Law Frequently Asked Questions

What do I do if default is already noted?

You must either get the consent of the other party to file your Answer, or obtain permission (leave) from the court to set aside default and file an Answer by filing a Notice of Motion and Affidavit. The court can set aside default where it is “just” to do so. The court will consider whether you had a bona fide (real, legitimate) intention to respond and an explanation for why you did not file an Answer in time. The court will also look at whether there has been undue delay or a delay that would cause harm to the other party that can’t be fixed by paying money.

What happens if I don’t file the Answer within the 20 days that I have been allowed?

You can still file your Answer any time up to when the other party notes you in default. The person who started the proceedings (petitioner) must file a Requisition (Form 4E) and ask the court to note you in default. Until they take this step and the Registrar at the court notes you in default, you are still allowed to file an Answer, even if the 20-day time period (or 40 or 60 depending upon where you live) has expired.

What other services does Family Conciliation Services offer?

Family Conciliation Services offers mediation, including comprehensive co-mediation, which is a meeting with a mediator where issues such as custody and support are discussed. They also do conciliation counselling, which is short-term counselling for families and individuals going through a divorce or separation.

Just for Teens and Caught in the Middle are support and education programs for teenagers and children that help them with their concerns in the separation process.

Brief Consultation Service is a court-referred program where staff prepare a report for the court addressing the wishes and concerns of older children between the ages of 11 and 16.

Family Conciliation Services also prepare more intensive assessment reports involving the entire family. The reports make recommendations on what is in the best interests of the children.

First Choice Service combines assessment, mediation, and settlement conferencing to try and resolve parenting and custody issues with the help of a female and male counselling team.

The Grandparent Advisor helps grandparents and other extended family members trying to resolve access issues within their families.

For more information on Family Conciliation Services you can go to the following link:

http://www.gov.mb.ca/fs/childfam/family_conciliation.html

 

Is there anything else that I have to do before getting a court hearing for custody or access?

You must attend the For the Sake of the Children course, which is run by Family Conciliation Services. The program provides information about the needs of children upon separation and helps parents understand the legal and emotional process that they are going through. You must take this course before your motion for custody or access is heard by a Judge.  At least two days before your hearing date, you must file a certificate of attendance or confirm in an affidavit that you completed the course.

You do not need to take the course if you are just changing an existing order of custody or access. You also do not need to take the course if:

– you are just filing a consent order for custody or access,

– your matter is unopposed, or

– if the other party has been noted in default.

 

What happens if the person you want to examine for discovery lives outside of Manitoba?

You will have to subpoena a witness outside of Manitoba and pay them an attendance fee. The fees are set out in The Interprovincial Subpoena Act:

http://web2.gov.mb.ca/laws/statutes/ccsm/s212e.php

What is an Examination for Discovery?

An examination for discovery is a meeting, usually held before an official examiner. You can ask the other party questions about your case. You may only examine a person once, unless you get leave (permission) from the court. You must serve the party with a Notice of Examination form to compel them to attend the discovery. The Notice of Examination can be served on the party’s lawyer, or the party, if they are acting in person. You must also serve an Affidavit of Documents, unless the parties otherwise agree. The person who files the Notice of Examination gets to examine the other party first before being examined.

What are interrogatories?

Interrogatories are written lists of questions that the other side must answer under oath, by affidavit. Interrogatories may be served on the other party in preparation for trial and can be used with or instead of an examination for discovery. If the person answering does not agree with responding to a question, he or she must state that in the response affidavit and give the reason for the objection. If the person wrongfully objects to answering questions, the court can order that he or she provide the answers. In addition, the court can make a contempt order, dismiss their action, strike an answer, or strike out their evidence.

 

What is financial disclosure?

This may mean a financial statement (Form 70D), which is a specific form, referred to in the Court of Queen’s Bench Rules. It also may refer to the requirement in certain legislation to provide additional information such as income tax information, paystubs, and letters from employers, etc.

What does short leave mean?

Short leave means that someone is asking for a matter to be heard with less notice to the other party than the Court of Queen’s Bench Rules require. The court has the authority under the Rules to extend or shorten the time periods required for court proceedings.

How can a Judge make a decision when I am not present to give my evidence?

The person asking for a without notice hearing must completely disclose all relevant facts at the hearing. This includes facts that are more beneficial for the other party and which may assist their case. The positions of both sides should be represented. If they fail to do this, the other party may ask to have the order set aside on that ground.

Do I always have to get notice of a hearing?

Not always. In some rare circumstances a party may be able to file a Notice of Motion and attend a hearing without notice to you. For example, a motion without notice may be necessary when a partner is very likely to destroy or get rid of family property. When this happens and an Order is made in your absence, the party must serve you with a new Notice of Motion that gives a date for you to appear in court and also provides details about what is being requested. They must also give you a copy of the Court Order that was granted, and affidavits filed in support of the previous Motion or the new one, and any originating documents, such as a Petition or Notice of Application.

When do I get the Order?

Once the Judge has made the Order at the Motion, it is up to the parties, and their lawyers, if they have lawyers, to draft (write up) an Order. Either party may draft the Order. The judge may also tell the parties who has to draft the Order. Once drafted, the Order is provided to the other party for consent on the format that the Order is in and what it contains. The Judge then signs the Order.

