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 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 page 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 which should be proved for a variety of common interim applications.

Introduction

Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.

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 [http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.), 2006 BCSC 1921, a BC Supreme Court case, 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 subjects 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 support flowing. Interim applications are most often made to answer questions like these:

• Where will the children live most of the time?
• What time will each parent have with the children?
• Should child support be paid?
• Should spousal support be paid, and, if so, how much should be paid?
• Should only one spouse have the right to live in the family home?
• Should the property be frozen?
• Is a protection order necessary?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection 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, or
• not going to a particular place.

Protection orders are designed for the protection of a family member, and also 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 the family members.

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

• set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents,
• force someone to submit to a medical or psychiatric examination,
• authorize the preparation of a custody and access report, or
• fix dates for hearings 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 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 an 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 respondent or the application 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 replies 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 hearing the application makes a decision one way or the other (or, often, a bit of both ways).

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.

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, or to freeze the family property, 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

Each rule tells you the forms you need to use. Sample court forms and blank court forms are linked to in available in Sample Supreme Court Forms (Family Law).

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 torch the family home.

Supreme Court Family Rule 7-1(3) 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, without the need for a further JCC.

JCCs are discussed in more detail in the page on Case Conferences in a Family Law Matter in this chapter.

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 Supreme Court Family Rule 6-2, usually 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 below in more detail.

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,
4. the affidavits or other evidence on 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 which must be used is Form F31, linked to in the page for Sample Supreme Court Forms (Family Rules). 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. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the Supreme Court Family Rules and linked to in the page for Sample Supreme Court Forms (Family Rules).

The process for drafting affidavits and the rules about the content of affidavits are discussed in How Do I Prepare an Affidavit?.

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.

To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the applicant by ordinary service, usually 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?.

The Application Response and supporting affidavits 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.

Application Response

An 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 on 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 which must be used is Form F32, set out in the Supreme Court Family Rules, and linked to in the page for Sample Supreme Court Forms (Family Law). There is no fee to file an Application Response.

The application respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the applicant, also by a Notice of Application. This is called a cross-application. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

Supporting affidavits

An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the Supreme Court Family Rules, and linked to in the page for Sample Supreme Court Forms (Family Law).

The process for drafting affidavits and the rules about the content of affidavits are discussed in the How Do I Prepare and Affidavit?.

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 answering new issues raised by the Application Response and supporting affidavits of 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. 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 thirty. 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.

Application Records

The applicant must prepare the Application Record for the application. When both parties have an application scheduled to be heard on the same day, the parties 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.

An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Supreme Court Family 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 a passing 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, they way these appear at the top of all other court documents.
2. The title of the document being filed ("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 walk 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 at https://eservice.ag.gov.bc.ca/cso/courtLists.do.

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."

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, and
• the facts which motivated the application.

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

A discussion of courtroom protocol is available in How Do I Conduct Myself in Court at an Application?.

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

After the hearing

It is 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 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 change depending on whether the application is for a 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 twelve business days of the hearing.
• For applications to change a final order, within twenty-one 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 fourteen 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 Supreme Court Family Rule 10-6; 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 an adjournment — a delay — of your application.

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 hearing date.

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.

Most often, applications in the Provincial Court are based on oral evidence rather than affidavits. As a result, the exchange of affidavits is not a mandatory part of the process.

The principle Provincial Court (Family) Rules which relate to these documents and the application process are:

• Rule 1: definitions
• Rule 5: court procedures for registries designated as "family justice registries"
• Rule 12: interim applications
• Rule 13: affidavits
• Rule 18: orders
• Rule 20: general rules about court procedures
• Rule 21: parenting after separation program

A registry means a particular courthouse of 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, such as might be the case if the respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your 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 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 that 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) sets out some exceptions to the rule that may allow a party to ask a judge for to be exempted from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where the court proceeding involves orders about the care of children or child support. Rule 21 sets out yet more hoops to jump through, however 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 in the case of urgent circumstances.

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

Family Case Conferences

Family Case Conferences (FCCs) are similar in many ways to the Judicial Case Conferences (JCCs) 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. Both FCCs and JCCs are discussed in the page on Case Conferences in a Family Law Matter.

Making an application

To make an interim application, the applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard court form, Form 16, that comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. It is also available electronically and is linked to in the Sample Provincial Court Forms (Family Law) page. 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.

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.

The hearing

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) 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 one side of the centre podium.

