9 Unknown
12. Other Orders (Schedule 5 Other Orders) there are two other orders that the Claimant has requested in the F3 Notice of Family Claim: an order for a name change and an order for costs to be paid by the Respondent.
The Respondent agrees with the order for a name change but disagrees with the orders for spousal support and the order for costs.
In the first field under Other Orders, key: Name change from Maya Lucia Plisetskaya to Maya Lucia Pavlachenko. Click in the Agree button.
Family Law Chapter 8
8.60
Then click on the Add Claim button and key in: Costs to be paid by the Respondent.
Click in the Disagree button. Each party should pay their own costs.
13. Under My Address for Service click on the down facing arrow beside Select Service for and select Mr. Plisetskaya’s name. The address should automatically fill in – adjust formatting as needed.
14. Click on the boxes beside Party’s Certificate and Legal Adviser’s Certificate
15. Select the button “Preview and Sign Documents”
16. Key the signature block Gail B. Amherst at the bottom of the F4 and the Lawyer’s Certificate
17. Click on the buttons for the Party’s Certificate and Legal Adviser’s Certificate
18. Print one copy of the F4, paper clip it together and place it loosely in the client folder to be included in the Trial Record Book. Do not punch holes in it.
ASSUME you prepare Form F8 Financial Statement
Download the F8 Financial Statement from the Supreme Court website. Complete and print the first page only. Place the completed first page loosely in the client folder to be included in the Trial Record Book. Do not punch holes in the copy.
Today is May 6, 2023.
Mrs. Amherst took the original and two copies of the F4 Response to Family Claim and the F8
Financial Statement to the Vancouver Court Registry yesterday. The court clerk stamped all three copies of each document. She kept the original of the F4 and the original of the F8 for the court files. The clerk returned two stamped copies to Ms. Amherst.
Ms. Amherst has placed the stamped copies of each F4 and F8 that she filed at the Vancouver Court Registry on your desk. She asks you to prepare a transmittal letter to the Claimant’s lawyer, Jake Schultz, asking him to sign admission of delivery of the documents.
You will send the two stamped copies of the forms F4 and F8 to Mr. Schultz asking him to sign admission of delivery on one of each form and to return them to you. He will keep one copy and return the other to you to be placed in the Plisetskaya client folder.
You prepare a transmittal letter to Jake Schultz, lawyer for the Claimant.
1. Download the Amherst Brown Letterhead file from the Data Files folder and save it with the name GA8PlisetskayaLttr1YourLastName.
2. Use the precedent on the next page as your guide. You will have to adapt the body of your letter. You are sending two copies each of the F4 and the F8. You want Mr.
Schultz to sign one copy of each document and return the signed documents to you.
3. Use Arial 11 pt. font for your letter.
4. Print one copy of the letter and fasten it in client folder on the correspondence side.
Family Law Chapter 8
8.61
Amherst Brown & Company 5432 West Pender Street Vancouver, BC V3L 2B5
Telephone: (604) 555-0150
Barristers and Solicitors
Fax: (604) 555-0151
February 22, 2023
Leave 3 to 8 blank lines after the date.
Jake Schultz
Barrister and Solicitor
Leave only 1 blank line after the inside
Suite 300 – 3890 West Hastings Street
address, the greeting, and the subject line.
Vancouver, BC V7E 4R5
Dear Mr. Schultz:
Re: DeHoney Divorce
The line under the two- or three-line subject line
Your File No. JS-8942
must be as long as the longest line.
Our File No. GBA-456-23
Enclosed are two copies of each of the Response to Notice of Family Claim, Counterclaim and the Respondent’s Financial Statement in the above action. Please endorse your admission of delivery on the appropriate copies and return them to the writer at your earliest convenience.
Yours truly,
AMHERST BROWN & COMPANY
Leave enough room under the firm name for the lawyer
to sign, about three blank lines.
Gail B. Amherst
GBA:yoi
Enclosures 6
The enclosure notation must be the last line of the letter.
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8.62
Ms. Amherst places an acknowledgement letter from Jake Schultz admitting delivery of the F4
and the F8 on your desk and asks you to fasten it in the client folder.
You receive a letter admitting delivery of Forms F4 and F8.
1. Download and print the file named GA8SchultzLttr1 in the folder named DataFiles.
2. Read the letter admitting delivery of the F4 Response to Family Claim.
3. Fasten the letter in the client folder on the correspondence side of the file.
Today is May 22, 2023
Ms. Amherst stops by your desk to say good morning on her way to meet with a client. She expresses surprise that the Claimant’s F20 List of Documents has arrived in the mail. She wasn’t expecting it to come so quickly. After all, the Claimant had 35 days after delivery of the Response to Family Claim to prepare the F20.
Ms. Plisetskaya must be in a hurry for this divorce!
Ms. Amherst gives you the letter to fasten in the Plisetskaya client folder, but keeps the Claimant’s List of Documents to read when she is back in the office.
You receive a letter requesting admission of delivery of the Claimant’s F20 List of Documents.
1. Download the file name GA8SchultzLttr2 in the folder named DataFiles.
2. Read the letter requesting the admission of delivery of the Claimant’s F20 List of Documents.
3. Fasten the letter in the client folder on the correspondence side of the file.
Today is June 1, 2023
Ms. Amherst places the Claimant’s F20 List of Documents on your desk. She asks you to fasten it in the client folder and to write an acknowledgement letter to Jake Schultz admitting delivery of the F20 (their F20 is not simulated in the GA. There is no file to download.) The acknowledgement letter serves the same purpose as an Affidavit of Service—it proves that the opposing party has received the document.
You prepare an acknowledgment letter to Jake Schultz.
1. Download the Amherst Brown Letterhead file from the Data Files folder and save it with the name GA8PlisetskayaLttr2YourLastName.
2. Use the precedent on the next page as your guide. You will have to adapt the body of your letter by listing only the documents you are endorsing and sending back to Mr.
Schultz.
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3. Use Arial 11 pt. font for your letter.
4. Print one copy of the acknowledgement letter and fasten it in client folder on the correspondence side.
Today is June 2, 2023
Ms. Amherst has given you a list of the documents that Mr. Plisetskaya has in his possession.
She asks you to key the list on the Form F20 List of Documents and add it to the client folder.
ASSUME you prepare Form F20 List of Documents
Download the form from the internet. Complete the style of proceeding on the first page only, print it and fasten it to the left side of the client folder.
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Amherst Brown & Company 5432 West Pender Street Vancouver, BC V3L 2B5
Telephone: (604) 555-0150
Barristers and Solicitors
Fax: (604) 555-0151
February 26, 2023
Jake Schultz
Barrister and Solicitor
Suite 300 – 3890 West Hastings Street
Vancouver, BC V7E 4R5
Dear Mr. Schultz:
Re: DeHoney Divorce
Your File No. JS-8942
Our File No. GBA-456-23
Further to your letter of February 19, 2023, we enclose the Response to Family Claim, the Counterclaim, and the Financial Statement with our admission of delivery endorsed thereon.
Yours truly,
AMHERST BROWN & COMPANY
Gail B. Amherst
GBA:yoi
Enclosures 3
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8.65
Mr. Plisetskaya is concerned that Ms. Plisetskaya is going to lie in court. Ms. Amherst recognizes his concern and decides to make an appointment to examine for discovery.
The date of the appointment is June 15, 2023. A Form F21 Appointment to Examine for Discovery must be delivered to the Claimant at least 7 days before the appointment.
Ms. Amherst asks you to prepare the F21.
You prepare Form F21 Appointment to Examine for Discovery.
1. Download the Form F21 Appointment to Examine for Discovery and save it as
GA8F21YourLastName.
2. The document is to Ms. Plisetskaya and will be sent to her lawyer.
3. The examination for discovery will be held at Apex Court Reporters, Suite 668 – 2034
Hornby Street, Vancouver, British Columbia on June 15, 2023 at 1:00 p.m.
4. Ms. Amherst will sign the document on the 5th of June. Leave room for her to write in the date at the time that she signs.
5. Print one copy of Form F21 Appointment to Examine for Discovery and fasten it in client folder.
You prepare a transmittal letter to Jake Schultz, lawyer for the Claimant.
1. Download the Amherst Brown Letterhead file from the Data Files folder and save it with the name GA8PlisetskayaLttr3YourLastName.
2. Using the precedent on page 8.62 as your guide, send Mr. Schultz two copies of the F21
and ask him to sign one copy and return it to you.
3. Use Arial 11 pt. font for your letter.
4. Print one copy of the letter and fasten it in client folder on the correspondence side.
Today is July 3, 2023
The animosity between the Plisetskaya’s has not weakened. Their arguments are getting nastier, and Ms. Amherst has recommended that Mr. Plisetskaya set a trial date to let the court settle the issues between them. She asks you to contact the court to obtain a trial date and then to prepare the Form F44 Notice of Trial.
