Motions

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.

The Motion Brief is a document that gives you a chance to refer to relevant cases and statutes, provide argument, and highlight relevant facts from your affidavit. The Motion Brief is Form 70R in the Court of King’s Bench Forms: http://web2.gov.mb.ca/laws/rules/forms_e.php.

The Motion Brief should have:

• • Information about what issues are being disputed,
  • A list of the relevant documents,
  • Your position on the matters at issue,
  • Relevant cases and legislation, and
  • Financial calculations if child support, spousal support, or arrears are being decided.

If something has been agreed on you should let the judge know this first. If this is your motion, you will have a chance to speak first for a limited time. This is often 15 to 20 minutes. You should make your argument based on the evidence that you already have before the court in affidavits and transcripts. You can refer to sections of those documents when appropriate. You should also argue any cases or refer to legislation that addresses the issue the court is deciding.

The other party will have a chance to respond with their own argument for the same amount of time. You will get one more opportunity after the other side argues, to address any new issues brought up by the other side.

The judge will usually make a decision at the motion. However, the judge may reserve the decision. This means that you may have to wait for the judge’s decision at a later date. Make sure that you are clear on what the judge has ordered.

In addition to the evidence in the affidavit, you can also provide the transcripts of a cross-examination of an individual on their affidavit or examination of a witness out of court.

A Motion to Expunge is a type of motion that seeks to set aside all or part of an affidavit being used in family proceedings. If the contents of an affidavit are scandalous, frivolous, vexatious, irrelevant, repetitive or otherwise not in compliance with the rules, the other party may seek to expunge it.