Court Orders on Separation
When spouses separate and one or both want or need the court’s assistance, but don’t wish to start divorce proceedings at that time, either spouse can apply for a court order under The Family Maintenance Act. The court can make orders of:
- Separation (non-cohabitation)
- child and spousal support
- financial disclosure
- sole occupancy of the family home
An order can be granted on a temporary basis (interim order) until the issues are settled on a final basis (final order).
Order of Separation (non-cohabitation)
A court order of separation, referred to as an order of non-cohabitation under Manitoba law, is NOT required for spouses to separate – they may simply choose to live separate and apart. In rare circumstances, a spouse may want to obtain a non-cohabitation order if there are issues relating to property or financial support and there may be a dispute as to the date of separation.
To obtain an order of separation (non-cohabitation), a spouse does not need to prove any fault or misconduct by the other spouse. It does not matter if the spouses have agreed to separate or not, or if one spouse may have been more at fault than the other. If the judge feels that the spouses may be able to reconcile, the judge may postpone the proceedings to allow the spouses to consult a marriage counsellor.
Order Respecting Period of Cohabitation
For common-law partners, the court can make a finding about the period of time they cohabited in a common-law relationship and the dates their cohabitation began and ended.
Order of Custody and Access
The Act provides for orders of custody (the right to care and control of a child) to one parent alone or to both parents (joint custody). Orders of access set out the kind of contact a parent without custody will have. Please see the Parenting Arrangements section of this website for more information.
Before the court hears a request for custody or access, the parties ordinarily must attend a program called For the Sake of the Children, to get information about the effects of separation or divorce on children. The Parenting Arrangements section of this website explains the law in the area of custody and access and provides more information about the For the Sake of the Children program.
Order of Financial Support
Either spouse can ask the court to order the other spouse to pay maintenance to support the spouse or any children in their care. Please see theChild Support and Spousal Support sections for more information.
Order of Financial Disclosure
Both spouses have the right to request and receive financial information from each other, for example, tax returns and statements of earnings, assets and debts. This right exists both before and after separation. If a spouse fails to provide the information when requested, the other spouse can apply to the court for an order of financial disclosure and for an order requiring the spouse to pay a penalty of up to $5000. The court may also order a spouse’s employer to provide financial information about the spouse.
Order of Sole Occupancy
The court can order that one spouse alone will have the right to live in the family home. This kind of order prevents the other spouse from living in the home, even if they own it.
Order of Postponement of Sale
Where the court gives a sole occupancy order to one spouse and the other spouse owns all or part of the home, the court can also postpone any rights that the other spouse must divide, rent, sell or otherwise dispose of the home.
Order of Protection
The Safety section of this website sets out the types of orders of protection (protection and prevention orders) the court can make under The Domestic Violence and Stalking Act. Under The Family Maintenance Act, the court can make orders prohibiting or restricting communication and contact between spouses or common-law partners.
If, at any time, the safety of a spouse or common-law partner, or their children, is threatened, the police should be contacted at once for assistance. For other protection and help available to an abused spouse or partner, visit the Safety section of this website.
Order of Costs
The court usually orders the spouse who has been unsuccessful in the court proceedings to pay part, or in rare cases, all of the legal costs of the successful spouse. For example, a spouse who has refused to pay a reasonable amount of support may be ordered to pay costs, or a spouse who has been uncooperative about financial disclosure may have to pay costs. Cost orders are always at the discretion of the court.
Family Dispute Resolution Pilot Project
In June 2019, the Manitoba government passed legislation to create a process outside the traditional court system for resolution of family disputes. Participation in the process will be mandatory for people in Winnipeg who have disputes about custody, access, or support under The Family Maintenance Act, or who have disputes about family property.
The legislation, called The Family Dispute Resolution (Pilot Project) Act, is not yet in effect. However, it can be viewed on the Manitoba Legislative Assembly website at: The Family Dispute Resolution (Pilot Project) Act
One area where common-law partners are treated differently from married spouses is divorce. Only married spouses can seek a divorce. However, except for an order of separation (non-cohabitation), all of the court orders on separation described above, are also available to common-law partners.
While common-law partners cannot divorce, some Manitoba laws provide for the termination of common-law relationships. In the case of a common-law relationship that is registered with the Vital Statistics Agency, it can be terminated if either or both partners register a dissolution of the relationship with the Vital Statistics Agency. This can only be done after the couple has lived separate and apart for at least one year. If only one of the partners registers a dissolution, the other partner must be given notice of it.
For common-law partners who never registered their relationship with the Vital Statistics Agency, it can be terminated by them living separate and apart, usually for at least three years. Some rights and obligations of common-law partners may continue, even after the relationship has been terminated, just as some rights and obligations of spouses may continue for a period of time after divorce. It is best to seek advice from a lawyer about this.