You prepare a Form F44 Notice of Trial.
1. Download the Form F44 Notice of Trial and save it as GA8F44YourLastName.
2. The F44 is filed by Vasily Alexander Plisetskaya at the Vancouver Court Registry.
3. The place of trial is set out in the F3 Notice of Family Claim.
4. The trial date and time: October 6, 2023 at 10:00 a.m.
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5. The parties disagree about the length of time the trial will take.
a. Mr. Plisetskaya believes the trial will take 2 days.
b. Ms. Plisetskaya believes the trial will take 1 day.
6. Leave the date open for Ms. Amherst to fill in when she signs.
7. Print one copy of the form and fasten it in client folder on the court documents side.
You prepare a transmittal letter to Jake Schultz, lawyer for the Claimant, asking for admission of delivery of the F44
1. Download the Amherst Brown Letterhead file from the Data Files folder and save it with the name GA8PlisetskayaLttr4YourLastName.
2. Use the precedent on page 8.62. You will have to adapt the body of your letter. You are sending two copies of the F44. You want him to sign and return one.
3. Use Arial 11 pt. font for your letter.
4. Print one copy of the letter and fasten it in client folder on the correspondence side.
Today is August 15, 2023
You prepare a Form F45 Trial Brief
Ms. Amherst and Mr. Plisetskaya will be attending a trial management conference on September 3, 2023. You must prepare and file a Form 45 to be filed and served on Ms.
Plisetskaya at least 7 days before the conference.
1. Download the Form F45 Trial Brief and save it as GA8F45YourLastName.
2. The Form F45 is filed by the Respondent, Vasily Alexander Plisetskaya at the Vancouver Court Registry.
3. The trial is scheduled for 2 days on October 6, 2023.
4. The issues in dispute are spousal support and costs.
5. The Respondent’s position on spousal support and costs is as set out on the Form F4
6. The witnesses are:
a. Vasily Alexander Plisetskaya—1.5 hours
b. Darya Powell–2349 West 4th Avenue, Vancouver, BC—1 hour
c. James Brunette–789 Burrard Street, Vancouver, BC—0.5 hour
d. Alexei Pavlachenko–1312 Water Street, Vancouver, BC—0.5 hour
7. There is one witness to be cross-examined: Maya Lucia Plisetskaya—2 hours
8. There are no orders affecting the conduct of the trial.
9. You are attaching the table of contents of your one evidence book and one book of authorities to this trial brief.
10. The orders sought are:
a. a divorce, put in the standard order
b. each party to pay their own costs
c. Vasily consents to the name change of Maya
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11. Gail Amherst will need 30 minutes for her opening at trial and an hour for her closing submissions.
12. Leave the date open for Ms. Amherst to fill in when she signs.
13. Print one copy of the form and fasten it in the client folder on the court document side.
14. The Trial Brief is eventually filed August 17, 2023.
Today is September 3, 2023.
Assume you have prepared a Certificate of Pleadings F36. Gail takes it to the courthouse and files it while there for the trial management conference which was held today. It was determined at the conference that the trial would likely take two days.
Today is September 5, 2023.
You have received the F36 signed by the Registrar, back from your registry agent. Ms. Amherst has been counsel in a lengthy trial. She has left the preparation of the Trial Record later than usual and is anxious for you to complete its preparation today, rush to the court registry to file it, and deliver it to Jake Schultz’s office because it must be filed and served at least 28 days before the trial. Note section 14-4 (5) of the SCF Rules.
You prepare the Trial Record.
1. You key the cover using the precedent on page 8.36 as your guide.
2. Key the index using the precedent on page 8.37 as your guide. The documents to be included in the Trial Record are
a. the F3
b. the F4
c. the F8 (Claimant)
d. the F8 (Respondent) Note you are including only the first page of the F8’s to save you printing, but your index should use the page numbers as if the full document were present.
3. Put the cover on top, the index behind the cover, then each of the listed documents in order, followed by two blank white pages for notes, and lastly the back cover. (In actual court documents the front and back covers would be of blue paper.) 4. Staple with three staples on the left side about ½ inch from the edge of the papers.
5. Neatly write consecutive numbers in the top right corner starting on the first page of the F3 and ending with the page of the F8 (as you are including only the first page of the F8’s to save printing, some of the page numbers are skipped).
6. On the top of the first page of each document, write the date the document was filed using the format:
Date filed: 06 November 2012.
a. the F3 – Date filed: 10 Apr 2023
b. the F4 – Date filed: 06 May 2023
c. the F8 (Claimant) – Date filed: 10 Apr 2023
d. the F8 (Respondent) – Date filed: 06 May 2023
e. the F45 Trial Brief filed: Aug 17, 2023
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7. Write your name on the cover and place the Trial Record loosely in the client folder.
Today is September 15, 2023
You prepare a Form F46 Trial Certificate which must be filed and served no less than 14 days and no more than 28 days before trial.
1. Download the F46 Trial Certificate and save it as GA8F46YourLastName. Close the online form and be sure you are working on the saved form.
2. The case number is on the F3.
3. The F46 is filed by Vasily Alexander Plisetskaya at the Vancouver Court Registry.
4. Gail Amherst estimates the length of trial will be 2 days.
5. Gail Amherst will sign the Trial Certificate. Leave the date open for her to fill in when she signs.
6. Print one copy of the form and fasten it in client folder on the court document side.
Today is October 10, 2023
The trial is over. Ms. Amherst has been successful in defending the divorce and Mr. Plisetskaya’s case has been won. The judge gave his decision at the end of the trial which occurred on the second day of trial. There will be no spousal support and each party will pay their own costs. Since the Respondent is considered to be “the winner”, it is up to Ms. Amherst to prepare the F52. She gives you the following instructions.
You prepare a Form 52 Final Order.
Download the Form F52 Final Order from the Supreme Court website and save it as
GA8F52YourLastName.
1. Click on Highlight Fields and enter the names of the Claimant and Respondent.
2. Select “The Honourable Mr.Madame Justice”.
3. Fills in automatically. You cannot insert the location or the date.
4. This order includes an Order for Divorce.
5. This order includes terms for other orders.
6. There are 2 order terms. (name change and costs)
7. There will be 2 lawyers signing.
8. Click on Generate Form.
9. The registry location is Vancouver.
10. At the dropdown menu under Before the Honourable, choose Mr. Justice. Fill in the name of the judge (L. R. Anderson), and the date the judgement was made (October 7, 2023).
11. Fill in the information about the trial and the names of the lawyers.
12. Do not add the statement about reserving judgement. Leave that blank.
13. Fill in the names of the parties and information about the marriage.
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14. In the first box under “THIS COURT ORDERS that:” key the following:
By consent, the Claimant’s name shall be changed from Maya Lucia Plisetskaya to Maya Lucia Pavlachenko
15. In the second box under “THIS COURT ORDERS that:” key the following:
Each party is to pay their own costs.
16. Be sure to key in the names of the parties after “lawyer for…..” If the full names are too long, it is permissible to use Claimant and Respondent.
17. Place a checkmark in the box beside “This form is complete and ready for submission.”
18. Print one copy of the form and fasten it in client folder on the court documents side.
Submission Instructions
1. Submit the client folder for grading.
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RE Divorce
DATE April 7, 2023
CLIENT IDENTIFICATION
FULL NAME OF CLIENT
VASILY ALEXANDER PLISETSKAYA (he/him/his)
TELEPHONE
(Home) 604-434-9731
(Cell) 778-370-1980
ADDRESS
#204-1845 West 7th Avenue
E-MAIL: plisetskaya_v@ubc.ca
Vancouver, B.C. V6K 1A7
BIRTH DATE
January 8, 1968
BIRTHPLACE: Moscow, Russia
BC RESIDENT SINCE
July 12, 1998
SIN
778 376 111
OCCUPATION
Physics Professor
INCOME:
$85,000.00
EMPLOYER:
UBC
TELEPHONE: 604-822-2211
Faculty of Science
2329 West Mall
Vancouver, BC V6T 1Z4
PARTICULARS OF MARRIAGE/RELATIONSHIP
COMMENCEMENT DATE OF COMMON-LAW RELATIONSHIP, if any:
DATE OF MARRIAGE
April 23, 1991
Place: Moscow, Russia
DATE OF SEPARATION
March 3, 2022
POSSIBILITY OF RECONCILIATION
None
CLIENT
SPOUSE
STATUS BEFORE MARRAGE
SINGLE
DIVORCED, NO CHILDREN
NAME BEFORE MARRIAGE
MAYA LUCIA PAVLACHENKO
VASILY ALEXANDER
PLISETSKAYA
SURNAME AT BIRTH
PAVLACHENKO
PLISETSKAYA
PARTICULARS OF THE PAST, CARE OF CHILDREN
The children of the marriage are independent adults (look at section 2 of the Divorce Act “children of the marriage).
