Law Frequently Asked Questions

What else do I have to file for an appeal?

You must also file an appeal book, factum, and the transcripts. The appeal book is a bound book that has copies of the documentary evidence that is relevant to the appeal. A factum is a document that contains your argument for the appeal. The four parts of a factum are

1)    the overview of the appeal issues,

2)    the statement of facts,

3)    the specific points in issue, and

4)    the statement of argument.

The factum should be less than 30 pages.

How do I file for an appeal from a judge’s order?

You have to file and serve a Notice of Appeal. The Notice of Appeal should set out which judge and court is being appealed from, the place of the hearing, the date that the order was pronounced (given by the judge) and filed, the grounds of the appeal, and the relief being requested. You must also indicate whether oral evidence was given at the hearing.

If you are filing an appeal from a consent order or order of costs you must first file a Notice of Motion and Affidavit asking for leave to appeal before proceeding.

Can I appeal an interim order?

The Manitoba Court of Appeal prefers that the parties go ahead with a trial instead of appealing interim orders. The trial judge does not have to follow the interim order and can make a brand new order. The Court of Appeal has said that interim orders are discretionary orders that are made looking at the specific facts involved at that time. This will not be changed on an appeal unless there is a serious error about a principle of law, complete misunderstanding of the evidence, or the decision is so clearly wrong that it amounts to an injustice.

Is it difficult to succeed on a custody appeal?

The Manitoba Court of Appeal will not change the trial judge’s order as long as the judge has considered and applied the right principles of law, has not completely misunderstood the evidence, or made a decision that is not obviously and clearly incorrect. The Manitoba Court of Appeal considers that the trial judge has had the opportunity to hear the evidence and see the witnesses directly when making the custody order and is therefore in a better position to make a decision.

What can the Court of Appeal do?

They can set aside the entire order, just part of the order, or vary (change) the order upon appeal. They can substitute their own decision instead of what the lower court ordered.

 

Is leave (permission from the court) needed to appeal to the Manitoba Court of Appeal?

Leave (permission from the court) is only needed in certain cases. Leave is needed to appeal a decision that is based on a consent order or that is for an order of costs against a party. If the order of costs is against a lawyer, leave is not required to appeal. You have to ask for leave from the judge who made the order.

Where do I appeal to from a decision of a family court judge?

A decision of a family court judge must be appealed to the Manitoba Court of Appeal by filing a Notice of Appeal.

 

How do I appeal the decision of a Master?

You can appeal the decision of a Master to a Judge of the Family Division by filing and serving a Notice of Appeal within 14 days after the order, certificate, or decision is signed. Your Notice of Appeal must set out what you are asking the court for (relief) and what your grounds are for the appeal.

What happens if I forget to ask for costs?

Unless the issue of costs is reserved for a later time or dealt with in some way, you may not make a request for costs for that proceeding at a later date. However, even if you did not request costs, the court may have considered costs and referred to them in some way. Here are some of the terms that a judge may use when speaking about costs:

With costs – usual cost award using Tariff A.

Costs to be spoken to – if no agreement is reached regarding costs a further hearing will be scheduled to deal with the matter.

Costs in the cause – issue of costs is deferred until final hearing or trial.

Costs in any event of the cause – even if ultimately unsuccessful a party is entitled to costs for the present hearing.

Party-and-party costs on a solicitor and client basis – more than a general award of costs but less than what a client actually paid their lawyer.

Costs as between a solicitor and his or her own client – the amount would be what a party actually paid their own lawyer.

 

How much are court costs?

Tariff A of The Court of Queen’s Bench Rules sets out costs. Tariff B sets out disbursements (out of pocket expenses). Tariff A divides different family proceedings into certain classes that are awarded a set amount of costs. For example, a case involving custody may have costs awarded of $1,500, just to compensate for drafting and serving the Petition.

 

What is an order of costs?

The successful party often receives an order of costs, or payment of money from the other party, to compensate them for their legal fees. Court costs are usually not enough to cover the entire cost of legal fees or out-of-pocket expenses. Costs are ultimately at the discretion of the court. When assessing costs the court considers many factors, including:

– the relative success of a party,

– the complexity of the case,

– how important the issues are, and

– conduct of the parties throughout the legal proceedings.

A self-represented party can also ask for costs.

Can I just file for a separation rather than a divorce?

Yes. You can file a Petition (Form 70B) and apply for relief under a separation, rather than a divorce. The court can make a number of orders including orders for child and spousal support, custody, and access. However, you do not have to apply for a separation before you proceed with a divorce, so if you are intending to eventually divorce, you may want to start the court process by filing a Petition for Divorce (Form 70A) instead.

