim applications work. | | 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 provide all the details about how interim applications are set for hearing and heard. It is ''very'' important to understand how the rules about interim applications work. |
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| ==The Provincial Court== | | ==The BC Supreme Court process for interim applications== |
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| {{Template:BCPCJPBOFL2022}}
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| The information in this section ''does not'' apply to family law cases in the Victoria or Surrey registries of the Provincial Court. Those cases are managed under the Early Resolution Model, which is governed by special rules. For more information about the Early Resolution Model, read the resources published by the [https://www.clicklaw.bc.ca/resource/4844 BC Government].
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| At the other Provincial Court registry locations, interim orders can typically be sought after a court proceeding has been started. This will mean an [[PCFR Form 3 Application About a Family Law Matter|Application About a Family Law Matter]] in Form 3 is probably filed, as well as the [[PCFR Form 6 Reply to an Application About a Family Law Matter|Reply to an Application About a Family Law Matter]] in Form 6 and most likely Financial Statements as well.
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| The ''family management conference'' will likely be the first time the parties meet in front of a judge (or family justice manager), and offer the first opportunity for interim orders. The new [https://canlii.ca/t/b8rn Provincial Court Family Rules] encourage parties to resolve their issues in these initial conferences, including what interim support payments should look like and what parenting time schedules should be followed even if a final resolution will need to wait for a full trial. When interim issues are not resolved after the family management conference, the judge or family justice manager usually books the parties for a family settlement conference or even another family management conference.
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| Still, there are times when an urgent or unexpected need arises and an interim application is required outside of the usual conferences. The Provincial Court Family Rules has set out pathways, and special forms, for the common circumstances when an interim application is needed:
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| * [[PCFR Form 15 Application About Priority Parenting Matter|Form 15 Application About Priority Parenting Matter]] is used when a decision needs to be made quickly about a parenting issue that the guardians cannot agree on, for example Covid-19 vaccination .
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| * [[PCFR Form 16 Application for Order Prohibiting the Relocation of a Child| Form 16 Application for Order Prohibiting the Relocation of a Child]] is 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 68 of the ''[[Family Law Act]].
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| * [[PCFR Form 29 Application About Enforcement|Form 29 Application About Enforcement]] is used when a party needs to enforce a term in an order or agreement that the other party is not following, for example denial of parenting time.
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| * [[PCFR Form 12 Application About a Protection Order|Form 12 Application About a Protection Order]] is 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]]''.
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| * [[PCFR Form 11 Application for Case Management Order Without Notice or Attendance|Form 11 Application for Case Management Order Without Notice or Attendance]] is used to ask the judge for case management orders that the other party does not need to speak to, for example the right for the applicant to appear in court by another method of attendance, or to serve documents on another party by some other method than personal service.
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| * [[PCFR Form 10 Application for Case Management Order|Form 10 Application for Case Management Order]] is used to apply for case management orders that the other party might have an opinion about (and if they agree and consent to the same order, this form can also be used), for example to adjourn a court appearance, add another party, cancelling a subpoena, and many others.
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| * [[PCFR Form 39 Request for Scheduling|Form 39 Request for Scheduling]] is used if it's been less than a year since a party took any steps in the proceeding, and when certain conditions also apply (these are spelled out on the form), for example a party is applying for an interim order after completing a family management conference.
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| The person bringing the application, who we'll call the ''applicant'', must file their form, and then serve a copy of the application on all of the other parties to the court proceeding, who we'll call the ''application respondents''.
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| Usually it's required to give the other party notice about any interim application that will have an impact on them, and to serve them with the forms. As mentioned above in the description of Form 11, there are some case management orders that do not really affect the other party, and those applications are routinely allowed without notice to the other party.
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| Under some circumstances, however, the Court will consider what's called an ''extraordinary procedure'' for applications that will have an impact on the other party, but which need to be heard without that party's involvement because there is a real risk of serious consequences if they are warned about it. These are exceptions to the general rule that an application respondent should have a fair chance to reply to the applicant's interim application:
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| *An applicant who wants a protection order can file an [[PCFR Form 12 Application About a Protection Order|Application About a Protection Order]] in Form 12 can select the option to have it heard ''without notice''. A judge will consider if it's appropriate to make the order without notice to the other party, or if it's appropriate to serve the application respondent and give them a chance to respond.
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| *Certain Other ''without notice'' applications in Forms 15, 16, and 29 can be made in the right circumstances where there could be serious consequences. These forms should be filed with the [[PCFR Form 11 Application for Case Management Order Without Notice or Attendance|Application for Case Management Order Without Notice or Attendance]] in Form 11 for a judge to consider.