SPOUSE IDENTIFICATION
NAME OF SPOUSE
MAYA LUCIA PLISETSKAYA (she/her/hers)
TELEPHONE
604-434-8727 (Home)
(Cell) 604-230-4520
ADDRESS
3656 West 8th Avenue
E-MAIL: plisetskaya_m@ubc.ca
Vancouver, B.C. V6R 1Z1
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8.71
April 23, 1973
BIRTHPLACE: Ryazan, Russia
BC RESIDENT SINCE
July 12, 1998
SIN
787-345-901
OCCUPATION
Professor of Classical Arts
INCOME
$85,000.00
EMPLOYER:
UBC
TELEPHONE 604-822-2211
Faculty of Classical Arts
2329 West Mall
Vancouver, BC V6T 1Z4
LAWYER OF SPOUSE:
Mr. Jake Schultz, Barrister and Solicitor
Client File No. JS-9131
Suite 300 – 3890 West Hastings Street
Vancouver, B.C. V7E 4R5
Telephone: 604-668-7227
Fax: 604-668-7200
CHILDREN
NAME
SEX
BIRTH DATE
PLACE OF BIRTH
REAL PROPERTY:
3656 West 8th Avenue, Vancouver, British Columbia
PERSONAL PROPERTY:
Already divided
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DIVORCE PROCEEDINGS—Applications
INTRODUCTION
So far we have been looking at how a family law action proceeds down the litigation path to trial.
We have also looked at the places where the parties can get off that path and pursue settlement. Judicial Case Conferences, Settlement Conferences, hiring private mediators, using arbitration, or negotiation with the help of their lawyers, are the principal off ramps of the litigation path into settlement. The vast majority of family law cases are settled prior to trial.
Failing such a settlement, we can see that it takes months for the pleadings to close, for the evidence to be gathered, and for the trial to be scheduled and arrive. As we know, many of the decisions in a family law case cannot wait all of that time. In addition, procedural problems or disputes along the way need a method to be worked out and lastly, even when a final order has been achieved, further steps to enforce or vary the order may be needed. Interlocutory applications are the procedure used to address these needs.
INTERLOCUTORY APPLICATIONS GENERALLY
An interlocutory application is an application made to the court for its assistance usually after the start of a proceeding and prior to its conclusion. They are also known as chambers applications or motions. Either side may make an interlocutory application.
Interlocutory applications usually deal with one or more of the following: a) Interim orders regarding parties, e.g. obtaining an order for: interim parenting time and decision-making authority, interim child or spousal support, possession of an asset like the family home or car etc.
b)
Procedural pre-trial matters, e.g. obtaining an order for substituted service, adding a party, adjourning trial, changing the place of trial, consolidating two or more proceedings to save time and expense, enforcing compliance with discovery procedures, obtaining security for costs etc.
c)
Enforcement or variation of an existing court order.
In effect, an interlocutory application is a mini-litigation proceeding within a litigation proceeding.
It follows our same four stage litigation model. As we described in Chapter 4, our first stage is
“Commencing the Court Process & Notifying the Parties Involved”. When a party makes an application, they are asking the court to adjudicate a matter that could affect the rights of another person. Because another person’s rights could be affected by the court’s decision, the general rule is: anybody whose rights could be affected must be given the right to participate in the application. The parties or persons whose rights are affected should have a right to argue their sides before the court makes a ruling. However, with interlocutory applications, there are exceptions. Overall there are three situations with interlocutory applications: a) where notice should be given to the other side.
b) where notice cannot be given to the other side.
c) where notice should not be given to the other side.
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9.1
Examples of where notice should be given are matters like the amount of interim child support, the setting of parenting responsibilities, or the determining interim parenting time and decision-making authority. All parties should be notified and heard so that all of the available evidence can be heard and a decision concluded. In our adversarial system, if a decision is made without the knowledge of one of the affected parties, then they have the right to have that decision reopened and to have their evidence heard on the matter, if they ask soon enough after they learn of the decision. In addition, they are often more angry now in the litigation, because of the
“unfairness” of not being notified. So applications made without notice, do not allow the application to be fully concluded. It is usually subject to an acrimonious, re-opening.
So when is an application one that can’t or shouldn’t be done with notice? Generally, there are two reasons for applications without notice. The first is that the other party is trying to avoid participating, or that the claimant cannot locate the respondent. For example, after filing the Notice of Family Claim, the claimant must personally serve the respondent. However, if the respondent is avoiding service, or cannot be located, the claimant can’t serve the respondent.
The remedy is for the claimant to apply to the court for permission for an alternate form of service. Instead of personal service which requires the Notice of Family Claim to be handed to the respondent, the court can order that service could be completed by nailing the document to the respondent’s door, or leaving it with an adult at the respondent’s home, or by posting it in a database, like Facebook. Because the claimant could not serve the respondent with the Notice of Family Claim, it would not make sense to require the claimant to give notice to the respondent that the claimant was applying for substitutional service.
The second reason for an application without notice is that there is an appropriate and usually urgent, need for a court order. This could be a situation involving the safety or well-being of a child. Or it could be an application to prevent the other person from doing something that is contrary to the intent of the proceedings. For example, parenting responsibilities may be dealt with using an urgent application if there is an immediate need to determine who should care for a child. Perhaps one parent is abusive to the child or might be contemplating leaving the jurisdiction with the child.
Another example of such an application could be where one of the parties is selling a family asset and there is a risk the proceeds will not be available at the outcome of the proceeding to be divided. An order could be obtained to prevent the sale, or to seize the proceeds.
In these situations, giving the other party notice of the application would only serve to warn them, so notice shouldn’t be given in these cases. A parent planning to leave the jurisdiction with a child would do so quicker. A person planning to sell an asset would now know to hide it, or to sell it faster.
In all applications, especially where matters are contentious matters and where multiple applications are occurring, a judge or master can choose to become “seized” of the matter for all future applications. Becoming “seized” means that all future applications must be heard in front of that judge/master. This saves time in the future because the judge/master is already familiar with the facts of the case. Further, because the same judge/master will preside over future applications, there is no incentive to bring on applications trying to change a previous order on the grounds that the “circumstances have changed” unless they have truly and significantly done so. There is also greater incentive to comply with an order because that judge/master, following the progress of the case, will be much more aware of a party who is trying to delay the proceedings, is uncooperative, or is attempting to inflate the cost and hardship on the other spouse.
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Interlocutory applications are not final orders. They are interim orders meant to advance the proceedings or to temporarily deal with an issue that cannot wait until a final order can be given.
The effect of any order can be quite significant. For example, parenting time and decision-making responsibility will determine the care of the children until the final order. For parents who love their children, parenting time and decision-making responsibility is an extremely emotional issue.
An interim decision might also affect the final order. When determining parenting time and decision-making responsibility at a final hearing, the court looks at the best interests of the children. Stability in the children’s lives is one of the factors the court will consider. If one parent has been given parenting time and decision-making responsibility of the children by an interim order, and a long period of time has passed, the children would have adjusted to that living situation. A final order changing parenting time and decision-making responsibility would impact the children’s lives. The court would still do it if it was in the best interests of the children, but the parent with the interim parenting time and decision-making responsibility would have a slight benefit.
Because of the significant impact an interlocutory order could have on the lives of the people involved, these orders are not taken lightly by the courts.
All court orders are binding and effective until changed or rescinded. With an order where all parties have had a chance to be involved in the process, the general rule is that the order should only be reconsidered if substantive facts have changed since the granting of the order.
This is to prevent a party from bringing multiple applications asking for the same remedy.
Orders can also be appealed if a party thinks the court misapplied the law when coming to a decision.
We will now look at these interlocutory application situations in detail.
Notice should be
Notice can’t be
Notice shouldn’t be
given
given
given
Rule number
Rule 10-6
Rule 10-8
Rule 10-6 and 10-9
Rule is short
“Usual Application
“Applications of
titled
Procedure”
which notice is not
“Urgent Applications”
required’
F31 Notice of
Application for the “main
Forms used
F31 Notice of
application”
Application
F29 Requisition
and the F17 Requisition
for the “short leave”
application.
Form of order
F 51
F 34
F 51
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9.3
Interlocutory applications are usually smaller litigation proceedings within a larger proceeding.
These applications are made to resolve disputes over procedural matters or substantive issues that arise during the larger proceeding.
For example, a procedural dispute might involve one party claiming privilege over a document that the other side believes is not protected by privilege and should be disclosed. Since the parties cannot agree, the court’s help is required. A judge or master decides who is correct and the case continues.
