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, adoption, and certain family support applications where one party lives outside Manitoba, are different in some respects. Please refer to the following sections: Child Support, Partner Support, Child Protection, and Adoption for more information on how the court system operates in those cases.
What are the first steps?
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, a notice of application, or sometimes a statement of claim. The party who files the documents is called the petitioner, the applicant, or sometimes the plaintiff.
Does the other party need to be notified?
Other parties involved in the dispute (such as a spouse or a parent) must be notified of the application (served), so they have an opportunity to present their position to the court. To respond to a petition, a person files an answer. To respond to a statement of claim, a person files a statement of defence. Where a party cannot be found to be served, an application may be made to the court for an order to permit the person to be served in an other way – for example, by putting a notice in a local newspaper, known as a substitutional service).
Can a court order be changed (varied)?
Parties sometimes want a final order to be changed. For example, one of the parents may want to change the amount of time that the children live with each of the parents. If the other party (usually called the respondent) agrees to the change, the parties can obtain a consent order from the court, without having to appear in court.
If the respondent 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. If they are opposing the application, the other party must file a notice of opposition to variation and file an affidavit in reply. The judge will make a decision based on the affidavits filed, and any cross-examination. However, in most cases, there will not be a trial with testimony given in court.
What happens when an order was not disputed (Uncontested)?
If the respondent does not file an answer or notice of opposition to variation, the party applying for the order may submit their evidence in an affidavit. An affidavit sets out the facts relevant to the application and swears, or solemnly affirms, the truth of the statements.
Affidavits must not contain irrelevant or purely inflammatory statements. If they do, the court may reject all or parts of them, and penalize the party who filed them. After reviewing the documents, the judge can grant the orders requested, or order that additional affidavit evidence be given in court, on some or all of the issues.
What if the parties agree (Consent)?
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.
What are the next steps and requirements?
Separation and divorce in the Court of Queen’s Bench (Family Division) in Manitoba are subject to the Triage/Case Management Model that was introduced in February 2019. For more information, please download: Triage/Case Management Model – Triage/Case Management Model document.
What are the steps in the Triage/Case Management process?
Complete the Prerequisites
Depending on the issues between the parties, the parties must do certain things and provide and file certain documents (called prerequisites) before they will be able to meet with a judge at a triage conference.
Examples of Prerequisites
- The applicant party must have filed their application, and the responding party must have filed their response (answer, statement of defence or notice of opposition to variation) and any response the applicant makes to the responding document.
- Depending on the proceeding, certain documents must be filed (e.g., if it is a divorce case, a marriage certificate must be filed).
- The required documents must be served on the other party and any required third parties (e.g., if a declaration of parentage is sought, the director of Child and Family Services must be served).
- The parties must have tried to resolve the matters outside of the court process (e.g., by mediation or settlement meetings).
- If it is a custody or access case, the parties must have attended the For the Sake of the Children Program.
- If mediation was attempted, a report or letter advising that mediation has failed or did not proceed, must be obtained.
- In a custody or access case, if an assessment report is required, there must be confirmation one has been ordered or completed.
- In a custody or access case, a written parenting plan must be completed by both parents. A parenting plan is a description of how parenting time and responsibilities will be shared between the parties. Here is an example: https://www.justice.gc.ca/eng/fl-df/parent/plan.html
- A financial statement (Form 70D) and the last three years of income tax returns must be exchanged.
- Comparative Family Property Statements (Form 70D.5) must be exchanged, if property is in issue.
If the applicant party is requesting an order to suspend enforcement of a child or spousal support order, they must state that they have first requested an administrative suspension from the Maintenance Enforcement Program.
Triage screening court
When a party has completed the prerequisites, they may attend before the triage screening coordinator of the Court of Queen’s Bench to obtain a date for a triage conference before a triage conference judge. They must file and serve:
- a Request for Triage Conference (Form 70D.2)
- a Certificate of Prerequisite Completion (Form 70D.3)
- a Triage Brief (Form 70D.4)
If all prerequisites are met, the triage screening coordinator will give them a date before a judge at a triage conference.
Motions before the Master
Prior to a triage conference, a party may make applications to the Master of the Court of Queen’s Bench for a variety of orders such as:
- financial disclosure
- to determine whether a party has satisfied applicable prerequisites
- to compel a party to complete applicable prerequisites
- to appoint a family evaluator to complete an assessment in a parenting arrangements (custody or access) case
- to refer parties to mediation
- to obtain orders of substituted service, validation of service or extension of time for service
Both parties must attend in person before the triage judge, unless the judge allows attendance by telephone or video conference. The triage judge will review all issues in dispute and will try to resolve the dispute in a cooperative way. If the triage judge determines that certain matters cannot wait to be decided at the case conference, they will schedule a prioritized hearing within 30 days. The triage judge will schedule a case conference before another judge to take place, within 30 days after the triage conference. If a prioritized hearing takes place, the judge hearing the prioritized hearing will schedule a case conference within 30 days after the prioritized hearing.
Generally, a party cannot make an application to a judge prior to a triage conference, unless it involves one of the following:
- immediate risk to a party or child
- removal of a child from Manitoba
- loss or destruction of property
A party who wants an emergent hearing must file a request for an emergent hearing (Form 70BB). If a judge decides to hear the emergent hearing, the party must comply with all prerequisites before obtaining a triage conference date.
For more information, please visit the Urgent section.
First Case Conference
Both parties must attend the case conference in person, unless the judge allows attendance by telephone or video conference. A case conference judge will review all areas in dispute and will try to resolve the dispute in a cooperative way. If an agreement is reached, the judge may make a final order. If the case cannot be resolved, the judge will set a trial date to occur within 12 to 15 months of the first case conference. If there are matters that must be determined before the trial date, the case conference judge will decide the issue. The case conference judge may schedule subsequent case conferences prior to the trial date.
Each party must file a Trial Readiness Certificate (Form 70S.3) no later than 45 days before the trial date. If a party fails to file a trial readiness certificate, costs may be awarded against them but the trial or hearing will proceed if the parties cannot agree.
Parties will testify before a judge and may call witnesses to prove their cases. In a variation proceeding, the case conference judge will conduct the final hearing. In variation hearings, the parties do not usually testify. Their evidence is presented to the court in affidavits.
Exceptions: The new Triage/Case Management Model process does not apply to:
- Child Protection
- Private Guardianship
- Applications for access to a child by persons other than parents (e.g., by grandparents)
- Child Support Recalculation
- Consent Variation Orders
- Consent Orders
- Uncontested divorce/separation
- Inter-jurisdictional support orders
- Cases under the Hague Convention on the Civil Aspects of International Child Abduction
- Cases under The Child Custody Enforcement Act
What can I do if I do not agree with the court’s decision?
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 MaintenanceAct of Manitoba must be filed within 30 days of the filing of the order with the court. Appeals of orders under the federal DivorceAct 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.
Where are court offices located?
For a list of court offices, visit: http:http://www.manitobacourts.mb.ca/provincial-court/locations-and-contact-info/