Manitoba Justice
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Family Justice
Family Law
Family Law in Manitoba - 2008 Edition
Chapter 2
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THE COURT SYSTEM AND PROCEDURES AND ALTERNATE DISPUTE RESOLUTION
- Levels of Court
- A General Description of Family Division Procedures
- Alternate Dispute Resolution
THE COURT SYSTEM AND PROCEDURES AND ALTERNATE DISPUTE RESOLUTION
LEVELS OF COURT
There are three levels of court in Manitoba that deal with family cases: the Provincial Court, the Court of Queen's Bench (Family Division) and the Court of Appeal. For information about Manitoba Courts, go to www.manitobacourts.mb.ca. This site provides a wealth of information about the different levels of court, including where they are located, court rules, forms and fees as well as notices and practice directions to the legal profession and information about new projects that are underway.
The Provincial Court can hear some types of family cases, but only in northern and some rural areas where the Court of Queen's Bench (Family Division) does not have exclusive authority to hear family cases. Only the Court of Queen's Bench (Family Division) can deal with applications for divorce, division of family property and adoption.
The Court of Queen’s Bench (Family Division) is a unified family court that hears all family matters throughout Manitoba. The judges of the Family Division specialize in family law. The Family Division was created so the court could respond more sensitively to the needs of people involved in family disputes. Family Conciliation, a provincial government service staffed by professional counsellors, works with the court to help families resolve custody and access issues.
The Court of Appeal hears appeals from people who are not satisfied with a decision of the Provincial Court or the Court of Queen’s Bench.
From time to time the Supreme Court of Canada will consider appeals from the Manitoba Court of Appeal on family law issues. The person seeking to appeal must first obtain permission (leave) from the Supreme Court of Canada.
A GENERAL DESCRIPTION OF FAMILY DIVISION PROCEDURES
The following description of court procedures in the Court of Queen’s Bench (Family Division) is very general and applies mainly to separations and divorces. Court procedures in other family matters, such as child protection and adoption, are different in some respects, and you should also read Chapters 12 and 13 for more information on how the court system operates in those cases.
People involved in a legal dispute are called the parties. Anyone who wants the assistance of the court must ask for it by applying to court. This is done by filing specific documents in the court office. Once these documents have been filed, the court proceedings have started. The document that begins court proceedings is usually called a petition, an application, or sometimes a statement of claim. The party who files the documents is called the petitioner, the applicant, or sometimes the plaintiff.
Other parties involved in the dispute (such as a spouse or a parent) usually must be notified of the application (served) so that they will also have an opportunity to present their position to the court. This is usually done in a document called an answer. Sometimes, where a party cannot be found to be served, the court will allow the case to proceed anyway. Usually in these cases the court will require some kind of alternative notification, for example a notice in a local newspaper (substitutional service).
If the other party (usually called the respondent) does not file an answer to the application within the time the court allows, the hearing may proceed without the respondent. The applicant may submit documents to the court, for example, financial information. The applicant will testify under oath or affirmation and may call witnesses to testify on his or her behalf. These witnesses may include the respondent, who may be required to attend court by a subpoena. At the conclusion of the hearing, the court will make an order.
Family law cases often take many months and sometimes even years to be completed. Many issues need to be resolved much earlier at an interim hearing, at least on a temporary basis (Ex: parenting arrangements, child support and financial disclosure). For this reason, either party may make a court application (a motion) for a temporary order (interim order) at any time after court proceedings have been started. The applicant must serve the motion documents on the other party unless the applicant can convince the judge that serious harm would result if notice were given to the other side.
The parties give their evidence by means of affidavits. An affidavit is a document in which a person sets out the facts relevant to the motion and swears, or solemnly affirms, the truth of the statements. The affidavits must not contain irrelevant or purely inflammatory statements. If they do, the court may reject them or parts of them and penalize the party who filed them.
