Family Division Procedures

The following description of court procedures in the Court of King’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 King’s Bench (Family Division) in Manitoba are subject to the Triage/Case Management Model that was introduced in February 2019. For more information, please reference the Case Management Pamphlet and the 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 King’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 Associate Judge

Prior to a triage conference, a party may make applications to the Associate Judge of the Court of King’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

Triage Conference

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.

Emergent 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.

Trial readiness

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.

Trial/final hearing

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
Adoption
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.

How would I obtain a Divorce Certificate?

Complete the following steps to receive a Divorce Certificate:

Review the file on the online Court Registry System to confirm if the required information is available in the Notes column:

Certificate of Marriage must include the date of marriage
Divorce Judgment must include the effective date

contact the court office

Attend the court office to pay the required fee. For information about court fees related to your matter, please visit: Courts Fees. If you need assistance please call 204-945-0344 in Winnipeg or the local court house in your region. For a list of court houses, please visit: Location and Contact Info.
Once payment has been received, a Deputy Registrar will prepare the certificate while you wait.

Note: If you are unable to attend a court office in person, a request for a Divorce Certificate can be mailed to the court office. Requests sent by mail must include:

The name of the document being requested
Self-addressed stamped envelope
Your name, address, and telephone number
The current names of both parties
The names of both parties immediately before the day of marriage
File number (if available)
Filing fee by certified cheque or money order payable to the Minister of Finance. For information about court fees related to your matter, please visit: Courts Fees. If you need assistance please call 204-945-0344 in Winnipeg or the local court house in your region. For a list of court houses, please visit: Location and Contact Info.

How do I obtain copies of court documents (ex. for a child’s passport)?

Complete the following steps to get copies of court documents:

Review the online Court Registry System to confirm the name and number of the document you are requesting.
Contact the court office to confirm if the file is on site. If the file is not on site, the court will order the file.
Attend the court office to obtain access to the file and obtain the required copies.

Some court offices are equipped with self-service photocopiers (a fee per page may apply). For information about court fees related to your matter, please visit: Courts Fees. If you need assistance please call 204-945-0344 in Winnipeg or the local court house in your region. For a list of court houses, please visit: Location and Contact Info.
Court staff can make copies for a fee per page (minimum fee may apply)

Note: If you are unable to attend a court office in person, copies of documents can be mailed. Contact the court office to make the request and arrange for payment.

Where are court offices located?

For a list of court offices, visit:Location and Contact Info

Separation Agreements

Many couples settle all issues between them by entering into a written separation agreement. Through such an agreement, they can avoid court proceedings or shorten existing proceedings, except the proceedings needed to obtain the divorce order to end their marriage. However, an agreement cannot change a parent’s legal rights respecting custody parenting of their children under The Family Maintenance Act.

What is included in a separation agreement?

A separation agreement will usually deal with matters such as:

parenting arrangements (custody and access)
financial support (child support and spousal or common-law partner support)
division of family property
the right to live in the family home
responsibility for family debts
estate rights on the death of each spouse

Who can help me develop a separation agreement?

Sometimes, parties work out the main features of their agreement on their own or with the assistance of a mediator. Lawyers can then provide advice and put their agreement in a more detailed and formal document.

Often, couples are unable or unwilling to make an agreement on their own and each party hires a lawyer to bargain or negotiate the terms of an agreement. Sometimes, couples want to cut legal costs by having one lawyer act for both of them. This is not possible. A lawyer can only represent one party in a case.

It is important that both parties have independent legal advice, because a separation agreement is a legally binding contract. If a spouse fails to meet the requirements of the agreement, the other spouse may sue in court. If the agreement is a bad bargain for one spouse (e.g., a spouse gets less property than they would be entitled under the law), a court is unlikely to interfere, although this is a possibility in some cases. For example, the court may set aside an agreement if a spouse convinces the court the agreement was made because of fraud or unfair pressure.

A separation agreement can be more detailed than the usual court order and more tailored or sensitive to the particular family’s needs. However, it is not a court order and can be more costly and difficult to enforce. In Manitoba, in some circumstances, provisions in a separation agreement for the payment of support can be enforced through the Maintenance Enforcement Program. Please visit the Enforcing Support section of this website for more information.

Court Orders of 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)
custody
access
child and spousal support
financial disclosure
sole occupancy of the family home
protection

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

A spouse does not need to prove any fault or misconduct by the other spouse to obtain an order of separation. 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 the Child Support and Spousal and Common-Law Partner 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 $5,000. 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 may have to 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.

Common-Law Partners

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, 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.

Divorce

Is there a Residency Requirement?

An application for divorce can only be made in a province if one of the spouses has been a resident of that province for the past year or more.

What are Joint Petitions?

Usually one spouse files the application for divorce, called a Petition for Divorce, although the Divorce Act allows spouses to file the petition together. Some spouses feel a joint petition is more appropriate when they agree on all issues.

What is a Divorce Hearing?

Uncontested divorce applications may be decided based on either written sworn statements (affidavits), or oral evidence given by one or both spouses under oath at a short court hearing. Many spouses prefer an uncontested divorce decided on the evidence in affidavits, so they do not have to appear in court.

Where the spouses do not agree on the divorce, or on issues relating to the divorce, such as parenting arrangements (custody and access) or support, they have to go through the court stream for contested family law matters. If the judge feels the spouses may be able to reconcile, the judge may adjourn the divorce hearing to give them the opportunity to do so.

The court must also be satisfied that reasonable arrangements have been made for the support of the parties’ children. If the judge feels that reasonable arrangements have not been made, the judge must postpone granting the divorce until that is done.

What is a Divorce Judgment?

If, after considering the evidence, the judge believes that marriage breakdown has been established, the judge grants a preliminary order called a divorce judgment. The parties can’t remarry until the divorce becomes final (takes effect). The divorce automatically becomes final on the 31st day after the divorce judgment is granted, unless the court has ordered that it is final sooner, or one spouse appeals it.

After a divorce becomes final, the former spouses should obtain a certificate of divorce from the court office. This document proves that the divorce has taken place and will need to be produced if either person wishes to marry again.

Are there other Orders available on Divorce?

A judge dealing with a divorce application can also consider questions of parenting arrangements (custody and access), child and spousal support, as well as matters governed by provincial law, such as claims for property and protection orders. Provisions relating to such matters are contained in a separate order. The court can also grant temporary orders (interim orders) of custody respecting parenting arrangements and support, where such decisions are needed before a trial can take place and the issues resolved on a final basis.

Family Law Manitoba is your source for information and support.