Difference between revisions of "Interim Applications in Family Matters"
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Interim Applications in Family Matters (view source)
Revision as of 04:48, 27 February 2013
, 04:48, 27 February 2013→The Provincial Family Court
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*Rule 18: orders | *Rule 18: orders | ||
*Rule 20: general rules about court procedures | *Rule 20: general rules about court procedures | ||
*Rule 21: parenting after separation | *Rule 21: parenting after separation program | ||
A ''registry'' means a particular courthouse of the Provincial Court. | A ''registry'' means a particular courthouse of the Provincial Court. | ||
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#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; | #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; | ||
#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; and, | #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; and, | ||
#Rule 5(8) sets out some exceptions to the rule that may | #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 | 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; and, | |||
#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. | |||
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 | |||
====Family Case Conferences==== | ====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 | 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. | ||
===Making an Application=== | ===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 form, Form 16, | 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. 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 dates 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 | 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=== | ===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 | 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=== | ===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 | 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 | 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 | 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 ? | A discussion of courtroom protocol is available in the How Do I ? chapter. | ||
After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why | 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 | 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=== | ===After the Hearing=== | ||
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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. | 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== | ==Common Interim Applications== |