The judge will ask you to identify yourself and will ask the applicant what his or her application is all about. Stand whenever the judge speaks to you. The applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in affidavit format. Affidavits can be used, but for some reason this is rarely the case. Most judges would prefer to have an affidavit, and 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.

A discussion of courtroom protocol is available in the How Do I Conduct Myself in Court at an Application?.

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 may reserve judgment until some later time.

After the hearing

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

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, 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 in support of the most common kinds of interim applications in family law matters. This is only a rough guide; the particular facts that are important will change from case to case.

Care of children

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

• the children's names, birthdates 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 most responsible for arranging things like visits to the doctor and dentist,
• who was most 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, and
• a description of any actual problems with a parent's capacity to care for the children.

If the application is to change an order about the care of the children, important facts will include the facts which address the threshold legal test...

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

...as well as other important facts such as:

1. how the order had worked out,
2. did the parents follow the terms of the order, and
3. has 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 which address the threshold legal test...

• why the agreement is not in the best interests of the children.

...as well as other important facts such as:

1. how the agreement has worked out,
2. did the parents follow the terms of the agreement, and
3. has the agreement met the children's needs and if not, why not.

Child support

The important facts that go into an application for child support are:

1. the children's names, birthdates and ages,
2. how the children's time is divided between the parents,
3. whether some or all of the children are stepchildren to the person who is to pay child support,
4. whether some or all of the children are receiving child support from another parent,
5. the nature of each parent's employment, and
6. each parent's income from their employment and and any other source.

Applications about child support typically require that each parent cough up certain documents 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:

1. the last three years of personal income tax returns,
2. all notices of assessment or reassessment received in relation to the last three tax years, and
3. a recent paystub or a letter from an 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 chequestubs from their employment. People who are self-employed in an unincorporated business will also have to produce:

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

People who are self-employed by a corporation will also have to produce:

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

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,
2. has there been a change in the needs and circumstances of the child,
3. have you discovered new evidence about income or a person's ability to earn income since the last hearing, or
4. have you discovered proof that someone's financial disclosure was inadequate since the last order was made?

...as well as other important facts such as:

1. each party's present income,
2. the child's continuing entitlement to receive child support, and
3. 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...

• should the court make a different order than what was agreed to?

Spousal Support

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

1. the date the parties began to live together and the date they married;
2. the date of separation;
3. the parties' ages, including the proposed recipient's age at the date of separation;
4. each party's present health;
5. any factors limiting a party's ability to obtain employment;
6. the parties' present employment circumstances;
7. the parties' employment history during marriage, including any periods of unemployment;
8. each party's present income and the sources of that income;
9. a description of the each party's living expenses after separation;
10. any career sacrifices made during the relationship;
11. the parties' education and training history, prior to and during the marriage;
12. a description of any education and training taken after separation, especially any education geared to finding employment;
13. the ages and school status of the children at the date of separation; and,
14. the arrangements that have been made for the care and control of any children.

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

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

...as well as other important facts such as:

1. each party's present income;
2. each party's income at the time of the most last order;
3. the steps the recipient has taken to become financially self-sufficient;
4. education or training taken by the recipient since the order was made;
5. any employment taken by the recipient since the order or agreement was made;
6. any changes in the employment circumstances of the payor;
7. whether the recipient has remarried or is in a new unmarried spousal relationship; and,
8. 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. Under the first test, you could include facts that show that there were problems when the agreement was negotiated:

1. a party failed to disclose relevant income, property or debt;
2. one party took advantage of the other party's vulnerability or ignorance;
3. a party didn't understand the nature of the agreement;
4. the agreement is unconscionable; or,
5. 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:

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

All applications about spousal support typically require that each parent 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:

1. the last three years of personal income tax returns;
2. all notices of assessment or reassessment received in relation to the last three tax years; and,
3. a recent paystub or a letter from an 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 chequestubs from their payments. People who are self-employed in an unincorporated business will also have to produce:

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

People who are self-employed by a corporation will also have to produce:

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

Protection and Restraining Orders

The court can make a number 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 _______ chapter.

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 _______ chapter.

Further Reading in this Chapter

Return to the first page in this chapter.

• other chapters

Page Resources and Links

Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.

Legislation

• FLA
• Supreme Court Act
• SC rules of court
• Provincial Court Act
• PC rules of court

Links

• bulleted list of linked external websites referred to in page

...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.

To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Justice Education Society about interim applications featuring a great series of instructional videos.