Documents and Definitions

You may be able to request an emergent hearing date, before the triage conference, if your situation involves:

• An immediate or imminent risk of harm to a party or a child of a party;
• The removal of a child from Manitoba;
• The loss of destruction of property.

A February 13, 2020 Practice Direction further clarified that abrupt, unilateral termination of contact may constitute an immediate or imminent risk of harm in certain cases:

http://www.manitobacourts.mb.ca/site/assets/files/1152/final_practice_direction_on_clarification_of_the_new_fd_model.pdf

“Additionally, however, an emergent request and emergent relief may be justified in situations where one parent has abruptly, unilaterally and without explanation or apparent justification, completely cut or has “virtually eliminated” all access and/or contact between the other parent and a child or children.”

You will have to contact your local court office and request the Triage Conference Coordinator. The Triage Conference Coordinator will review your request and your court file to determine whether your file is new, ongoing, or closed with a final order granted. They will provide further advice based upon the status of your file. If you have a new file, the Coordinator may advise proceeding with a request for an emergent hearing if a pleading is filed. You can get the Request for an Emergent Hearing form here:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=70BB

Masters can hear a number of motions prior to a triage conference:

(a) motions dealing with service of documents, such as substituted service, validated service or requests to extend the time for service;

(b) a motion for financial disclosure;

(c) a motion to withdraw as counsel;

(d) a motion to determine whether a party has satisfied all applicable prerequisites in order to obtain a triage conference date;

(e) a motion to compel a party to complete applicable prerequisites in order to obtain a triage conference date;

(f) a motion to appoint a family evaluator under subsection 49(1) of The Court of King’s Bench Act;

(g) a motion to refer parties to a designated mediator under subsection 47(1) of The Court of King’s Bench Act.

Although most motions and applications can’t be dealt with in a family proceeding prior to the triage conference, The Court of King’s Bench Rules lists some exceptions. The following can be dealt with prior:

• An application under the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) for an interim order of exclusive occupation without notice;
• A motion for an order of reference dealing with the date that cohabitation started or the date of separation;
• A motion for an order of reference on family property issues unresolved, either by written agreement or court order, with the consent of both parties.

Due to changes to the family court system on February 1, 2019, a motion for support can no longer be heard by the court until after the triage conference. To get a triage conference date, you must first attend triage screening court by filing the following forms:

Request for Triage Conference (Form 70D.2) 
http://web2.gov.mb.ca/laws/rules/form_2e.php?form=70D.2

Certificate of Prerequisite Completion (Form 70D.3) 
http://web2.gov.mb.ca/laws/rules/form_2e.php?form=70D.3

Triage Brief (Form 70D.4)
http://web2.gov.mb.ca/laws/rules/form_2e.php?form=70D.4

These forms are supposed to be filed and served on the other party at least 14 days before the proposed triage screening court. At triage screening court, the coordinator will review your file and make sure that the required prerequisites have been completed. If they are satisfied, a triage conference date will be set. If some of the prerequisites have not been met, then the coordinator will let you know what needs to be completed to set a date. If there is a dispute between the parties about the prerequisites, you can schedule a motion before a Master for assistance.

Once you have started a proceeding by filing a Petition, Petition for Divorce, or Notice of Application, you can also apply for an interim order by filing a Notice of Motion and an Affidavit. An interim order is an order of the court intended to decide matters until a final order can be made at trial. Matters such as support often need quick attention by the court when the parties can’t reach an agreement. Interim orders are enforceable in the same way as a final order and they can be extremely important. They may establish a status quo (the way things are currently) that might be difficult to overturn in future court proceedings.

Parenting arrangements, child and spousal support, occupancy of the home, preservation of property orders, and protection and prevention orders are the types of orders that are commonly granted on an interim motion.

You can use the Form 35B Answers on Interrogatories: https://web2.gov.mb.ca/laws/rules/form_2e.php?form=35B

It means that the case conference judge must preside at all future case conferences and will hear all motions in the family proceeding.

You may also choose to file a case book. The case book is a document that contains legal cases that are considered relevant to the appeal issues. The book may be filed jointly by both parties. It should be filed within 14 days of when the appellant files the factum if the appellant is filing a case book on their own. It should be filed within 14 days of when the respondent files their factum if it is filed jointly, or if it is filed by just the respondent.

An affidavit of documents does not have to be filed in court unless it is relevant to an issue on a pending motion or at trial.

An affidavit is a sworn statement of facts that can be filed as evidence in court. An affidavit must be signed by the deponent (the person making the claims) and sworn before a Commissioner for Oaths, Notary Public, or Deputy Registrar for King’s Bench. Affidavits are filed in support of other court documents, such as Notices of Motion, or Notices of Application.

Making a false claim in an affidavit could lead to a charge of perjury under the Criminal Code.

