Frequently Asked Questions
If a motion was filed over one year ago and no hearing date has been set, you can argue that the motion should be considered abandoned per Court of Queen’s Bench Rule 20(7). If the party wants to extend the time to set a hearing they should apply for leave from the court.
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 Queen’s Bench Forms: http://web2.gov.mb.ca/laws/rules/forms_e.php.
The Motion Brief should have:
A Motion Brief must be filed before the contested motion date.
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.
You are allowed to do a Response to Notice of Motion of Expunge, which explains why the information in your affidavit was properly included. You may consider that your information is relevant to a matter at issue while the other party has argued that you only included it to upset them or be scandalous. You would state why the information is relevant and how it legitimately assists the court in making a decision. You have three days to file and serve this response after being served with the Notice of Motion to Expunge and you must confirm when you were served with the Notice of Motion.
The Motion to Expunge can’t be heard until after the first case conference. The motion will be heard and decided by a master. A master is a judicial officer of the court who has the authority to decide certain procedural matters. Oral argument is not usually permitted at the motion but the Master can request it.