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Manitoba Regulation 553/88
Court of Queen's Bench Rules
This version consolidates the following amendments: 150/89; 25/90; 31/90; 146/90; 31/91; 155/91; 240/91; 12/92; 13/93; 14/94; 67/94; 127/94; 214/94; 98/95; 182/95; 42/96; 184/96; 185/96; 186/96; 201/96; 229/96; 26/97; 187/97; 228/97; 6/98; 160/98; 69/99; 120/99; 158/99; 159/99; 160/99; 66/2000; 50/2001; 32/2002; 121/2002; 151/2002; 204/2002; 205/2002; 43/2003; 167/2003; 104/2004; 106/2004; 120/2004; 188/2004; 207/2004; 11/2005; 12/2005; 48/2005; 92/2005; 93/2005; 120/2006; 199/2006; 67/2007; 76/2007; 13/2008; 14/2008; 87/2008; 88/2008.
Recent amendments not yet consolidated: none
PART XVII
PARTICULAR PROCEEDINGS
64 Mortgage Actions
65 Reciprocal Enforcement of United Kingdom Judgments
66 Partition Proceedings
67 Proceedings under The Infants' Estates Act
68 Proceedings for Judicial Review
69 Default Judgment Under The Hague Convention
70 Family Proceedings
71 Assessment of Lawyer's Bill
72 Appointment of Committees Passing of Accounts
73 Payment Into and Out of Court
74 Surrogate Practice Non-Contentious Proceedings
75 Surrogate Practice Contentious Proceedings
76 Small Claims Actions
77 Proceedings Under The Expropriation Act
PART XVIII
COMING INTO FORCE
78 Coming into force
TARIFF "A"
Tariff of Lawyer's Fees TARIFF "B"
Tariff of Disbursements
PART XVII
PARTICULAR PROCEEDINGS
MORTGAGE ACTIONS
64.01 In this rule, "subsequent encumbrancer" means a person who has a lien, charge or encumbrance on the mortgaged property subsequent to the mortgage in question in the action.
64.02 A mortgagee may, in an action, claim,
(a) foreclosure or a sale of the mortgaged premises;
(b) payment of the mortgage debt by any party personally liable therefor; and
(c) possession of the mortgaged premises.
PERSONS TO BE JOINED
64.03(1) All persons interested in the equity of redemption shall be named as defendants in the action subject to subrule (2).
64.03(2) The plaintiff may commence the action without naming subsequent encumbrancers as defendants where it appears expedient to do so by reason of their number or otherwise, but the plaintiff may make a motion without notice on a reference after judgment to add as defendants all subsequent encumbrancers who were not originally made parties.
64.03(3) Where after judgment it appears that persons are interested in the equity of redemption besides those who are already made parties, such persons may be made parties in the master's office on such terms as may be just.
POWERS OF COURT
64.04(1) The court may, on motion either before or after judgment, direct a sale instead of foreclosure without previously determining the priorities of encumbrancers or giving the usual or any time to redeem.
64.04(2) If the judgment directs a sale on default in payment, then, on default being made and an order for sale being obtained, the property shall be sold, with the approval of the master, and the purchaser shall pay his purchase money into court to the credit of the action.
64.04(3) The purchase money, when so paid, shall be applied and paid out of court in payment of what has been found due to the plaintiff and the other encumbrancers, if any, according to their priorities, together with subsequent interest and subsequent costs.
64.04(4) In a redemption action where the plaintiff is declared foreclosed, directions may be given either by the final order foreclosing the plaintiff, or by subsequent order, that all necessary enquiries be made, accounts taken, and proceedings had for redemption or foreclosure, or redemption or sale, as against any subsequent encumbrancers, or for the adjustment of the relative rights and liabilities of the original defendants as among themselves; and such order shall have the same force and effect as a judgment obtained by the original defendant.
64.04(5) On default in payment being made according to the judgment or report in a foreclosure or redemption action, a final order of foreclosure may be granted, on motion without notice, against the party making a default.