A judge reviews the filed documents, and the parties can argue their cases before the judge at an appointed hearing time. The parties usually do not present oral evidence at the interim hearing.
Cross-examinations on Affidavits
Before the hearing of an interim motion, anyone who made an affidavit may be questioned under oath or affirmation by the opposing party or his or her lawyer. This cross-examination takes place outside court, usually in a lawyer's office. A court reporter is present and records all the questions and answers and puts them in a document (transcript), which is given to the judge before the interim hearing.
If at any time in the proceeding, the parties can agree on any issues in their dispute, the court can issue a consent order without the parties having to attend for a court hearing.
Before the final court hearing (trial), there are several court procedures which are intended to ensure that the parties are ready for the trial and to resolve as many issues as possible to shorten the trial or eliminate the need for it altogether.
Most family proceedings in Winnipeg will come under the court's case management program. The purpose of case management is to get cases dealt with as efficiently as possible, to reduce the costs involved and to encourage the parties to find their own mutually acceptable solutions to their family law issues. The parties and their lawyers must attend meetings with a judge (case conferences) to discuss the case. The judge tries to help the parties settle their dispute, or as many issues as possible. If a trial is necessary, the judge will require the parties to exchange information and do whatever else is needed to prepare the case for trial.
In all cases that do not come under the case management program, the parties and their lawyers must attend at least one meeting with a judge before a trial takes place. This pre-trial conference is like a case conference and follows many of the same rules - the judge tries to get the parties to reach agreement to resolve the case, or at least narrow the issues for trial. The judge also makes sure the case is ready to proceed to trial, so that there are no unnecessary delays or surprises once the trial starts.
Often a party will need more information about the claims being made by the other party. People involved in a legal dispute can require the other party to provide relevant documents and to come to an examination for discovery, which is like a cross-examination. The examination for discovery takes place outside court, usually at a lawyer's office. The party requiring the examination can ask the other party questions about the case, for example, the party's plans for caring for the children and his or her financial situation. A court reporter records all the questions and answers, and the printed record (transcript) may be used at the trial.
At the final court hearing, each party will have the opportunity to testify under oath or affirmation and call witnesses to testify on his or her own behalf. Everyone who testifies at a court hearing may also be cross-examined by the other party or his or her lawyer. After all the evidence is given, each party can make a final presentation to the court (argument or submission). Each party summarizes the evidence and the law and tries to convince the judge that his or her position is the right one.
After the hearing, the judge will consider all the evidence, which includes the testimony given in court, any out-of-court examinations filed by the parties and any documents accepted by the judge as evidence during the trial. The judge will also review any legislation or case law submitted by the parties. The judge will make a decision and give it to the parties, either orally in court or in a written document (reasons for decision) usually issued at a later time.
The parties or their lawyer(s) are responsible for preparing a written order in the proper form for the court to sign. Each party should receive a copy of the signed order.
Uncontested Matters
Where a petition is not opposed, the petitioner can submit his or her evidence in affidavits and does not have to appear in court. After reviewing the documents, the judge can grant the orders requested, or order that additional affidavit evidence be given, or order that evidence be given in court on some or all of the issues.Variations
Parties sometimes want a final order to be changed. For example, the party with whom the children reside may need more money for the children. (See Chapter 7 for more information on child support and varying child support orders.) If the other party agrees to the change, the parties can obtain a consent order from the court without having to appear in court. If the other party does not agree, the party wanting the variation will have to file an application in court with an affidavit explaining why the change should be made. The other party may file an affidavit in reply. Usually, the hearing will proceed like a contested interim motion. The judge will make a decision based on the affidavits filed, and any cross-examinations, but there will not be a trial with testimony given in court.
A party who is unhappy with the court's decision on any matter may appeal that decision to a higher court. Appeals must be filed within certain time limits set out in the legislation or court rules that apply to the case. For example appeals of orders made by a judge under The Family Maintenance Act of Manitoba must be filed within 30 days of the filing of the order with the court. Appeals of orders under the federal Divorce Act must be filed within 30 days after the court made the order. It is important to get legal advice quickly if you wish to appeal an order.
