Applying for an interim order in a Supreme Court family law case

“My kids live with my spouse, Gabby, most of the time. We set it up that way because of my work schedule. But I changed jobs a few months ago. I want to see the kids more. Gabby doesn’t agree, so I filled out some paperwork in our divorce case. A friend of mine gave Gabby a copy of the paperwork. Gabby sent me her reply, and we’re going to court in a month.”

– Elias, Langley, BC

An interim order is a temporary court order made after a case has started but before it ends. It lasts until another interim order is made. Or it can stay in place until the case is resolved by final agreement or an order made at trial.

Interim orders deal with important issues the parties disagree on. These can include parenting arrangements, child or spousal support, and who can live in the family home. They can also deal with urgent problems, including:

• protecting someone from family violence

• stopping someone from dealing with family property

• preventing the children from being taken out of town

• deciding where the children will live

An interim order can’t divide property or order a divorce. For those things, you'll need a final order. But for other unresolved issues, many separating couples get interim orders. That way they can get some structure to their reconfigured relationship while the case unfolds.

The BC Supreme Court has rules that set out the process for applying for an interim order.

In a family law case, there are typically two people involved in an application: the person making it (the applicant) and the person replying to it (the respondent). They are the parties in the case.

Let’s assume you’re the applicant. You start the process by filling out a notice of application. Then you serve it, along with your supporting documents, on the respondent. You don’t file anything in court yet.

If the respondent doesn’t agree with any part of the application, they serve you with an application response and supporting documents.

Once the respondent has replied, or their time to reply has run out, you set the hearing date. You do this by filing a notice of hearing of application in court, along with your application materials. Then you serve the notice of hearing on the respondent.

Shortly before the hearing, you must file some more material in court. At the hearing, each party will explain why the order should or shouldn’t be made. The court will consider the evidence and the law and then make a decision. This is recorded in an interim order. 

“Interim proceedings are summary in their nature and provide a rough justice at best.”

– M. (D.R.) v. M. (R.B.), a family law court case

Applications for interim orders don’t feature the full evidence available at trials. Neither party testifies during the hearing, nor can they ask the other questions. No witnesses are called. The evidence is given to the court through the affidavits prepared by the parties beforehand.

In this way, the results of an interim application may not meet all your expectations. But they can tide things over until you get a more complete resolution.

In most cases, you can’t apply for an interim order until you and the other party have attended a judicial case conference (JCC). A JCC is an informal, private meeting with a judge or associate judge. It’s a chance to try to resolve issues and plan the next steps in your case.

Some applications don’t need a JCC first. Examples include applications made without notice to the other party, applications to protect family property, and applications for orders you both agree to. If your situation is urgent, or if waiting for a JCC would be unsafe or unfair, you can ask the court for permission to apply before a JCC is held.

The applicant — let’s say it’s you — starts the process by preparing a notice of application. The court has a specific form that must be used, form F31. This form tells the other party and the court what order you want. It also explains the facts in support of the application and why the court should make the order.

You also prepare an affidavit in form F30 in support of your application. An affidavit is a legal document in which a person makes statements they swear are true. You may also need to prepare other supporting documents, depending on the type of order you’re seeking — for example, a financial statement (form F8) if you’re asking for support, or a guardianship affidavit (form F101) if you’re asking to be appointed a child’s guardian.  

Proposing the hearing date

In the notice of application, you can propose a date for the hearing. The date isn’t fixed yet. That happens later, when you file a notice of hearing of application (see step 4). But proposing a date lets the other party say in their response whether it works for them.

Before proposing a date, check with the court registry to find out what days the court hears interim applications in family law cases. Some court registries only hear these types of applications on certain days. It’s also a good idea to check dates with the other party or their lawyer. That way you can pick a date you both can attend.

Except for urgent applications, the earliest a hearing can usually take place is about 11 business days after you serve your application — a little over two weeks. (Business days don’t include weekends and holidays, when court is closed.)