Default in payment - redemption action
64.04(6) In a redemption action, on default in payment being made according to the report, the defendant shall be entitled, on motion without notice, to a final order of foreclosure against the plaintiff, or to an order dismissing the action with costs to be paid by the plaintiff.
64.05(1) In mortgage actions the period allowed for redemption in the first place shall be six months; and, when it becomes necessary to fix a date for redemption after the lapse of the first period, the further time allowed shall be one month.
64.05(2) There shall be one day appointed for redemption by all parties and no appointment of a new day shall be made unless the court so orders for special reasons.
WHERE DEFENDANT DESIRES A SALE
64.06(1) Where a defendant in an action for foreclosure desires a sale, but does not otherwise desire to defend the action, the defendant shall, within the time allowed for filing a statement of defence, file and serve a memorandum, entitled in the action, to the following effect: "I desire a sale of the mortgaged premises instead of foreclosure," and shall pay into court the sum of $250. to meet the expenses of the sale, and thereupon judgment shall be entered for sale.
64.06(2) A person made a party in the master's office and desiring a sale shall, before the master's report is settled, make a similar deposit and obtain an order, which may be issued on requisition, directing sale instead of foreclosure; and thereupon all subsequent proceedings shall be had and taken as if the judgment had been in the first instance for sale.
Plaintiff elects defendant conduct sale
64.06(3) If the plaintiff prefers that the sale be conducted by any defendant desiring the sale, the plaintiff may so elect, and shall thereupon notify the defendant of such election, and the defendant making the deposit shall be entitled to a return thereof (Form 64A).
64.06(4) In other cases the master shall deal with the deposit in making his or her report.
PROCEDURE ON MORTGAGE REFERENCES GENERALLY
64.07(1) Rule 55 (Procedure on a Reference) applies to a reference in an action for foreclosure, sale or redemption, except as provided in this rule.
64.07(2) The reference shall be to a master.
64.07(3) On a reference in an action for foreclosure, sale or redemption, the plaintiff shall file sufficient evidence to enable the master to determine who appears to have a lien, charge or encumbrance on the mortgaged property.
64.07(4) The master shall direct all such persons as appear to have any lien, charge, or encumbrance on the property, subsequent to the plaintiff's mortgage, to be made parties to the action, and to be served with a notice in Form 64B.
Require service of appointment and notice
64.07(5) The master, before proceeding to hear and determine, shall require an appointment (Form 64C) and a notice (Form 64D) to be served at least five days before the hearing on all persons made parties before the judgment appearing to have any lien, charge, or encumbrance on the land, subsequent to the plaintiff's mortgage.
Non-attendance treated as disclaimer
64.07(6) Where a person who has been duly served with a notice under subrule (4), or with an appointment under subrule (5), neglects to attend at the time appointed, the master shall treat such non-attendance as a disclaimer by the person so making default; and any claim of such person shall be thereby foreclosed, unless otherwise ordered on application duly made for that purpose.
Take account of amounts due, assess costs, settle priorities
64.07(7) When all parties have been duly served, the master shall take an account of what is due to the plaintiff, and to the other encumbrancers, if any, for principal money and interest, and assess their costs and settle their priorities, and appoint a time and place, or times and places, for payment according to the practice of the court.
Mortgage account on oath of assignee
64.07(8) On any proceeding for foreclosure by, or for redemption against, an assignee of a mortgagee, the statement of the mortgage account, under the oath of such assignee, shall be sufficient prima facie evidence of the state of such account.
64.07(9) On a reference under a judgment for redemption, the master shall take an account of what is due to the defendant for principal money, interest, and costs, and shall appoint a time and place for payment.
64.07(10) The master shall set out in the report on the reference,
(a) the names of,
(i) all persons who were parties on the reference,
(ii) all subsequent encumbrancers who were served with notice of the reference, and
(iii) all subsequent encumbrancers who failed to attend on the reference and prove their claim;
(b) the amount and priority of the claims of the parties who attended and proved their claims on the reference, and the report shall show those parties as the only encumbrancers of the property; and
(c) the date on which the report was settled.
64.07(11) The report shall be served on all parties who attended on the reference.
