Law Frequently Asked Questions

A young child has contacted me with concerns about their treatment in the care of Child and Family Services. Who can I contact for assistance?

The Office of the Children’s Advocate provides support and advocacy for individuals involved in the Child and Family Services system. They can be contacted at:

988-7440 or 1-800-263-7146

They are located at:

100 – 346 Portage Avenue.

Do grandparents have access rights to their grandchildren?

Grandparents have a right to ask the Court for access to their grandchildren. Whether or not the Court will give access will depend on what is in the best interests of the child. Contact the Grandparent Advisor (Family Conciliation Services) for more information: (204) 945-7236.

Can a parent be charged with child abduction even where there is no court order in place?

Yes. However, the Attorney General must agree to lay a criminal charge. Usually, the Attorney General would agree only if:

– the parents and child were living together and suddenly one parent takes the child away from Manitoba without the consent of the other parent, with the intention of depriving the other parent of his or her rights; or

– separated parents have agreed in the past that a child is to live with one of them, and the other parent later decides to take the child away without a court order, again, with the intention of depriving the other parent of his or her rights.

Can a parent be charged with abducting their own child?

If one parent has custody, it is illegal for the other parent to take the child away without your consent or a court order. If this happens, the parent could be charged with child abduction under the Criminal Code of Canada. If a parent is charged, the Attorney General’s office will involve the police to try to get your child back and a Crown Attorney can prosecute the parent for the crime. If the child is taken out of province, the Attorney General’s office and the police would contact the other province’s police and Attorney General’s office to try to locate your child and return him or her to Manitoba.

What happens if the other parent comes and takes the children away from me?

The basic rule is that a mother and father with joint custody have an equal right to live with their children, unless a court order or agreement says differently. Once a court order or agreement puts children in one parent’s care, the other parent no longer has that basic right.

Will I lose my rights to custody if I leave and don’t take the children with me when I leave our family home?

Not necessarily. You always have the right to apply for custody, even if you left the home and the children. If you don’t apply for custody soon after leaving your partner, you may hurt your chances of getting custody. If you delay, the court may not want to change the children’s situation. Remember, the court always thinks of what’s best for the children, and stability is very important for children. If you can’t take your children with you when you leave, you should see a lawyer immediately about applying for a custody order

My ex-spouse and I argue every time we meet to exchange care of the children. How can we avoid this?

You could try to make exchange arrangements through trusted third parties like friends or family members. Also, the Winnipeg Children’s Access Agency and the Brandon Access/Exchange Services provide a safe place with trained people where exchanges can be made safely. There is a fee for this service.

Is there any way that my children can have their wishes known to the court in a custody case?

The Brief Consultation Service offers a service where the wishes and concerns of children between the ages of 11-16 are told to a counselor. The counselor prepares a report for the court. The Brief Consultation Service can be contacted at:

(204) 945-4756

The other parent has sole custody and I have access to our child. Can I still get access to our child’s school and medical records?

Yes. You are entitled to receive school, medical, dental, psychological, and other reports affecting the child. This is a right to receive information about the child, not to be involved in decision-making, unless a court orders otherwise.

I lived with the father of our child for a few months after our child was born but for the last few years since then our child has resided only with me. Do I have sole custody?

In Manitoba, parents who have lived together after a child is born have joint custody, unless there is a custody order or agreement that says there is a different custody arrangement. If the parents have never lived together after the child is born, the parent with whom the child lives has sole custody, unless there is an agreement or court order that says otherwise. You can consult with a family law lawyer about drafting an agreement or getting a court order for sole custody.

Do I have to let my ex-spouse see the children when she/he does not pay child support? There is a court order that gives him/her access.

It is generally unwise to use your children as leverage in disputes with your ex spouse. If your ex-spouse has a court order granting access to the children, then it has been decided by the Court that it is in the children’s best interest to see the other parent. You may be held in contempt of Court for refusing to comply with the access order. If you want to change an access order, you must apply to Court to vary (change) the order. If your ex-spouse is required, by order or agreement, to make child support payments and is not making the payments, you should contact the Maintenance Enforcement Program, which has various options to enforce support payments, for example, by garnishing wages, seizing property, suspending a driver’s license, diverting a pension, registering the maintenance debt with the Credit Bureau, summoning the other spouse to Court, or imposing a fine and/or imprisonment.

What’s the difference between sole custody and joint custody?

When parents have joint custody, they share in major decision-making about the child. For example, they will decide together about things like which school the child will attend or which religion to teach the child. Sometimes, when there is joint custody, the child will still live mostly with one parent (primary physical care and control) and spend time visiting with the other parent (physical care and control as agreed or specified). Day to day decisions will be made by the parent who has care and control.

A parent with sole custody of a child makes major decisions about the child, like which school to attend or which religion to teach. This is the parent with whom the child lives and is the parent legally responsible for the care of that child. If the child spends time with the other parent, that time is called access.

When parents separate, how is custody and access decided?

Parents can decide for themselves about who will look after a child, where the child will live and spend time. If parents can’t agree, they can use mediation to help them reach agreement, or they can turn to lawyers and the Court to decide the issues for them.

When deciding about custody and access of a child, the Court will decide based on what is in the best interests of the child. If the parents are divorcing, the Court will also look at each parent’s willingness to have the other parent remain involved in the child’s life.

