Bernie Thibault – September 2016
Do You Need An Interim Motion after Separation?…
After a separating from your spouse, you may be wondering whether an immediate court application is necessary to deal with the legal issues arising as a result of the breakdown of your relationship. The answer to this question depends on the urgency of the issue. The issues can vary widely from child custody and access to financial support and property division. The need to deal with an issue now rather than later is not always obvious and you may find yourself in a disadvantaged situation if you don’t act quickly.
If you and your former spouse have children, the urgency of the issue will be more obvious. Perhaps one parent is planning on moving away with the children. Maybe one parent will not let the children spend time with the other or is not living up to a prior but unwritten agreement about with whom the children will live most of the time. There may be other more significant issues which place the children at risk of harm when in the care of the other parent. In these cases, you may need to act right away.
It is important that you address these and other parenting issues with your lawyer quickly. Depending on the situation, your lawyer may suggest filing what is called a Motion for Interim Relief, otherwise known as an Interim Motion. An Interim Motion can expedite the court process, get you before a judge earlier, and put in place what is called an Interim Order, which is essentially a temporary order dealing with the parenting of your children.
Obtaining an Interim Order can be very beneficial. It can do several things like take your children out of a potentially dangerous situation, secure financial support and/or ensure that a parenting regime is put in place which is least disruptive to the children. A separation can be a very distracting and emotional time for a child. As a result, a parenting regime which mimics as much as possible that which existed prior to separation will usually be imposed unless there are significant reasons to do otherwise. This is often referred to as the “status quo”, and this should be explained to you before deciding to file an Interim Motion.
An Interim Motion can assist in final settlement of all legal issues without the need for further litigation. Once an Interim Order is in place, the parties may have an opportunity to calm down, reflect rationally, and work cooperatively towards a final comprehensive separation agreement or final order. If unsuccessful in reaching an agreement, the parenting arrangement reached in the Interim Order can serve as a tactical advantage at a final trial. The children may have become accustomed to the interim parenting arrangement and this arrangement may actually meet the children’s best interests. If this is the case, the chances that the Court would impose an arrangement drastically different from that which was reached in an Interim Order may be quite low.
If you have recently separated and are unsure if your circumstances require immediate legal action, speak to a lawyer at MDW Law sooner rather than later. We will advise you whether an Interim Motion is the appropriate course of action in your particular circumstances.