WHERE JUDGMENT FOR REDEMPTION OR FORECLOSURE, ETC.
64.08 Where the judgment is for redemption or foreclosure, or redemption or sale, such proceedings shall be thereupon had, and with the same effect, as in an action for foreclosure or sale, and in such case the last encumbrancer shall be treated as the owner of the equity of redemption.
CONVEYANCE BY MORTGAGEE
Conveyance to person matching payment
64.09(1) Subject to the provisions of any statute, on payment of the amount found due, the mortgagee shall, unless the judgment otherwise directs, assign and convey the mortgaged property to the party making the payment, or that party's appointee, free and clear of all encumbrances done by the mortgagee, and shall deliver up all deeds and writings in the mortgagee's custody or power relating thereto.
Order for payment of deficiency
64.09(2) If the purchase money is not sufficient to pay what has been found due to the mortgagee (where the mortgagor or person liable to pay the debt is a defendant and the amount due has been claimed) the mortgagee shall be entitled, on motion without notice, to an order for the payment of the deficiency.
CHANGE IN ACCOUNT
64.10(1) Where the state of account as ascertained by an order or a report is changed before the day appointed for payment, the mortgagee may, before the day appointed, give notice of the change of account to the party by whom the money is payable, with particulars of the change of account and of the sum to be paid.
Final order after change of account
64.10(2) Where notice of change of account has been given, and the sum therein mentioned appears proper to be allowed and paid, a final order may be granted without further notice, or the judge hearing the application for the final order may require notice to be given and appoint a new day.
Application to determine amount after a change
64.10(3) Any party given notice of change of account who is dissatisfied, may apply to have the amount to be paid determined and a new day appointed.
Appointment of new payment day
64.10(4) Where the state of account has been changed before the day appointed for payment and no notice of change of account has been given, and the amount to be paid has been reduced, a new day shall be appointed for payment; but, where the amount payable has been increased, a final order may be granted without further notice and without the appointment of a new day.
Change in account after payment day
64.10(5) Where the state of the account has been changed after the day appointed for payment, it shall not be necessary to appoint a new day unless the judge hearing the application for the final order so directs.
RECIPROCAL ENFORCEMENT OF UNITED KINGDOM JUDGMENTS
65.01 In this Rule,
"Act" means The Canada-United Kingdom Judgments Enforcement Act; (« Loi »)
"Convention" means the convention appearing as a schedule to the Act; (« Convention »)
"judgment" means a judgment to which the Convention applies. (« jugement »)
APPLICATION FOR REGISTRATION OF JUDGMENT
65.02(1) Notice of an application to the court for registration of a judgment granted by a court in the United Kingdom shall be in Form 65A.
65.02(2) The application shall be supported by an affidavit that confirms the statements contained in the notice of application and sets out any additional facts necessary to establish that the applicant is entitled to register and enforce the judgment.
65.02(3) The judgment and the original proof of service of the originating process of the United Kingdom court, or certified copies of them, shall accompany the affidavit as exhibits.
65.02(4) The affidavit may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
65.03 A judgment registered under the Act may be enforced in the same manner as an order of the court.
PARTITION PROCEEDINGS
HOW COMMENCED
66.01(1) A proceeding for partition or sale of land under The Law of Property Act may be commenced by notice of application by any person who is entitled to compel partition.
66.01(2) A proceeding for partition or sale by or on behalf of a minor shall be on notice to the public trustee.
66.01(3) A party who applies for partition or sale of land shall serve a copy of the document by which the proceedings are commenced on every person with a registered interest in the land.
M.R. 12/92; 43/2003
66.02 A judgment for partition or sale shall be in Form 66A.
66.03 All money realized in a partition proceeding from a sale of land shall forthwith be paid into court, and no money shall be distributed or paid out except by order of a judge.
PROCEEDINGS UNDER THE INFANTS' ESTATES ACT
HOW COMMENCED
Application on notice to Public Trustee
67.01 A proceeding under The Infants' Estates Act shall be commenced by notice of application on notice to the Public Trustee.