You can find an Affidavit (Form 4D) in the Manitoba Court of King’s Bench Forms (Civil):

http://web2.gov.mb.ca/laws/rules/form_2e.php?form=4D

Your affidavit should have statements of fact, within your knowledge, that are important to the matter that the court is deciding. If the evidence that you want to include in an affidavit is not within your personal knowledge this is called hearsay and the information can only be included under certain conditions. Hearsay statements can be included if you provide the statement, say who made the statement, and confirm that you believe the information to be true.

Your affidavit should not include statements that are mere opinion or argument and the statements should be necessary to decide the issue, and not be included just to upset the other party.

You should include documents that support statements made in your affidavit. Documents such as paystubs, employment confirmation, school admission and transcripts, e-mails, letters, and previous orders and agreements may be relevant exhibits.

Generally speaking, if you are having your signature witnessed in Manitoba, a Notary Public, Commissioner for Oaths, or Deputy Registrar can witness an affidavit. If your affidavit is being used in another province or state, a Notary Public should witness your signature, not a Commissioner for Oaths.

The Affidavit of the party applying to vary (change) the court order should be served and filed at the same time as the motion or application. The person responding is supposed to file a Notice of Opposition to Variation and their Affidavit within 20 days of when the motion or application was served on them, if they are opposing the matter. They should also file applicable financial information within the 20 days. This may include a Financial Statement (Form 70D) and other financial disclosure listed in s. 21 of the Federal Child Support Guidelines like income tax returns, notices of assessment and reassessment, and statements of earnings.

If you want to file an affidavit past the time in the King’s Bench Rules or after the time that the court allowed, you should mark the affidavit on the first page as “late” and file it with a Notice of Motion, to be heard on the hearing date in question, requesting leave (permission) to file the late affidavit. This does not apply to a motion before a judge as part of a family case that is subject to the case management process.

You are allowed to file one affidavit of your evidence in support of your Notice of Motion. The responding party is allowed to file one affidavit in response. The moving party is allowed one further affidavit. This affidavit is only supposed to be in response to new information brought up in the responding party’s affidavit. It is not to be used to repeat evidence contained in your first affidavit.

There is no limit on the number of affidavits you file from different third parties in support of your case. The third parties may only file one affidavit per person and they must contain information relevant to the case.

You need leave (permission) from the court to file more than one affidavit (or two if you are the moving party). You must make a request to file an additional affidavit to a Master, case conference judge, or presiding judge at the hearing of the matter.

You can file your own affidavit, providing your own statements of fact and version of events in response to the allegations in the other side’s affidavit. In addition, you can do a cross-examination on the other side’s affidavit. To start a cross-examination you must have filed all of your affidavits and have completed any other examinations. The evidence provided by the person who is cross-examined can be used at trial. If a hearing or trial date is set, you must order transcripts for the court and the other party. You must also provide the other party with a free copy and pay any costs associated with the cross-examination to the other party, such as travel expenses.

You may respond to their affidavit with your own and dispute the claims that they made in their affidavit. However, sometimes individuals include improper information in their affidavit that is not allowed according to The Court of King’s Bench Rules and you may want to apply to expunge (delete) portions of the affidavit. If their affidavit contains scandalous, vexatious, irrelevant, opinionated, or repetitive information you may be able to file a Notice of Motion to Expunge.

Scandalous and vexatious statements are comments in your affidavit that were not included to decide the relevant issues. They were just put in the affidavit to upset the other party. Also, you can’t give your opinion or argue for a certain outcome in your affidavit. You are supposed to include the relevant facts that allow a court to decide the issues.

A case conference judge may provide directions on motions to expunge all or part of a pleading or document, such as an affidavit. The case conference judge can limit such motions or dismiss them.

An Affidavit of Documents is a list of relevant documents that relates to the issues in your case. Relevant documents are documents that may help your case or damage the other party’s case. The documents should have some relevance to the issues in the case.

Documents include such things as sound recordings, videotape, film, photographs, charts, graphs, maps, plans, surveys, books of account, and information recorded or stored on any other device.

The Affidavit of Documents should be served within 10 days of the close of pleadings. The Affidavit of Documents is not filed unless it is relevant to a pending issue at motion or trial.

You can find an Affidavit of Documents (Form 30A) for an Individual at the following link:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=30A

You can find an Affidavit of Documents (Form 30B) for a Corporation or Partnership at the following link:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=30B

Schedule A of the Affidavit of Documents lists documents that you do not object to showing the other side. Schedule B lists documents that you have in your possession but you object to showing the other side because they are privileged. You must identify the document (date of document, subject matter, title) and say why you believe that the document is privileged. The grounds for privilege are solicitor-client, litigation or statutory privilege, and without prejudice communications. Schedule C lists documents that were relevant and formerly in your possession but you no longer have. You must give enough information identifying the document, state how you lost possession of the document, and give information about where the document is now.