What happens at the contested Motion?

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.

 

What is a Motion Brief?

A Motion Brief must be filed before the contested Motion date. The Motion Brief 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:

– 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.

When is the Motion to expunge heard?

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.

How do I respond to a Notice of Motion to Expunge if I am served with one?

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.

What can I do if I believe that the other party has included improper information in their Affidavit?

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 Queen’s 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.

The Notice of Motion must be filed and served within 4 days of you being served with the Affidavit. You must indicate which sections of the Affidavit you are objecting to and on what grounds. You must also provide information about when you were served with the Affidavit.

What other ways can I provide evidence to the court for a motion?

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.

What kind of documents should I attach as exhibits to my Affidavit?

Documents such as paystubs, employment confirmation, school admission and transcripts, e-mails, letters, and previous orders and agreements may be relevant exhibits.

What should I put in the Affidavit?

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.

Who can witness my signature on an Affidavit?

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.

When does a divorce take effect?

A divorce takes effect 31 days after the divorce judgment is pronounced. You can order a Certificate of Divorce from the court to show that the divorce
has been granted and is finalized. A Certificate of Divorce is available for a fee from the Court of Queen’s Bench Centre where your divorce was granted.
In Winnipeg, you can order a Certificate of Divorce by calling the Court of Queen’s Bench at 204-945-0344. The fee is $20.

Is there a way to get into court quickly to get an order for custody or support?

Once you have started a proceeding by filing a Petition or Petition for Divorce you can 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 custody or 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.
Custody and access, child and spousal support, occupancy of the home and preservation of property orders, and protection and prevention orders are the types of orders that are commonly granted on an interim motion. Generally, you must attend one case conference before your contested motion can be heard.

I am asking for just a divorce and my spouse agrees. What other documents do I need to file in addition to the Petition for Divorce and marriage certificate during the divorce process?

You will also need to prepare a Requisition to note default and set an oral or affidavit hearing, an Affidavit of Petitioner’s Evidence (if proceeding that way), three copies of a Divorce Judgment, the Affidavit of Service, and two stamped, addressed envelopes, one for yourself and the other for your spouse. The court will mail out the Divorce Judgment once signed by the judge.
You can get the court forms at the following link:
You can’t file the Requisition to note default until after the time period for filing an Answer has expired. The time depends on where your spouse lives. If your spouse lives in Manitoba, your spouse has 20 days to file an Answer. You can file the Requisition setting down an oral or affidavit hearing when the court receives a Central Divorce Registry Certificate confirming that neither party has filed for divorce elsewhere in Canada. The court will apply for this Certificate for you once you file your Petition for Divorce. It can take several weeks for this Certificate to arrive.

Can I bring a friend to a case conference?

Only you, your lawyer if you have one, and the other party with their lawyer will be able to attend the case conference with the Judge. Case conferences are not open to the public. Having proceedings closed is supposed to encourage open discussions between the parties. Anything discussed at the case conference is “without prejudice”, that means it can’t be referred to at motions or at trial. Also, the case conference judge will not be the judge for future motions or trial.

What do I do if I don’t agree with something in the case conference memorandum?

If you believe that the Case Conference Memorandum does not accurately reflect what happened at the case conference, you can notify the court within 14 days of receiving the Memorandum. You may ask the court to re-open the case conference to deal with the matter in dispute. The case conference can only be re-opened to deal with an inaccuracy. The case conference can’t be re-opened because you are not satisfied with what happened at the case conference, or if you change your mind about an agreement that you entered into.

What happens at a case conference?

Case conferences are informal proceedings just between the parties, their lawyers, and the judge. You have a chance to discuss your case with the judge, get input on probable outcomes of your case, and possibly reach an agreement with the other side. It also gives the Judge a chance to monitor the progress of your case and give directions on the court proceedings. You should be careful about any agreements that you do make at a case conference. These agreements become consent orders and are enforceable at law.

The judge at the case conference will write a Case Conference Memorandum and give it to the parties after the case conference. This Memorandum sets out any agreements or directions from the case conference.

I filed a Petition but I realize that I forgot some things that I wanted to request or circumstances have changed. Is there any way to change the document now?

If the pleadings are not closed, meaning an Answer has not been filed and the time for a Reply has not expired, you can file a Requisition asking to file an amended Petition. A Requisition is a form that asks the court to do something on your file. The amendment is made on the original Petition by making the changes and underlining them. If there is not enough room to make the changes on the Petition, you will have to file a new one with the changes. This new Petition will be called an Amended Petition and will have the original filing date on it.

The Amended Petition must be served again on the other party. If the other party did not respond to the Petition the first time that it was served, you must personally serve the Petition.

If the pleadings are closed, you can only make amendments with the written consent of the parties or by asking for permission (leave) from the court.

I was served with a Petition and I don’t agree with what the other party is asking for. What do I do?

If you both live in Manitoba, you have 20 days to file an Answer and dispute what your spouse is asking for. You can indicate in the Answer what you agree with and what you are contesting. You can also ask for your own relief in an Answer. If you want to respond to a Petition and also ask for a divorce when this was not requested by the other party, you would file an Answer and Petition for Divorce. You may also need to file a Financial Statement, depending on the circumstances.