A substantive matter might be a dispute over interim parenting responsibilities and decision-making authority. A divorce proceeding might require months before the trial takes place.
Parenting time must be settled so the parents know with whom the children should reside until the trial determines permanent parenting time. Given the nature of the issue, both parents have an emotional stake in the parenting time issue even if it is for a short period of time. Substantive matters are serious and important to the parties involved and may be as vigorously litigated through an application as the final decision is litigated at trial.
Most applications can only be held after a judicial case conference has been held. The interlocutory process follows the litigation model.
STAGE ONE – Commencement and Notification
STAGE TWO – Definition
STAGE THREE – Disclosure
Because of the speed with which the applications must be dealt with, the first three stages of the litigation model are combined.
An application is commenced with a Form F31 Notice of Application. An example F31 is provided on the next three pages.
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9.4
The Notice of Application is an
XML enhanced document
Indicate which party is making the
application (the “Filing Party”) and which
party is affected by the application (the
“Affected Party”)
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9.5
Enter the orders, factual basis and legal
basis (next page) as provided by the
lawyer.
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9.7
Family Law Chapter 9
9.8
Family Law Chapter 9
9.9
The Notice of Application includes the following: 1. Time and date of hearing
2. The orders sought
3. Factual basis for the application
4. Legal basis for the application
5. List of documents or affidavits that will be relied on 6. Financial Statements, if applicable to application
7. Estimate of time for the hearing
8. Certificates of the Party and Legal Adviser
Rule 10-6(6)(a) and (b) of the Family Rules states the service requirements: Service of application materials
(6) The applicant must serve the following, in accordance with subrule (7), on each of the parties and on every other person who may be affected by the orders sought: (a)
a copy of the filed notice of application;
(b)
a copy of the filed version of each of the affidavits and documents, referred to in the notice of application under subrule (3)(d), that has not already been served on that person;
The Notice of Application is filed by the applicant to commence the application. It is served on the application respondent to give notice of the application and contains enough information to define the issues being dealt with. At the same time as the Notice of Application is served on the application respondent, all of the affidavits and documents that will be relied on are immediately disclosed to the other side by serving them along with the Notice of Application.
Rule 10-6(7) of the Family Rules states that the Notice of Application, affidavits and documents must be served at least 8 business days before the hearing date.
If there are any other parties who the order affects, they must also receive a copy of the material. For example, if the application includes an order requiring the respondent’s mother to turn over a car she has been hiding for the respondent, the mother would also receive a copy of the Notice of Application and supporting material.
If the application respondent responds to the Notice of Application by filing a Form F32
Application Response within 5 business days of being served the Notice of Application. The Application Response notifies the court the application respondent wants to participate in the application, and defines the application respondent’s position on the issues at hand.
The Application Response includes the following:
1. Orders the applicant respondent consents to, opposes and on which no position is taken 2. Factual basis for the opposing the application
3. Legal basis for opposing the application
4. List of documents or affidavits that will be relied on 5. Estimate of time for the hearing
An example of the Application Response is shown on the following page: Family Law Chapter 9
9.10
Family Law Chapter 9
9.11
Family Law Chapter 9
9.12
Family Law Chapter 9
9.13
If the applicant wants to respond to the application respondent’s materials, the applicant must file and serve two copies of their responding materials by no later than 4:00 p.m. on the business day that is one full business day before the hearing.
STAGE FOUR – Hearing
Pursuant to Rule 10-6(14), the applicant is required to prepare and file an Application Record.
The rule states:
Application record
(14) Subject to subrule (16), the applicant must provide to the registry where the hearing is to take place, no later than 4 p.m. on the business day that is one full business day before the date set for the hearing, an application record as follows: (a)
the application record must be in a ring binder or in some other form of secure binding;
(b)
the application record must contain, in consecutively numbered pages, or separated by tabs, the following documents in the following order: (i)
a title page bearing the style of proceeding and the names of the lawyers, if any, for the applicant and the application respondents; (ii)
an index;
Organizes all the
(iii)
a copy of the filed notice of application;
material filed for
(iv)
a copy of each filed application response;
the application.
(v)
a copy of every filed affidavit and pleading, and of every other document other than a written argument, that is to be relied on at the hearing;
(vi)
if the application is brought under Rule 11-3, a copy of each filed pleading;
(c)
the application record may contain
(i)
a draft of the proposed order,
(ii)
a written argument,
(iii)
a list of authorities and
(iv)
a draft bill of costs;
(d)
the application record must not contain
(i)
affidavits of service,
(ii)
copies of authorities, including case law, legislation, legal articles or excerpts from textbooks, or
(iii)
any other documents unless they are included with the consent of all the parties.
The final three pages are:
Basically, the Application Record serves the same
1) The jurat
purpose for interlocutory applications that the Trial
2) The Party’s Certificate
Record served for trials. It organizes all the useful
3) The Legal Adviser’s Certificate
documents into one book. The applicant is required to
make the Application Record which is why the
application respondent was required to serve two copies of the Application Response and supporting documents. One copy is for the applicant and the second copy is for the Application Record.
Family Law Chapter 9
9.14
The Application Record must be filed no later than 4:00 p.m. of the business day that is one full business day before the hearing.
The applicant must serve the application respondent a copy of the Application Record index no later than 4 p.m. on the business day that is one full business day before the date of the hearing. Providing the index allows the application respondent the opportunity to make their own copy of the Application Record.
When the hearing is over, the successful party will draft up the Form F51 Order After Application. This for is very similar to the F52 Final Order that we looked at in the chapter concerning the defended divorce so the whole of the form will not be reproduced. However, crucially, the first part of the order must indicate whether the application came on without notice and the two variations, in that part of the form, are set out below: If the hearing was without notice then that is
Fill in the descriptive preamble paragraph to the
indicated here. By reading this a judge will not
order with information on the parties who
whether an order was granted without hearing from
attended the hearing.
all of the parties.
The party who is successful on the application usually is entitled to costs for the application. If the party is successful on the whole proceeding, the costs of the application are added to the costs the party is entitled to for the whole proceeding.
If a party is awarded costs on an application but unsuccessful with the proceeding as a whole, the costs for the application is deducted from the costs the other party is entitled to receive.
Family Law Chapter 9
9.15
The awarding of costs to the successful party serves as a deterrent against parties being unreasonably uncooperative in the proceeding and forcing the other party to have to make applications.
If a party is awarded costs for an interlocutory application, claim either Item 4 or 6 on the Bill of Costs. A “contested” application is one where the other party showed up to oppose the application. If the other party did not appear, was not given notice, or took “no position” on the application then the application was “uncontested”.
Family Law Chapter 9
9.16
Applicant files Notice of Application and
copies of any affidavits or documents not
already filed.
SERVE the Notice of Application and
copies of any affidavits or documents not
AT LEAST 8 BUSINESS
already served on the application
DAYS BEFORE HEARING
respondent.
Application re
respondent f files A
2ppl
co ic
p a
ie ti
s o
e n
ach
Res
o po
f then s
A e
p a
plnid c
catiopies
n R o
es f a
po ny
ns a
e fafinda
d v
a its
n o
y r
WITHIN 5 BUSINESS DAYS
AFTER BEING SERVED
do
af c
fi um
davents
its n no
ot t alr
alre ea
ad dy
y f fi
ilele
d.d.
Applicant SERVES responding affidavits
on the application respondent if there are
NO LATER THAN 4 P.M.
any.
ON THE BUSINESS DAY
THAT IS ONE FULL
Applicant files the Application Record.
BUSINESS DAY BEFORE
THE HEARING
Applicant SERVES copy of the Application
Record Index on the application
respondent.
SUMMARY TRIAL
A summary trial is a special kind of application where the applicant is asking for a final order on the issues involved in the divorce instead of an application order on interim issues or procedural matters. A summary trial is applied for when the applicant believes the divorce issues can be decided simply on affidavits, expert reports and admissions because the facts are clear cut. As with all interlocutory applications, no live witnesses being heard. For example, on the issue of spousal support, the parties may agree on the income and life circumstances of both spouses.
They need a judge to apply the legal principles just to determine the amount because they cannot agree.
Alternately, a party may apply for a summary trial because there is clear indisputable evidence of the facts needed to decide an issue. For example, the issue may be the grounds for divorce.
The claimant may be claiming a divorce on the grounds of adultery. At the examination for Family Law Chapter 9
9.17
discovery, the respondent admitted to having an affair. Since the respondent was under oath at the examination, the transcript of his admission is clear evidence that those grounds existed.
The same method used for an interlocutory application is used for a summary trial application.
Rule 11-3 is the Family Rule for Summary Trials. The time limits and procedures are the same.
The rule 10 sections we just looked at apply. For example, the application for a Summary Trial is commenced by the applicant with a Form F31 Notice of Application. The application must be heard “at least 42 days” before the scheduled trial date.