You have to serve the notice of application and supporting documents on the other party. You do this before you file the material in court. This can be done by ordinary service. This means delivering or leaving the documents at the other party’s address for service. But it might also be possible to mail, fax, or email the documents. It all depends on what the other party put as their “address for service” in earlier documents.

Keep a copy of exactly what you served, and note the date you served it. You’ll need that date when you set the hearing (see step 4).

The respondent has five business days to respond from the time they were served with the notice of application. They can serve you with an application response and a supporting affidavit. The response says whether they agree or disagree with what you’re asking for, and whether the hearing date you proposed works for them.

You can then prepare a reply affidavit. In it, you reply to any new information in the other party's material. You must serve it on the other party within three business days after they served their response.

If the respondent agrees with what you’re asking for, you may not need a hearing. You can ask the court to make a consent order instead.

You can set your application down for a hearing once the respondent has served their application response, or once their five business days to respond have passed.

To set the hearing date, file these documents in the court registry where your family law case is ongoing:

• a notice of hearing of application (form F31.1)

• the notice of application you served

• the original of each affidavit you served

There is a court filing fee.

Most applications are set for 9:45 am on a day the court hears family applications. If you expect the hearing to take more than two hours, the court registry must fix the date and time instead.

Then serve a copy of the filed notice of hearing on the other party. You must do this at least four business days before the hearing date. (If the hearing will take more than two hours, different deadlines apply. You must file and serve the notice of hearing within seven days after the registry fixes the date, and at least 14 days before the hearing.)

The respondent files their application response and affidavit in court after you file the notice of hearing, and before the hearing starts.

Before the hearing, you need to file an application record in court. This is a binder with copies of all the documents related to the interim application. If your application is scheduled for 30 minutes or less before an associate judge, you may be able to file the application record electronically through Court Services Online.  

The material in the application record must be organized according to the specific requirements set out in the Supreme Court Family Rules. As well, you must send the other party a copy of the index (a table of contents) to the application record.

You must complete these two steps (filing the application record and sending the index to the other party) by 4 pm two business days before the hearing. For example, if the hearing is on a Wednesday, the deadline is 4 pm on the Monday before. You can’t file the application record more than five business days before the hearing. If you prepared a reply affidavit, file it by the same deadline.

The court hearing will take place in Supreme Court chambers. This is a public courtroom where all interim applications set for a particular day are heard. The hearing might be before a judge. Or it might be before an associate judge, a judicial officer who can decide interim applications. 

The parties make their submissions

You tell the judge or associate judge what orders you’re asking for. The respondent explains why the court shouldn’t do as you ask.

Neither party testifies during the hearing, nor can either party ask the other questions. The evidence is given to the court through the affidavits in the application record.

Be prepared to stay within the time estimate given for your hearing. The court expects parties to have their materials in order and to keep to the time set aside for them.

The court’s decision

After looking at the documents and listening to both parties’ submissions, the judge or associate judge makes a decision. They may make all, some, or none of the orders the applicant is asking for.

If either party has a lawyer, the lawyer usually prepares and files the written interim order made by the judge or associate judge. If neither party has a lawyer, the successful party prepares and files the written order in court.

The order is in place from the moment the judge or associate judge gives their decision. The order stays in place until the court makes another interim order on the same subject, or until the overall case is resolved by a trial or a settlement.

If you need an order right away — for example, to protect someone from family violence or to stop the other party from selling family property — you can ask the court to hear your application on short notice. In some cases, you can apply without notice to the other party. The usual steps and timelines in this guide won’t apply. Get legal advice if you can.

If your interim order no longer works for your situation, you can ask the other party about changing it. If you both agree, you can make a consent order that changes it (here’s a step-by-step guide). If you don't agree, you can:

• ask for a judicial case conference to try to sort things out with a judge’s help, 

• apply to change the interim order at a hearing (here’s a step-by-step guide), or

• schedule a trial if you want a final order.

The court will only change an interim order if there's important new evidence or a change in circumstances. For example, your spouse gets a higher paying job, or your child now lives only with you.