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| Applications in the Provincial Court are usually heard with oral evidence — evidence given by witnesses who are present in the courtroom — rather than with written evidence in the form of affidavits. (This is a big difference from how applications are dealt with in the Supreme Court, where evidence is usually given by affidavit). Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges like the convenience of having the evidence written out in affidavits.
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| <!--For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in the Helpful Guides & Common Questions section of this resource.-->
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| ====Family Justice registries====
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| The courthouses in Kelowna, Nanaimo, and Vancouver are Family Justice registries. In these registries, the parties are required to take participate in an individual needs assessment with a family justice counsellor, take a parenting course, and then attend a family management conference together where a judge or family justice manager will try to help the parties resolve their issues.
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| The idea behind this rule is good. People should try to resolve court proceedings without going to trial, and even if the dispute goes on these early meetings and conferences can point parties to important services and programs in their community that can help with things like parenting, employment, housing, and social assistance. However, there are times when having to meet with a family justice counsellor for a needs assessment or having a family management conference would make too much of a delay. See the note about ''exceptional procedure'', above.
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| ====Parenting Education registries====
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| All registries that are not Family Justice or Early Resolution registries are Parenting Education registries where the parties are required to complete a parenting course if there are claims relating to children under age 19, namely:
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| * guardianship,
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| * parenting children,
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| * contact with a child, or
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| * child support.
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| This course usually needs to be completed before a family management conference is scheduled, and before an interim order can be requested or applied for. There are some exceptions to this requirement and Rule 100 of the Provincial Court Family Rules explains these exceptions. If there is a consent order that resolves all the issues regarding any children, if a party doesn't speak the language the program is offered in (or has literacy challenges), or if a party cannot access the online program, an exemption can be requested using the [[PCFR Form 20 Notice of Exemption from Parenting Education Program|Notice of Exemption from Parenting Education Program]] in Form 20.
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| ===Defending an application===
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| If you have been served with an interim application, you may answer the application with a [[PCFR Form 19 Written Response to Application|Written Response to Application]] in Form 19. The written response is not a substitute for showing up to speak to the application, but it can be helpful to have. The form must be served on the other party before the court date.
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| ===The hearing===
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| On the date set for hearing, show up at court a bit earlier than the appointed time. It's especially important for the application respondent to attend court. If an application respondent doesn't come to court on the date set for the hearing of an application, the court may hear the application in the absence of the application respondent and make the order requested by the applicant. ''Don't ignore the hearing date!''
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| When you arrive, let the court clerk know which case you're involved with and what your name is. When your case is called by the clerk, walk up to the front of the courtroom. You and the other party will stand to either side of the centre podium. The judge will ask you to identify yourselves and will ask the applicant what their application is all about.
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| The applicant will explain the orders they are asking for, why they're asking for those orders, and will have the opportunity to call evidence. Evidence is usually provided orally in Provincial Court, although affidavits can certainly be used. Many judges would prefer to have an affidavit to read, so if you can prepare one, you should. The application respondent will have a chance to reply to the applicant's evidence, by:
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| #cross-examining the applicant's witnesses, and challenging the evidence they have given; or,
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| #filing an affidavit in reply to the applicant's affidavit.
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| 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.
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| After the evidence from both sides has been given, the applicant will have the opportunity to summarize their case and argue why the judge should make the order asked for. The application 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 application respondent's reply.
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| 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.
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| Remember to stand whenever the judge speaks to you, if you're able to stand. A discussion of courtroom etiquette and protocol is available in the Helpful Guides & Common Questions part of this resource under Courtroom Protocol. You may wish to <span class="noglossary">review</span> [[How Do I Conduct Myself in Court at an Application?]] in particular.
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| ===After the hearing===
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| 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.
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| 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.