Any documents (including expert reports) or affidavits that will be relied on must be filed and served on the application respondent if they have not already been filed and served. If the applicant intends to use interrogatories, examinations, or admissions obtained during the disclosure stage of the proceeding, the applicant must give notice to the application respondent that they are doing so. No specific form of notice for how the notice is to be given, is set out in the rules.
If the judge hearing the summary trial application does not feel a decision can be made without a trial, the proceeding will continue to trial. In other words, in a summary trial application the judge also has the option to not decide the case if “…the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or if the court is of the opinion that it would be unjust to decide the issues on the application…” For example, this can happen if there is conflicting affidavit evidence and the judge is unable to decide which facts are correct, without see the witnesses testify in person.
However, if the judge chooses to decide, then the Summary Trial and the whole case will conclude with a Final Order (F52) and Bill of Costs (F71) just like the end result of a trial.
APPLICATIONS OF WHICH NOTICE IS NOT REQUIRED
We saw at the beginning of this chapter that there are situations where notice of the application cannot or should not be given to the other parties who may be affected by it. It is important to remember that judges always prefer orders where all parties have had a chance to present their sides. The concern is fairness when making orders where an affected party did not have a chance to present their side. Orders without notice (traditionally called ex parte orders) are made because of the immediate need for a decision of the court. The order must be given to the affected other parties after it has been made. If they act promptly upon learning of the order, the other party then has a right to ask the court to reconsider their decision. The court is more likely to reopen and reconsider ex parte orders.
We will now look in detail at an application where notice can’t be given and is therefore an
“application of which notice is not required”. The typical example of this is the order for substituted service of the Notice of Family Claim. The claimant has been unable to find the respondent to serve the Notice of Family Claim either because they don’t know where to find them or because the respondent is intentionally avoiding service. In this circumstance, it makes no sense to require service of the application on the respondent.
Family Law Chapter 9
9.18
To obtain an order for substitutional service, the Rule 10 – 8(1) of the Family Rules states: Application of which notice is not required
(1) An application of which notice is not required may be made by filing (a) a requisition in Form F29,
(b) a draft of the proposed order in Form F34, and
(c) …affidavit or other evidence in support of the application.
The claimant, because he or she is making the application, is referred to as the applicant. The draft order in F34 is similar to the F51 and F52 orders we have looked at in earlier chapters and so one will not be reproduced here.
The F29 is particular form of Requisition. It is also used where all orders are by consent. The
“evidence in support of the application” refers to affidavits. Since most law firms use professional process servers to attempt service of the Notice of Family Claim, the process server should provide an affidavit detailing his or her searches and attempts to serve the respondent. The claimant may also provide an affidavit providing evidence supporting the method of substitutional service being requested. The method should indicate a reasonable possibility that the respondent may become aware of the proceeding.
If the party is successful on the whole proceeding, the costs of the application are added to the costs the party is entitled to for the whole proceeding. If a party is awarded costs on an application, but unsuccessful with the proceeding as a whole, the costs for the application is deducted from the costs the other party is entitled to receive.
The F29 Requisition for a Consent Order or Order Without Notice is shown on the next page.
Family Law Chapter 9
9.19
This Requisition is used for both consent
orders and orders without notice so you
must indicate which one you are seeking.
Also indicate the rule you are relying on.
Substitutional service is Rule 10-8(1).
This is not by consent so at least one affidavit must be filed.
Indicate if any of the parties is
under a legal disability.
The lawyer’s signature goes on the next page.
Family Law Chapter 9
9.20
The third kind of application we are looking at is one where notice should not be given to the other affected parties. Typical examples are where property is being improperly disposed of or a child is being taken by a parent out to the jurisdiction. Requiring notice would only alert the wrongdoer and allow them to act before the application is heard. As these examples show, there is almost always urgency to have the application heard and an order made. Rule 10 – 9(6) of the Family Rules states the “. . . court may make an order without notice in the case of urgency.”
As we have seen interlocutory applications fit into the litigation model. However, for applications without notice, the model changes slightly. Those elements of the model that relate to the other party are not necessary.
STAGE ONE – Commencement and Notification
STAGE TWO – Definition
For interlocutory applications, the first two stages are combined. The obvious change is to the first stage. The application must be commenced, but there is no need for notification to another party. Only the court needs to be notified.
To obtain a hearing, the Rule 10 – 6(2) of the Family Rules states: Notice of application
(2) A party wishing to apply under this rule must file
(a) a notice of application, and
(b) the original of every affidavit, and of every other document, that (i) is to be referred to by the applicant at the hearing, and (ii) has not already been filed in the family law case.
The “notice of application” is the same Form F31 Notice of Application. Form F31 commences the application and defines the issues the applicant wishes addressed. The definition stage is combined with the first stage. Form F31 defines the application by containing a summary of the order or orders being sought. We looked at a F31 Notice of Application earlier in the chapter under the heading usual application procedures.
Because the application requires the court to make a decision, and all decisions must be supported by evidence, all necessary affidavits must be filed with the Notice of Application.
STAGE THREE – Disclosure
There is no disclosure stage in an application without notice. Disclosure is the stage where the other party is made aware of all the evidence the other side has. Since an application without notice has no other party, there is no disclosure.
STAGE FOUR – Hearing
The party seeking the application will go to court and speak at a hearing. The hearing date is scheduled through the registrar. If the application is granted, an order must be drawn up and Family Law Chapter 9
9.21
filed. The general rule is if the successful party is represented by a lawyer, that lawyer must draw up the order.
Order Made After Application Hearing
Once the application has been heard, the legal administrative assistant will create the order based on information provided by the lawyer who attended the hearing. Even though the application was unopposed because the other party was not aware of it, the court does not have to grant the order exactly as requested.
The purpose of the hearing is for a judge or master to consider the appropriateness of the application request. The court has the discretion to order whatever it believes is appropriate.
The court order used to record any order made during an interlocutory application hearing is the Form F51 Order Made After Application. This document is designed to be used for both applications made with or without notice and we looked at the changes necessary to it where it is made without notice, earlier in the chapter.
Family Rule 10 – 9(7) requires a copy of the order and copies of all the application documents that were filed to be served on the affected party promptly after the order has been granted.
Family Rule 10 – 9(8) specifically allows the court to set aside or change the order if the affected party wants to make an application. The party who had the order made against them without notice should have the right to have the matter reheard so they could present their side.
The application was initially allowed because it was urgent. The purpose was to deal with the matter immediately, not to allow the applicant to circumvent the other party’s right to be heard.
However, the other party can choose not to have the matter reheard and just live with the order.
Costs of urgent applications are uncontested applications and are usually dealt with in the Bill of Costs F71 in the same way under item 6 as we have seen in the other examples of other applications. However, the court has discretion on whether or not costs are appropriate given that the application was made without notice. It could be unfair to award costs because the other party was not given any opportunity to argue the application. Because the other party has the right to have the issue reheard, the court could chose not award costs for the application made without notice. Instead, if the other party would like a new hearing to have the matter reheard, the issue of costs could be addressed then.
Short Leave Applications
One further matter needs to be addressed in urgent applications. We have seen that urgent applications use the same rule as “usual applications”, but most of the time frames are inapplicable because no notice is being given. However, what if the matter is so urgent that there is not even time to wait until 9:45 a.m. on a chambers hearing day? A further application needs to be made to ask the court to waive or shorten any other timelines. It is called a “short leave application” and is a separate application on top of what you are asking for (the “main application”).
Family Law Chapter 9
9.22
Short notice
(1) …in case of urgency, a person wishing to bring an application (in this subrule and in subrules (2) to (5) called the “main application”) on less notice than would normally be required may make an application (in this subrule and in subrules (2) to (4) called the “short notice application”) for an order that the main application may be brought on short notice.
(2) A short notice application may be made by requisition in Form F17, without notice, and in a summary way.
None of the time limits or notice restrictions in the rules apply to a short leave application. It can be used in “usual applications” as well if there is urgency. The court on granting a short leave application can hear the main application immediately or simply shorten the time frames that usually apply to address the urgent circumstances.
Both the Provincial and Supreme Court have judges available 24 hours a day, 7 days per week available to hear urgent applications. Special phone contact numbers are provided and supports are available to open courtrooms at any time or simply handle it by phone and fax machine.
If we look at the case of a child in danger of being imminently being taken out of the jurisdiction, you would prepare an F31 Notice of Application and any supporting affidavits. You would also prepare a draft order F51 and a F17 short leave requisition asking for the main application to be heard immediately. You would call the contact numbers. Your lawyer would provide these materials to the judge, without even filing or serving them. If successful, the judge would sign and enter the order immediately and you can be off to the airport with the court order in hand.