Can I get an annulment if I was only married for a few months before separating?

The length of the marriage is not a relevant ground for annulment. Grounds for annulment include – lack of consent (drunk or incompetent), already married, under age, duress, non-consummation.

What are the grounds for an annulment?

The court can grant an annulment if one of the following conditions existed at the time of your wedding:

* one or both of the spouses were under the age of majority and did not have parental or other required consent

* one or both of the spouses could not physically consummate the marriage

* one or both of the spouses were legally incompetent or extremely intoxicated and so couldn’t consent to the marriage

* one or both of the spouses were married to someone else

* one or both of the spouses were forced into the marriage (married under duress)

* one or both of the spouses were tricked into the marriage (fraud)

* one or both of the spouses were mistaken about who they were actually marrying (e.g. married the wrong John Smith)

What is the difference between a divorce and an annulment?

Divorce is the legal end of the marriage. Annulment is a declaration by a Court that your marriage never existed.

Can I file for divorce without a lawyer?

Yes. However, it is a good idea to have a family law lawyer help you with the process. You can get the forms for a divorce from the Law Courts Building at 408 York Avenue in Winnipeg. Community Legal Education Association also sells an Uncontested Divorce Guide for $25.
You can also get the forms online at: web2.gov.mb.ca/laws/rules/forms_e.php

I was married in Manitoba but filed for divorce outside of Canada after I lived in that place for several years. Is my divorce recognized in Canada?

If you lived in that other jurisdiction for at least one year before applying for divorce there, Canada will generally recognize the divorce

I was married in the United States but have lived in Manitoba for the last few years. Can I file for divorce here even if my former spouse is still living in the United States?

Yes. The Divorce Act only requires that one of the spouses must have been resident here for at least one year.

Can I file for divorce even if I am still living with my spouse for financial reasons?

Yes. You can still file for divorce as long as you have been living separate and apart in the same household. This usually means that you have separate bedrooms, do not perform chores for each other, have informed your friends and family that you are separated, and are living separate lives.

Can my spouse and I file jointly for divorce?

Yes. However, you may need to change the forms to reflect that fact that you are both filing as petitioners for divorce.

Can I apply for divorce anywhere in Canada?

You can only apply for divorce in a province where one of the spouses has been a resident for at least 1 year.

What are the grounds for a divorce?

There is only one ground for divorce in Canada: to show that your marriage has broken down. The Court will consider your marriage broken down if one of these three things has happened:

* You have lived separate and apart from your spouse for at least one year.

* Your spouse has committed adultery (had voluntary sexual intercourse with someone else). You must be able to prove that the adultery took place. You cannot apply for a divorce based on your own adultery.

* Your spouse has treated you in a physically or mentally cruel way. You must be able to prove that the cruelty took place, that it had serious effects on you, and that it made living together unbearable.

Are there any programs that can help my spouse and I with putting our decisions as to custody, support and property division into a written agreement?

Manitoba Family Services and Housing has a Family Conciliation department that offers a number of programs. If your spouse and you both agree you can attend their mediation program and a trained mediator will assist you with working out all of the issues that arise from separation. You may choose to take your agreement and have it finalized by a family law lawyer. Family Conciliation can be contacted at:

945-7236 or 1-800-282-8069

http://www.manitoba.ca/fs/childfam/family_conciliation.html

Can we share a lawyer to save money?

No. You each need to have a different lawyer. Your lawyer works for you, providing you with legal advice that applies specifically to your situation. One lawyer cannot provide independent legal advice to both spouses in a separation, because each spouse has different interests. Before signing any agreement, you should also each get independent legal advice from your own lawyer.

My spouse and I are separating. Can we write up our own agreement?

Yes you can, but most people decide to have a lawyer prepare the agreement. You have to be careful that you cover all the issues between you and your spouse, and that you use the right wording in the agreement. A separation agreement is a very important legal document that deals with issues like your children and your finances. You must be able to rely on the agreement in the future and be able to enforce the agreement through the Court if it isn’t followed. You should also each get independent legal advice from your own lawyer before signing a Separation Agreement.

What is the difference between a separation and a divorce?

Separation is when a married couple decides not to live together as husband and and wife any longer. In most cases, this means one spouse leaves the marital home; but in some cases you can continue to live in the same home and still be considered separated. No matter how long you are separated, you are still legally married until you get a divorce.
Divorce is the legal end of a marriage. It happens only when a Court gives an order called a Divorce Judgment. You can apply to Court for a divorce at any time after you have separated.

Can I incorporate a not-for-profit organization on my own?

A not-for-profit organization must be incorporated by three or more directors who are not bankrupt.

CLEA booklet – Beginning & Incorporating Not-for-Profit Organizations in Manitoba $20.00. https://www.communitylegal.mb.ca/publications-store/

Companies Office for more information: www.companiesoffice.gov.mb.ca/notices/non_profit.pdf

Are there any records that our not-for-profit organization should be maintaining?

The following records should be kept:
(Section 20 of the Corporations Act)

– Articles of Incorporation
– By-laws
– Amendments ti Articles and By-laws
– Minutes of all meetings of board and committees
– Resolutions
– List of all directors, with addresses, occupations, and dates of service.
– Accounting records