Procedure

If you have taken reasonable steps to try and find your spouse and can’t find your spouse and can’t find them, you may be able to apply for an order for substituted service from the court.

If an order for substituted service is granted, the court may allow you to serve the documents in some other way like publishing a notice in a newspaper, or serving the documents on a family member.

You can apply for an order for substituted service by filing a Notice of Motion (Form 70Q) and an Affidavit (Form 4D). The Affidavit should explain all the attempts that you have made to locate your spouse.

You can get all of the Court of King’s Bench Forms at this link.

In the Winnipeg, Selkirk, and Brandon areas you will file in the Court of King’s Bench (Family Division) for all family court orders (support, divorce, property division).

If you live in a rural area outside of these communities you can file in the Provincial Court if asking for custody, access to children, support, and protection orders. You must file in the Court of King’s Bench if asking for a divorce, property division, or for a court order dealing with access or restricting access to property.

There is a listing of Court of King’s Bench locations at the following link to the Manitoba Courts website: http://www.manitobacourts.mb.ca/court-of-queens-bench/location-and-contact-info/

Provincial Court locations can be found at the following link to the Manitoba Courts website: http://www.manitobacourts.mb.ca/provincial-court/locations-and-contact-info/

Court fees are set out on the Manitoba Courts website: http://www.manitobacourts.mb.ca/court-of-queens-bench/procedure-rules-and-forms/fees/

Some common fees include $160 to file a Petition for Divorce, including a Central Divorce Registry search, $150 to file a Petition, $35 to file an Answer, $150 for a Notice of Application, and $35 for a Notice of Motion.

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.

You can get an Answer Form 70J here:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=70J

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.

You can get an Answer Form 70J here:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=70J

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.

Forms can be obtained at the following link:

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

A party may apply for summary judgement to dismiss the other side’s claim or defence. A judge must consider whether a summary judgment motion;

• will allow them to make necessary findings of fact,
• will allow a judge to apply the law to those facts, and
• whether the process will be more proportionate, expeditious, and less expensive than trial, while still achieving a fair result.

To succeed on such a motion, the applicant must first prove that they have an obvious claim and that the responding party has no response to that claim. The responding party must then show that there is a genuine issue for trial. The court must consider the merits of the action and whether there is a real chance of success. The judge who hears the summary judgment motion will usually be the same judge who presides at trial or at a final hearing.

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 King’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. You can visit CanLII here: 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.

The Supreme Court of Canada has resources for self-represented litigants on their website:

https://www.scc-csc.ca/unrep-nonrep/index-eng.aspx

Department of Justice Canada has Charterpedia, which is a resource that provides legal information, relevant cases, and analysis of the sections of the Canadian Charter of Rights and Freedoms:

https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/index.html

You should file a Notice of Change of Name (Form 70AA) before you file any other document. This form should be filed in court and served on all the parties. The Registrar will then change the title of the proceedings to reflect your name change.

You can find a Notice of Change of Name (Form 70AA) here:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=70AA

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.

Next Steps:

1. If you want to make a formal offer, you can find the Offer to Settle (Form 49A) at the following link:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=49A

2. You can withdraw an offer to settle at any time before it is accepted by the other party by serving written notice of withdrawal on the party who received the offer. The notice of withdrawal of the offer to settle may be in Form 49B (Notice of Withdrawal of Offer):

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=49B

3. If the offer is accepted, the other party may indicate their acceptance by serving an Acceptance of Offer (Form 49C):

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=49C

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.

The Family Resolution Service provides a range of conflict resolution services to families going through separation or divorce. Their staff is made up of skilled counsellors. Services are offered at no cost and are provided either at the request of the court, or directly to family members. For more information, visit their website.

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.

You can find the Form 35A (Questions on Interrogatories) at the following link:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=35A

The form for Answers on Interrogatories (Form 35B) can be found here:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=35B

This may mean a financial statement (Form 70D), which is a specific form, referred to in the Court of King’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.

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

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.

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 their opening statement, the responding party can make their 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.

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’s 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.

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.

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 King’s Bench Rules (http://web2.gov.mb.ca/laws/regs/current/553.88.pdf) 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.

You can get a Subpoena (Form 53A) at the following link:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=53A

You can find a Subpoena to a Witness Outside Manitoba (Form 53C) at the following link:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=53C

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. If the other party does not respond, they may be considered to have admitted the facts or authenticity of the documents mentioned in the Request to Admit for the hearing. A refusal to admit facts that are later proven at a hearing can result in court costs.

You can find the Request to Admit (Form 51A) at:

https://web2.gov.mb.ca/laws/rules/form_2e.php?form=51A