Family Law Chapter 9
9.23
Use these questions to check your understanding of Chapter 9. The answers can be found in the data file named Ch9ReviewKey.docx in a folder named AssignKeys.
1. What is a Form F32 and what is its purpose?
2. What is the purpose of an Application Record?
3. What documents MUST the Application Record contain?
4. What documents MIGHT the Application Record contain?
5. What documents must the Application Record NOT contain?
6. Who drafts the order after the hearing for an application?
7. Who is usually awarded costs for an application?
8. What is a summary trial?
9. In what two circumstances is it appropriate to apply for a summary trial?
10. What is an interlocutory application and what three matters may an interlocutory application deal with?
11. Why is the court’s general rule that the applicant respondent must receive the claimant’s notice of application?
12. What are two reasons the court might allow an application without notice?
13. Why do the courts take interim orders seriously? Illustrate your answer with an example.
14. What is an ex parte order?
15. List two methods for obtaining orders with applications without notice.
16. What three documents must be filed to obtain an order for substitutional service?
17. What evidence would be needed for the court to award an order for substitutional service?
18. If the application is accepted by the court, who draws up the Order and on what form is it made?
PE9.1 Application without Notice (for substitutional service)
Mr. Simpson wants to divorce his wife of 20 years. She developed the habit of chewing ice at the dinner table, and despite many arguments about it, refused to stop. The noise from the chewing interfered with Mr. Simpson’s happiness to such an extent that he moved out of the Family Law—Chapter 9
9.24
matrimonial home February 25, 2028, and is now trying to commence a divorce action with a Notice of Family Claim. However, Ms. Simpson does not want to get a divorce, and is avoiding the process server.
Mr. Simpson has asked Ms. Amherst to apply for an order for substitutional service.
You prepare a Form F29 using the facts below.
Claimant: Albert John Simpson
Respondent: Mary Jane Simpson
Case No.:
Your Student Number
Registry:
Vanderhoof
Rule relied on: Rule 10 – 8(1)
Evidence:
Affidavit of Andrew William Windsor, sworn May 29, 2029
No party is under a legal disability
Ms. Amherst will sign the document on May 29, 2029. Remember to key your name behind Gail B. Amherst on the last line of the document.
Family Law—Chapter 9
9.25
Page
GENERAL INSTRUCTIONS FOR EXERCISES AND ASSIGNMENTS
1
FILE OPENING PROCEDURES
2
USING WORD MICROSOFT WORD
6
How to Control Spacing in a Document
6
How to Add Page Numbers
6
How to Remove a Page Number from Page 1
6
How to Create a Z-Line
7
How to Create a Backing Sheet in Landscape Orientation
8
Sample Backing Sheet for A Legal Instrument
10
Sample Backing Sheet for A Court Document
11
How to Define New Multi-level Lists
12
USING SUPREME COURT PDF AND XML-TAGGED FORMS
13
SERVING SUPREME COURT DOCUMENTS
15
TIME CALCULATIONS
16
CONCEPT MAP—DIVORCE
19
Family Law Appendix One
i
GENERAL INSTRUCTIONS FOR EXERCISES AND ASSIGNMENTS
For all exercises and simulations, assume the role of the legal administrative assistant for the following fictitious law firm where you work for Gail Amherst, a partner of the firm: AMHERST BROWN & COMPANY
Barristers and Solicitors
5432 West Pender Street
Vancouver, BC V3L 5B2
Telephone: 604-555-0150 Fax: 604-555-0151
For exercises and graded assignments, unless otherwise stated in the assignment assume that the lawyer of the opposing spouse is:
JAKE SCHULTZ, BARRISTER AND SOLICITOR
Suite 300 – 3890 West Hastings Street
Vancouver, BC V7E 4R5
Telephone: 604-668-7227 Fax: 604-668-7200
For all exercises and graded assignments completed using a word processor: 1. Save the file as directed in the assignment with your last name in the file name.
2. Use Arial, 11 pt font unless otherwise instructed. Assignments will not be graded otherwise.
3. Insert a footer including the number of the assignment and your name at the left margin.
Change the font to Arial, 10 pt. (GA2.1NAME)
When completing documents do not insert dummy signatures. You are preparing documents as you would at work, up to the point where others will sign them. You may, however, be asked to execute documents as part of group work in class as part of your assignment.
Family Law Appendix One
1
Review File Assembly
Court
Correspondence/
Documents
Other Documents
L
A
File Opening
B
Card
E
glued to
L
bottom of this
side
Procedure
Amherst Brown & Company has a formula for creating file numbers. The first part of the number is made up of the attending lawyer’s initials; the second part is a sequential number found in the accession book, and the third part is made up of the last two digits of the year the file was opened. For example, a file for Brian L. Amherst could have the number BLA-328-08.
You work mainly for Gail B. Amherst; however, there may be times when you are asked to help out Brian’s legal administrative assistant.
How to Prepare a File Label
The format for the information in the sample labels on the next page is the format you will use for this course. You will always key the label including the file number.
Follow the instructions below for creating the labels for these files.
1. Select the Mailings Tab.
2. At the Create group, select Labels.
3. With the Labels tab selected, click on Options.
4. In the box beside Label Vendors, be sure that AVERY US Letter is selected.
5. Using the scroll bar under the heading Product Number, select 5066.
6. Click OK.
7. When the Labels and Envelopes dialog box appears, select New Document.
8. Save the document in a folder named Ch1Simulation with the file name:
ClientNameFileLabel.
Family Law Appendix One
2
9. Change the font to Courier New, 11 pt., bold.
10. Key the file information as follows. Note: LAW stands for the Lawyer’s initials. xxx is the file number found in the accession book, followed by the last two digits of the current year.
LAST NAME, First Name
Re: (Matter)
LAW-xxx-00
A label (or two) must be affixed to a file to quickly identify it. Check with your lawyer as to whether there is a certain colour you should use for the label.
Coloured strip (if any)
MERRIWEATHER, Patricia
Re: Separation Agreement
File No. LAW-489-20
If the label is prepared before obtaining the file number, you must then later write in pen the file number on the label and/or on a place at the top outside right-hand corner of the file folder.
ROSTMAN, Joanne Bridget
Re: Divorce
File No. BLA-328-19
How to Prepare a File Opening Card
On the next page is an example of a file opening card. Create a template for this card using a table. Then using the information you were given on the client interview record sheet, create an opening card for the file. Key in the client information. Print each opening card, cut around the outside border and glue to the bottom left side of the appropriate folder.
Family Law Appendix One
3
FILE OPENING CARD
DATE
FILE NO.
MATTER
CLIENT
ADDRESS
TEL:
TEL:
LAWYER
BACK-UP LAWYER
(Res.)
(Bus.)
OTHER INFORMATION
DISPOSITION: Before termination of the interview with the client ASCERTAIN WHETHER THE
CLIENT WISHES YOU TO ACT FOR HIM/HER.
IF NO:
1.
Does the client understand you will not be taking further action? ______________
2.
Did you advise client to obtain other legal advice? Yes No N/A 3.
To avoid misunderstanding, is confirmatory letter required? ________________
4.
Close file.
ADMINISTRATION
FOLLOW-UP INFORMATION
IF YES: ()
Client index prepared
LIMITATION DATES
Client index checked for conflict
Client advised of conflict
MATTER
DATE
Retainer/engagement letter sent
Fee arrangement confirmed
Client instructions complete? If no record
follow-up date in reminder system
Brought Fwd/Follow-up dates entered
Follow-up dates created
Accounting records entered
BROUGHT FORWARD FOLLOW-UP DATES
Other staff instructions:
____________________________________
____________________________________
____________________________________
THIS BOX MUST ALWAYS BE COMPLETED EITHER
WITH A DATE OR N/A AND LAWYER’S INITIALS.
How to prepare a file index card and a cross reference card
Some firms will use a easy-to-maintain Rolodex card system to keep track of clients they represent and their opposing parties. This can be a quick and easy way to check for conflicts.
Many firms now will use only a computerized system.
Family Law Appendix One
4
Amherst Brown & Company uses both. When a file is opened, 3 x 5 index cards are prepared for the client and for the opposing party.
Using the information on the client interview sheet, prepare 2 index cards—one for each client, and one for each opposing party. When you have created the index cards, paper clip them to the inside of the appropriate folder.
Follow the instructions below for creating these cards:
1. Select the Mailings tab.
2. At the Create group, select Labels.
3. With the Labels tab selected, click on Options.
4. In the box beside Label Vendors, be sure that AVERY US Letter is selected.
5. Using the scroll bar under the heading Product Number, select Index Cards, 5388
6. Click OK.
7. When the Labels and Envelopes dialog box appears, select New Document.
8. Save the document with the name ClientNameIndexCard.
9. Change the font to Courier, 11 pt.
10. Key the file information from the client interview sheet in the format shown in the example below.
CLIENT LAST NAME, CLIENT FIRST NAME
OPPOSITION LAST NAME, OPPOSITION FIRST NAME
File No.