Court of Queen’s Bench Forms

http://web2.gov.mb.ca/laws/rules/forms_e.php

How long do I have to appeal a decision of the court?

The time depends on what legislation you are dealing with. You will have to check the statute to confirm the deadline to appeal. For example, the Divorce Act states that you have 30 days after an order was made to appeal the decision. The Act also states that you can’t appeal the granting of a divorce itself on or after the date on which the divorce becomes effective. The Court of Queen’s Bench Rules state that if you are appealing the decision of a Master, Registrar, or Assessment Officer you only have 14 days to appeal, after the order, certificate, or decision appealed from is signed. For information on appeals to the Court of Appeal you should look at The Court of Appeal Act and Court of Appeal Rules:

https://web2.gov.mb.ca/laws/statutes/ccsm/c240e.php

https://web2.gov.mb.ca/laws/regs/current/_pdf-regs.php? reg=555/88 R

Where can I find information on court cases and do research for my case?

CanLII (or The Canadian Legal Information Institute) is a not-for-profit organization managed by the Federation of Law Societies of Canada. CanLII has a free database of legal information, including cases from each province and territory in Canada. You can search court decisions of various levels of court, tribunals, and administrative and regulatory bodies. There are also statutes and regulations available on the website, and legal commentary.

The Manitoba section of CanLII has court cases from the Manitoba Court of Appeal, Court of Queen’s Bench, and Provincial Court. There are decisions available from the Manitoba Human Rights Commission, Manitoba Labour Board, Manitoba Securities Commission, Manitoba Health Appeal Board, Labour Arbitration Awards, College of Physicians & Surgeons of Manitoba Discipline Committee, and the Manitoba Law Society Discipline Committee.

CanLII

http://www.canlii.org/en/mb/

The E.K. Williams Law Library at Robson Hall has a collection of legal resources available to the public. They are located at 224 Dysart Road at the University of Manitoba and can be reached at 204-474-9995.

What happens if I prepare the court order and the other side will not sign it?

The other party is supposed to review the drafted court order and provide their approval, unless otherwise ordered by the court. If the other side refuses to provide their approval, you may want to review the disposition sheet and see where there may be a dispute as to the terms of the order. You can get a copy of the disposition sheet from your court file. A transcript of the proceeding could also be ordered. If the other party still refuses to sign the order, you can arrange for an appearance before the judge who made the order to settle the terms and have the order signed.

When does a judge’s order come into effect?

Generally, an order comes into effect immediately, unless the court states otherwise. The order, however, must still be drafted and signed by the parties and the court. Until this is done, it will be difficult to enforce the order. Third parties do not know the terms of the order. There are standardized clauses for court orders that must be used in preparing the order. The Automated Family Court Orders can be found at the following link:

http://www.manitobacourts.mb.ca/court-of-queens-bench/court-proceedings/family-law/automated-family-court-order-project/

Can I use affidavit evidence at trial without calling the parties?

Yes, if you file and serve the affidavit on the opposing party at least 21 days before trial. This gives the other side time to decide whether they want to cross-examine the witness at trial. They must serve a notice of intent to examine at least 10 days before trial if they want the person who did the affidavit to attend trial and be cross-examined.

If the person who did the affidavit refuses to attend trial, the judge does not have to accept the affidavit evidence at trial. However, if you request that the person who did the affidavit attend trial and your cross-examination of them does not add anything significant and of importance to the case, then you may have costs ordered against you.

What is direct examination?

Direct examination is when you question your own witness. Your witness should be well enough prepared to provide the evidence necessary with just a few general questions. You can also ask specific questions for introductory matters involving the witness like the witness’ name and address. Your closing argument is based on the evidence given by your witnesses. Make sure that you are getting all the information that you need to effectively argue your case at the end.

When do I make an opening statement?

At the beginning of trial both you and the other party can choose to make an opening statement. The opening statement identifies the issues, states your position, and gives a brief summary of evidence that you intend to call. If you are the responding party, you can choose to make your opening statement at the beginning of trial, or after the other party closes their case and just before you begin to present your own case. If you are the responding party you may choose to make the statement at the beginning if you want the judge to be alert to your position when the judge hears the other party’s evidence.

 

When do I present at trial?

The moving party has the first opportunity to give an opening statement. The moving party is the person who started the court proceedings that led to a trial. The other person is called the non-moving or responding party. After the moving party gives his or her opening statement, the responding party can make his or her own opening statement, if they wish.