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| ==The Supreme Court==
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| 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, or to take a step necessary to move the court proceeding closer to trial. 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, like a mortgage for example. | | 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, or to take a step necessary to move the court proceeding closer to trial. 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, like a mortgage for example. |
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| The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application process are: | | The main [https://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application process are: |
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| *Rule 1-1: Definitions | | *Rule 1-1: Definitions |
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| If you must bring an application before the judicial case conference 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 judicial case conference 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 judicial case conference. Once the first judicial case conference has been held, interim applications can usually be made at any time. | | If you must bring an application before the judicial case conference 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 judicial case conference 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 judicial case conference. Once the first judicial case conference has been held, interim applications can usually be made at any time. |
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| Judicial case conferences are discussed in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section of this chapter. | | Judicial case conferences are discussed in more detail in the [[Conferences and Supreme Court Family Law Proceedings|Case Conferences]] section of this chapter. |
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| ===Making an application=== | | ===Making an application=== |
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| #documents other than those Rule 10-6(14)(b) and (c) unless they're included with everyone's agreement. | | #documents other than those Rule 10-6(14)(b) and (c) unless they're included with everyone's agreement. |
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| The Supreme Court's [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notice 14] explains the information the cover page to the Application Record should include: | | The cover page to the Application Record should include: |
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| #the court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents; | | #the court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents; |
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| #the name of the party filing the Application Record, and the place, date, and time of the hearing, and the time estimate for the hearing. | | #the name of the party filing the Application Record, and the place, date, and time of the hearing, and the time estimate for the hearing. |
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| Administrative Notice 14 provides a helpful example of an acceptable cover page.
| | The Family Law in BC website provides a helpful [https://www.familylawinbc.ca/form/supreme-court-application-record-title-page-blank application record cover page template]. |
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| ===The hearing=== | | ===The hearing=== |
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| The master or judge will enter the courtroom at 10:00 am and will expect to begin hearing applications right away. Don't forget to stand, if you can, when the master or judge enters the courtroom! The court clerk will call each application by saying its number on the chambers list and the last names of the people involved. | | The master or judge will enter the courtroom at 10:00 am and will expect to begin hearing applications right away. Don't forget to stand, if you can, when the master or judge enters the courtroom! The court clerk will call each application by saying its number on the chambers list and the last names of the people involved. |
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| When each case is called by the court clerk, the parties walk up to the front of the court and identify themselves to the master or judge. For example, "I am Upphar Singh, 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 Helpful Guides & Common Questions part of this resource under [[How Do I Conduct Myself in Court at an Application?]] | | When each case is called by the court clerk, the parties walk up to the front of the court and identify themselves to the master or judge. For example, "I am Uphar Singh, 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 Helpful Guides & Common Questions part of this resource under [[How Do I Conduct Myself in Court at an Application?]] |
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| The applicant will address the master or judge first and present their case. The applicant will usually explain: | | The applicant will address the master or judge first and present their case. The applicant will usually explain: |
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| ===A comment about courtesy=== | | ===A comment about courtesy=== |
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| The [http://canlii.ca/t/8mcr Supreme Court Family Rules] allow an applicant to simply set the hearing date without consulting an 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 to your application. This is called an ''adjournment''. | | The [https://canlii.ca/t/8mcr Supreme Court Family Rules] allow an applicant to simply set the hearing date without consulting an 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 to your application. This is called an ''adjournment''. |
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| 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 at some point in the future. | | 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 at some point in the future. |
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| *''[[Family Law Act]]'' | | *''[[Family Law Act]]'' |
| *''[[Divorce Act]]'' | | *''[[Divorce Act]]'' |
| * ''[http://canlii.ca/t/849w Provincial Court Act]'' | | * ''[https://canlii.ca/t/84d8 Supreme Court Act]'' |
| * [http://canlii.ca/t/85pb Provincial Court Family Rules]
| | * [https://canlii.ca/t/8mcr Supreme Court Family Rules] |
| * ''[http://canlii.ca/t/84d8 Supreme Court Act]''
| | * ''[https://canlii.ca/t/84h8 Court Rules Act]'' |
| * [http://canlii.ca/t/8mcr Supreme Court Family Rules] | |
| * ''[http://canlii.ca/t/84h8 Court Rules Act]'' | |
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| ===Resources=== | | ===Resources=== |
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| * [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
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| | ===Links=== |
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| * [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/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/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices] |
| * [http://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling] | | * [http://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling] |
| * [https://justice.gov.bc.ca/cso/courtLists.do Supreme Court Chambers Lists] | | * [https://justice.gov.bc.ca/cso/courtLists.do Supreme Court Chambers Lists] |
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| ===Links===
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| * [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
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| * [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]] | | * [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]] |
| * [http://www.bccourts.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages] | | * [https://www.bccourts.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages] |
| * [https://www.clicklaw.bc.ca/question/commonquestion/1010 Clicklaw Common Question: I’m looking for information about the Parenting After Separation program]
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| {{REVIEWED | reviewer = [[JP Boyd]], 18 April 2020}} | | {{REVIEWED | reviewer = [[Iris Turaglio]], 4 January 2024}} |
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| {{JP Boyd on Family Law Navbox|type=chapters}} | | {{JP Boyd on Family Law Navbox|type=chapters}} |