Client mailing address
See: (Client Name)
City, postal code
(Client File Number)
Telephone number
Fax number
Re: CLIENT MATTER
Date Opened: (date)
How to Add Two-Prong Fasteners to the Front and Back of Each Folder Ensure that the edges fastened documents are not folded over when the file is closed shut.
Remember to cover the back of the fastener with tape to strengthen it and to keep it from catching on other folders.
How to File the Appropriate Documents in a File Folder
Court Documents on the left side Correspondence/Other Documents on the right side Family Law Appendix One
5
How to Control Spacing in a Document
Firstly, when you open a new document, you must format the paragraphs in the document with 0 pts before and after and single spacing. Word 2007 automatically adds 10 pts after each paragraph and 1.15 lines between lines. You must change that.
1. Open new Word document.
2. Save As (file name).
3. On the Home tab at the Styles group, right-click on Normal.
4. Change the font to Arial, 11 pt (for Family Law assignments).
5. Click on the Format button at the bottom left of the dialogue box. Choose Paragraph.
6. Change the Spacing to: Before 0 pts; After 0 pts; Line Spacing: single or 1.5 as required.
7. Click OK.
You should now have control over the spacing in the document.
How to Add Page Numbers
Add page numbers in a header that is 1” from the top edge of the paper: 1. Click on the Insert tab.
2. At the Header & Footer group, click on the Header button.
3. From the drop-down menu choose Edit Header.
4. In the Options group, place a check mark in Different First Page.
5. On the Design tab, at the position group change Header from Top to 1”.
6. At the Header & Footer group, click on the down facing error on the Page Number button.
7. At the drop down menu, choose Top of Page then Plain Number 2 (centered).
8. Press Enter once to leave a blank line between the page number and the first line of the body of the Agreement.
How to Remove the Page Number from Page 1
If you have created a document with page numbers in a header, and the page number appears on page 1, follow these instructions to remove it.
1. Click into the header on page 2.
2. If necessary, click on the Header & Footer Tools Tab.
3. At the Options group, place a check mark next to Different First Page.
The page number on page 1 should disappear.
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• At least two lines of the last numbered paragraph must be on last page.
• If the second to last (penultimate) page ends higher than 8 lines from the bottom, draw a Z using the computer.
o last line extends to right margin–Z must be RIGHT UNDER the last line and extend to bottom margin
o last line ends before right margin–begin Z right after last word Here are the steps:
1. Go to Insert.
2. On the Illustrations group, choose shapes.
3. In the Lines sections, click on the first choice in the row, Line.
4. You will draw the Z using three lines.
a. When the cursor changes to a crosshair, place it where you want the Z to begin. Pull the line to the left margin, and let go of the mouse button. To keep it exactly horizontal you can hold down the shift key.
b. Go to Insert, choose Line, place the cursor at the right end of the first line, and pull the line down to the left bottom margin. Let go of the mouse button.
c. Go to Insert, choose Line, place the cursor at the end of the second line, and pull the line to the right margin. Let go of the mouse button. Click outside the line to de-select it.
14.
It is understood and agreed that should the marriage between the
parties hereto be dissolved, upon the trial of any divorce action,
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How to Create a Backing Sheet in Landscape Orientation
The backing sheet MUST be part of the document; that is, it cannot be saved in a separate file.
If the assignment calls for a backing sheet, it will be graded ONLY if it is submitted as the final page of the document.
Types of Backing Sheets
The backing sheet for a legal instrument (Agreements, Wills, etc) are different than the backing sheet for a court document.
Backer for a Legal Instrument: begins with a date line. Uses the same wording for the parties as in the exordium of the document
Backer for a Court Document: begins with the Style of Proceeding: Court No. and the Court Registry, followed by the name of the court. Uses
the same wording for the parties as in the document.
Orientation and layout of backing sheets
Most backing sheets for the documents in this course will be in landscape orientation. However, read the assignment carefully to determine whether to use landscape or portrait orientation.
ALL of the backing sheets for the documents in exercises and graded assignments will be vertically centered.
Steps in creating a backing sheet
1. Insert A Section Break.
After the last line on the last page of the document, insert a SECTION break.
a. On the Page Layout tab, click on Breaks.
b. In the SECOND group titled SECTION BREAKS, choose Next Page. When you turn on the Show/Hide button, you will see “Section Break (Next Page) with a dotted line before and after it. If you see Page Break, you have chosen incorrectly.
2. Change The Orientation
a. If the backing sheet is to be in landscape orientation, on the Page Layout tab, click on Orientation and at the drop down menu, choose Landscape.
3. Set The Left And Right Margins For 3.25” (8.25cm).
4. Center The Page Vertically.
a. On the Page Layout tab, click on the launcher button in the bottom corner of the Page Setup group.
b. At the Page Setup dialog box, with the Layout tab selected, under the title Page change the Vertical alignment to Center and press OK .
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5. Set the paragraphs for single spacing, no points before or after.
6. Key the content for contracts, wills and other legal instruments.
a. If the date is keyed on the contract, key it on the backing sheet. If the date is to be written in on the contract, it will be also written in on the backing sheet.
b. The top part of the backing sheet should match the heading of the document. Use the following precedent as your guide.
c. The backing sheet ALWAYS contains the contact information for the law firm. This information is the purpose of the backing sheet.
7. Staple the backing sheet to the back of the document facing out.
How to Remove a Page Number from the Backing Sheet
1. On the Home tab, at the Paragraph group, click on the Show/Hide button.
2. Look at the page before the backing sheet to be sure that the break is a SECTION
break. It should say Section Break (Next Page) NOT Page Break. If there is a Page Break, delete it and insert a Section Break (Next Page) instead.
3. Double-click in the Header area to open the Header & Footer Tools.
4. At the Design tab, on the Navigation group, look at the Link to Previous button. If it is highlighted, click on the button to turn off the highlight.
5. Select the page number on the backing sheet and delete it. All other page numbers should remain as they were.
See the following pages for examples of backing sheets, the first is for a legal instrument (a will), and the second is for a court document (a Notice of Family Claim).
How to Remove a Blank page at the End of a Document Sometimes documents are submitted with a blank page after the backing sheet. Marks will be
deducted for blank pages anywhere in a document.
1. On the Home tab, at the Paragraph group, click on the Show/Hide button.
2. There are three things that commonly cause blank pages to appear: a. Extra enters which create extra paragraphs that move to a new page i. Delete the extra paragraphs and the blank page should disappear.
b. Page or Section breaks
i. Delete the page or section break
c. Text too close to the bottom of the page
i. Decrease the distance the Footer is from the bottom edge of the page.
ii. Decrease the width of the bottom margin.
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BETWEEN:
MARY MARTIN
OF THE FIRST PART
AND:
GEORGE JAMES MARTIN
OF THE SECOND PART
MARRIAGE CONTRACT
Backing Sheet Sample:
Legal Instruments
Frederick R. Lawson
wills, contracts, agreements,
LAWSON, ASHLEY & WRIGHT
statutory declarations
Barristers and Solicitors
700 West Georgia Street
Vancouver, BC V7Y 1B8
Telephone: 604-688-3039
Fax: 604-388-3000
FRL:yoi
Our File No. FRL/398/19 (optional line)
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COURT REGISTRY: NEW WESTMINSTER
IN THE SUPREME COURT OF BRITISH COLUMBIA
CLAIMANT:
MARY MARTIN
OF THE FIRST PART
RESPONDENT: GEORGE JAMES MARTIN
OF THE SECOND PART
Backing Sheet Sample:
Court Documents
AFFIDAVIT – DESK ORDER DIVORCE
all documents that begin with
a Style of Proceeding
Frederick R. Lawson
LAWSON, ASHLEY & WRIGHT
Barristers and Solicitors
700 West Georgia Street
Vancouver, BC V7Y 1B8
Telephone: 604-688-3039
Fax: 604-388-3000
FRL:yoi
Our File No. FRL/398/19 (optional line)
Family Law Appendix One
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HOW TO DEFINE A NEW MULTILEVEL LIST (Word 2010) In the style: 1. 1.1 1.1.1
Open a Word Document
1. Right-click on Normal and select Modify.
2. Change the font to Arial 11 pt.
3. Select Forma t and Paragraph.
4. Change Spacing Before to 0 and After to 22.
5. Change Line Spacing to Single.
Choose Number Style
1. Click on the down-facing arrow next to the multi-level list button and choose Define New Multilevel List and then click on the More button in the lower left corner of the dialog box.