A list of court offices appears in Chapter 16, Important Addresses and Phone Numbers.
ALTERNATE DISPUTE RESOLUTION
Separating spouses and parents should consider mediation for resolving their difficulties before plunging into what may be a very costly and hurtful court battle. A mediator is a neutral third party who helps people reach their own agreement. Mediation is not appropriate for every family, for example, where there is family violence or a power imbalance between the parties.
Mediation on parenting issues is available at no cost through trained mediators at Family Conciliation, a provincial government service (see Chapter 5, Parenting Arrangements). Family Conciliation also offers Comprehensive Co-Mediation through its Winnipeg office. This is where parents mediate all of the issues arising from their separation, including support and the division of family property. There are also social workers, psychologists, lawyers and other persons in the private sector who offer mediation on parenting and financial issues on a fee-for-service basis. Many of these people advertise in the Yellow Pages. You may also contact Family Conciliation, Family Mediation Manitoba and Family Mediation Canada for a list of people who do mediation. There are no laws requiring people who practise as mediators to have any training or qualifications.
Before retaining a mediator, it is important to ask about the person’s qualifications, for example whether the mediator has been certified by Family Mediation Canada.
For further information, contact:
Family Conciliation
2nd Floor, 379 Broadway
Winnipeg MB R3C 0T9
Phone: 945-7236
Fax: 948-2142
Toll-free: 1-800-282-8069 (Ext. 7236)
Website: www.gov.mb.ca/fs/childfam/family_conciliation.htmlBrandon: 726-6336
Toll free: 1-800-230-1885Dauphin: 622-2035
Toll free: 1-866-355-3494Thompson: 677-6570
Toll free: 1-866-677-6713The Pas: 627-8311
Toll free: 1-866-443-2292Flin Flon: 687-1700
Toll free: 1-866-443-2291Swan River: 734-3491
Toll free: 1-888-269-6498Family Mediation Canada
Suite 180
55 Northfield Drive East
Waterloo ON N2K 3T6
Fax: 1-416-849-0643
Toll free: 1-877-362-2005
E-mail: fmc@fmc.ca
Website: www.fmc.caFamily Mediation Manitoba
P.O. Box 2369
Winnipeg MB R3C 4A6
Website: www.fmm.winnipeg.mb.ca
Some lawyers in Manitoba provide collaborative family law services. This is where each party hires a lawyer to act as an advisor and the parties negotiate their issues with their lawyers by their sides. This allows the parties to try to settle their own issues, but with legal protection. The process may also include other professionals, such as therapists or financial experts.
The parties must be prepared to co-operate and agree not to go to court. If an agreement cannot be reached, both lawyers must withdraw. In April of 2004, Legal Aid Manitoba began a pilot project in Collaborative Family Law. Where both parties qualify for legal aid, they will each be referred to one of two specialized Legal Aid offices, where their lawyers will use the collaborative law process. If only one of the parties qualifies for legal aid, they can still use the collaborative law process if both agree. For more information, contact
Legal Aid Manitoba
Winnipeg Law Office
807 - 294 Portage Avenue
Winnipeg MB R3C 0B9
Phone: 985-9732
Toll free: 1-800-261-2960For information on private lawyers who do collaborative law, contact Family Mediation Manitoba, CLEA's Law Phone-in and Lawyer Referral Program (see Chapter 1 for contact information) or check the Yellow Pages.
Another way of dealing with a dispute outside court is arbitration. An arbitrator is an independent person, often a lawyer, who the parties have agreed can hear and decide their dispute. The arbitration process is similar to court but simpler and less formal. Sometimes when people enter into a separation agreement (see Chapter 4, Separation and Divorce) they agree that if either want a change in the agreement in the future, they will use arbitration rather than go to court.