The moving party then can present their evidence and call their witnesses.  The responding party has a chance to cross-examine the witnesses, but does not call their own witnesses until the moving party has called all of their witnesses. The responding party can make an opening address now if they did not already do so at the beginning of trial. Then they will call their witnesses who provide their evidence and can be cross-examined. The moving party may then present evidence in reply to the responding party.

Finally, both parties, beginning with the moving party, may provide their closing statements. The moving party is given the opportunity for a brief rebuttal address after the responding party’s closing statement.

How do I make an offer to settle?

Settlement discussions may take place at any time and in any format. Your offer should be specific and detail everything you need to fully and finally settle the case. A formal offer to settle in Form 49A has specific cost consequences at trial. If you serve the other party with a Form 49A at least seven days before the proceeding, and the other party does not accept the offer, and the outcome at trial is the same as your offer or better for you, then you can obtain double costs from the date that the offer was made. Those court costs are paid to compensate you for the cost of litigation. You may withdraw an offer at any point before it is accepted by serving written notice of withdrawal of the offer to settle. If the other party accepts the offer, they can file an acceptance of the offer in Form 49C. Acceptance can be made at any time before the offer expires or is withdrawn.

 

How do I make sure that a witness will attend court?

If you want to make sure that a witness will be at trial, you can serve them with a subpoena (Form 53A). The subpoena can be used to make sure the witness attends trial and brings relevant documents in the witness’ possession. The subpoena must be served personally on the witness and attendance money must be paid at the time of service. Tariff B of The Court of Queen’s Bench Rules sets out the amount of attendance money. If the witness does not show up after being properly served with a subpoena, the trial judge can issue a warrant for the witness’ arrest.

The Court of Queen’s Bench Rules, Tariff B

http://web2.gov.mb.ca/laws/rules/qbr2e.php#tb

What is a statement of agreed facts?

Preparation of a statement of agreed facts can help narrow the issues remaining for trial. If the parties can agree on certain facts, you can submit a statement of agreed facts at the beginning of trial. If you can’t agree on certain facts, at least you have confirmation of which issues may be contentious at trial and what you may have to focus on when preparing for trial.

You can make a formal request to the other party to admit facts or documents by serving a Form 51A. The Request to Admit should be served at least 20 days before the hearing. The party who is served with the Request to Admit shall respond within 20 days by serving a Response to Request to Admit. A refusal to admit facts that are later proven at a hearing can result in court costs.

What is a book of documents?

If the parties can agree on admissible documents for the court to consider at trial, they can prepare a book of documents and file it with the court at least two weeks before trial. This can save time at trial by allowing the court to enter documents sequentially at the opening of trial rather than waiting to introduce the documents through individual witnesses during the trial.

Do I have to file anything before the pre-trial conference?

You can set down a pre-trial conference by asking for a date from the court, filing a Pre-Trial Brief (Form 70S.3), and serving the other party immediately with the Pre-Trial Brief. You must serve this Pre-Trial Brief at least 20 days before the pre-trial conference. The other side must file and serve their Pre-Trial Brief at least 10 days before the pre-trial conference. The court may also start a pre-trial conference at any time and direct the parties to file materials.

 

Are pre-trial conferences similar to case conferences?

Some judicial centres in the province have case conferences and some have pre-trial conferences. In the case management system, the case management judge will perform all pre-trial functions. When case management is not available, you will have to schedule a pre-trial before you can set a trial date. A pre-trial conference can be scheduled by a party at any time in the proceedings. A pre-trial offers the same opportunity as a case conference to discuss settlement. If a settlement can’t be reached the court will make sure that proper steps are taken to get the matter ready for trial. For both case conferences and pre-trial conferences, the judge at the conference will not be the same judge to hear a motion or the trial unless the parties agree.

Does the family evaluator provide an Affidavit for a family assessment report?

No. Also, the assessment is placed on the “B” side of the court file, which means that it is only accessible to the parties, their lawyers, and the court. It is a report done for the benefit of the court and can be considered as evidence at a motion without being filed as part of an Affidavit.

How do I challenge the evidence in an Affidavit by the other party?

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.

 

Do I have to show the other party all the documents that I list in my Affidavit of Documents?

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.

What is an Affidavit of Documents?

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. An example of one series of pleadings is a Petition or Petition for Divorce, Answer, and a Reply to Answer. The Affidavit of Documents is not filed unless it is relevant to a pending issue at motion or trial.