Settings for Level 1
o Click Level To Modify, choose level 1
o Number Style for this Level choose Arabic numbers—1. 2. 3.
o Number Alignment: Left
o Aligned at: 0
o Text indent at: 0
o Follow number with Tab Character
o Add tab stop at 1”
Settings for Level 2
o Click Level To Modify, choose level 2
o Number Style for this Level choose Arabic numbers—1. 2. 3.
o Left click to the left of the greyed character just entered in the Enter Formatting for this Level box, and then in the box called Include Level Number From, choose level 1 and then add a period after the character entered.
o Number Alignment: Left
o Aligned at: 0
o Text indent at: 0
o Follow number with Tab Character
o Add tab stop at 1”
Settings for Level 3
o Repeat the steps at “Settings for Level 2” above, but this time you are going to: o Left click to the left of the greyed character just entered in the Enter Formatting for this Level box, and then in the box called Include Level Number From, choose level 2 and then add a period after the character entered AND then repeat those steps this time choosing level 1.
o Click OK to save those three levels.
o Note that style will be in your library until you close Word.
o Also note that if you open a precedent document, it’s numbering style will appear under Current List after you click the down arrow and you can save it to your library that way.
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SERVING SUPREME COURT DOCUMENTS
Personal Service (Rule 6-3): if the document is to be served on an individual, by having a person who is not a party and who is at least 19 years of age leave the document with the individual to be served
Ordinary Service (Rule 6-2): documents are delivered by postal mail, e-mail, fax, or in person depending on the information given in the address for service
Document
Type of Service
Proof of Service (Rule 6-6)
(Rule 6-3)
Notice of Family Claim (F3)
Personal service
1. Respondent files Response, or
2. Affidavit of Personal Service (F15)
Response to Family Claim (F4)
Ordinary Service
1. Affidavit of Ordinary Service (F16),
or
2. File a Requisition (F17) to which is
attached written acknowledgement
of receipt of the document signed
by the party or the party’s lawyer.
Counterclaim (F5)
Ordinary Service
If a new person is named as
unless a new
respondent:
person is named as
respondent
1. Person served files Response, or
2. Affidavit of Personal Service (F15)
If respondent named in Notice of
Family Claim is served:
1. Affidavit of Ordinary Service (F16),
or
2. File a Requisition (F17) to which is
attached written acknowledgement
of receipt of the document signed
by the party or the party’s lawyer.
Financial Statement (F8)
Ordinary service,
1. Affidavit of Ordinary Service (F16),
but can be served
or
along with the
Notice of Family
2. File a Requisition (F17) to which is
Claim
attached written acknowledgement
of receipt of the document signed
by the party or the party’s lawyer.
Notice of Judicial Case Conference (F19) Ordinary Service As above
Notice of Application (F31)
Ordinary Service
As above
Application Response (F32)
Ordinary Service
As above
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Actual Service
For personal service, the actual serving of the document can be on any day, at any time. The process server could serve a person on a holiday or at 3:00 am in the morning if they wanted.
(They could even serve a person at 3:00 am on a holiday if they want to be really evil.) For ordinary service, the actual serving or transmittal of the document to the other side can be on any day, at any time. However, if the document is over 30 pages AND service is by fax, it must be sent between 5:00 pm and 8:00 am (unless the other party agrees otherwise). This is to prevent tying up another office’s fax machine during business hours.
Once a document has been served, often there is usually a time period for the other party to respond. The deadline for the other party to respond must be calculated.
Calculating Time to Respond
A legal administrative assistant must be careful when calculating limits. Usually, a time period is given in a statute or regulation stating how long a person or individual has to respond to the receipt of a document. Most time limits are given in days.
Note: The rules for calculating time periods are a combination of the Civil Rules and the
Interpretation Act, R.S.B.C. 1996, c. 238. Rather than trying to follow the convoluted rules and statutes, they have been re-interpreted in this text into a three step method for calculating time periods.
Method for Calculating Time Period
There are three steps to calculating the time period. Each step has certain rules that apply to that step.
1. Determining the first day to count.
2. Counting the days in the time period.
3. Determining the last day.
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STEP 1: Determining the first day to count When determining the first day to count, the same rules apply for both days and clear days.
1. Determine the “day of service”.
a. The “day of service” is usually the day the document is served. However, there are two exceptions:
i. if service occurs on Saturday, Sunday or a holiday, the “day of service”
becomes the next day that is not a Saturday, Sunday or a holiday; and ii. if service occurs after 4:00 pm, the “day of service” becomes the next day that is not a Saturday, Sunday or a holiday.
HOLIDAYS FOR SERVICE
Good Friday; Easter Monday; Victoria Day; Dominion Day; British Columbia Day; Labour Day; Thanksgiving Day; Remembrance Day; Christmas Day; Boxing Day; New Year’s Day, and; any day fixed by the Parliament of Canada, legislature, Governor General, or Lieutenant Governor as a (i) public holiday (ii) day of prayer, mourning, or rejoicing (iii) day for celebrating the birth of the reigning Sovereign.
EXAMPLES:
Sunday
Monday
Tuesday
Wednesday Thursday Friday
Saturday
10
11
12
13
14
15
16
Thanksgiving
If service was on Thursday at 1:00 p.m., then Thursday is the day of service because none of the exceptions apply. Service was not on Saturday, Sunday or a holiday, and it was served before 4:00
pm.
If service was on Sunday at 2:00 p.m., then Tuesday is the day of service. Because service was on Sunday and Monday is a holiday, the next day after the holiday is the day of service.
If service was on Wednesday at 9:00 p.m., then Thursday is the day of service. Because service was after 4:00 p.m., the next day is the day of service.
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STEP 2: Counting the days in the time period When counting the days in the time period, the first day is the day after the “day of service”.
However, if the period of time is less than seven days, do not count Sundays and holidays. You can count Saturdays.
EXAMPLES:
Sunday
Monday
Tuesday
Wednesday Thursday Friday
Saturday
3
4
5
6
7
8
9
Sunday
Monday
Tuesday
Wednesday Thursday Friday
Saturday
10
11
12
13
14
15
16
Thanksgiving
If service was on Friday the 8th at 1:00 pm, and the time period was seven days, you would count the 9th, 10th, 11th, 12th, 13th, 14th, and 15th. The 9th is the day after service so it is the first day.
Sunday the 10th and Monday the 11th are counted because the time period is seven days, not less than seven days.
If service was on Friday the 8th at 1:00 p.m., and the time period was two days, you would count the 9th and the 12th. Sunday the 10th and Monday the 11th are not counted because the time period is less than seven days.
STEP 3: Determining the last day
The manner the last day is counted changes depending on the wording of the statute or regulation.
Depending on the wording of the statute, response time is calculated using either days or clear days.
“Days” versus “Clear Days”
A day is counted after it starts. A clear day is only counted once the entire 24 hour period has passed. The practical difference between the two is how the last day is counted.
If time is calculated using days, the last day is included in the time period. If time is calculated using clear days, the last day is not included in the time period.
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DIVORCE
JOINT
UNDEFENDED
DEFENDED
Documents filed by:
Documents filed by:
Documents filed by:
CLAIMANT 1 & CLAIMANT 2
CLAIMANT
CLAIMANT
RESPONDENT
Commencing the Action
Commencing the Action
Commencing the Action
F1-Notice of Joint Family Claim
F3-Notice of Family Claim
F3-Notice of Family Claim
F4-Response to Notice….
F9-Agreement as to Annual Income*
F8-Financial Statement*
F8-Financial Statement
F8-Financial Statement
F5-Counterclaim
Hearing the Action
H earing the Action
F6-Response to Counterclaim
F35-Requisition (for Desk Order)
F35-Requisition (for Desk Order)
Hearing the Action
F52-Final Order
F52-Final Order
F36-Certificate of Pleadings
F17-Requisition (for Search for Response)
F44-Notice of Trial*
F37-Child Support Affidavit**
F36-Certificate of Pleadings
F20-List of Documents
F20 List of Documents
F38-Affidavit-Desk Order Divorce
F15-Affidavit of Personal Service
F21-Appointment to Examine …
F21-Appointment to Examine…
F37-Child Support Affidavit**
F45-Trial Brief
F45-Trial Brief
F38-Affidavit-Desk Order Divorce
F46-Trial Certificate
F46-Trial Certificate
F36-Certificate of Pleadings**
THIS ACTION CAN BE A ONE-STEP
T
HIS ACTION IS A TWO-STEP PROCESS—
Trial Record**
PROCESS—all documents can be filed in
commencing documents filed—WAIT 30+
one visit to the registry.
DAYS—hearing documents are filed
*F9 or F8 are required only if there is a request for an order for support or division of property.
*Either Claimant or Respondent can file the F44.
F9 is attached to the F37 if the F37 is required.
**Party who files F44 also files F36 and Trial Record.
**F37 is required if there are children of the marriage.
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