APPLICATION FOR GUARDIANSHIP OF THE ESTATE OF A MINOR
67.02(1) An application for an order appointing a guardian for the estate of a minor shall be supported by an affidavit in Form 67A.
67.02(2) The court may inquire in a summary way into the value of the minor's property.
67.02(3) A person intending to oppose an application for an order of guardianship may file a caveat against the application, in which case rule 75.02 (Caveats Against Probate) applies with necessary changes.
67.02(4) The bond required to be given by the guardian pursuant to section 6 of The Infants' Estates Act shall be in Form 67B, and any affidavit of justification by sureties shall be in Form 67C.
67.02(5) An order of guardianship shall be in Form 67D.
67.02(6) An order of guardianship may be revoked on application and when the court orders revocation the registrar shall endorse the order of guardianship as follows:
"Revoked by Judge's Order made the day of , 20 ."
APPROVAL OF THE DISPOSITION OF PROPERTY OF A MINOR
Disposition of minor's property
67.03(1) An application for approval of the sale, mortgage, lease or other disposition of property of a minor shall be supported by an affidavit setting out
(a) the nature and amount of all the property to which the minor is entitled;
(b) the nature and value of the property to be disposed of;
(c) the annual income the property yields; and
(d) the facts relied on to establish the need for the proposed disposition.
67.03(2) If a disposition of property is sought to fund an allowance for a special purpose, such as the support or education of the minor, the affidavit shall state.
(a) the amount required;
(b) the facts relied on to establish the need for the allowance; and
(c) the necessity for resorting to the property for the allowance.
CONSENT OF MINOR
67.04(1) The following orders shall not be made unless the minor's consent has been filed, together with a lawyer's affidavit stating the lawyer's belief that the minor understood the consent when the lawyer read and explained it:
(a) an order appointing a guardian of the estate of a minor who is at least 12 years old;
(b) an order approving the sale, mortgage, lease or other disposition of property of a minor who is at least 16 years old.
Judge may dispense with consent
67.04(2) A judge may dispense with the necessity of filing the minor's consent and lawyer's affidavit.
67.04(3) The judge may examine the minor with respect to his or her consent.
67.04(4) Where the minor lives outside Manitoba, the judge may direct an inquiry to be made concerning the minor's consent in such manner as is just.
M.R. 127/94; 120/2004
PROCEEDINGS FOR JUDICIAL REVIEW
68.01 A Judge on application may grant an order of mandamus, prohibition, certiorari or quo warranto.
68.02 The court may require notice to be given to any person not before the court who, in the opinion of the court, may be affected by the order sought.
DEFAULT JUDGMENT UNDER THE HAGUE CONVENTION
DEFAULT JUDGMENT
69.01(1) Where an originating process has been transmitted abroad for the purpose of service under the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and no certificate of service or delivery has been received, notwithstanding the provisions of the first paragraph of Article 15 of such Convention, the court may give judgment if the conditions set out in the second paragraph of Article 15 of the Convention are fulfilled.
69.01(2) Notwithstanding subrule (1), the court may order, in case of urgency, any provisional or protective measures.
Relief against expiration of time for appeal
69.01(3) Where an originating process has been transmitted abroad for the purpose of service under the provisions of such Convention and a judgment has been entered against a defendant who has not defended, if the conditions set out in the first paragraph of Article 16 of the Convention have been fulfilled the court, on motion, may relieve the defendant from the effect of the expiration of the time for appeal from the judgment, but the motion for such relief will not be entertained if it is filed after the expiration of one year following the date of judgment.
69.01(4) Subrule (1) shall not apply to judgments concerning the status or capacity of persons.
TABLE OF CONTENTS
70.01 Definitions
70.01.1 Hague Convention — international child abduction
70.02 Application of rules
70.03 Commencement of family proceedings
70.04 Certificate of marriage
70.05 Financial information required with originating process
70.06 Service of petition
70.07 Answer
70.08 Reply to answer
70.09 Provision of financial information and sanctions
70.10 Consolidation of proceedings
70.11 Default in filing answer
70.12 Uncontested petitions
70.13 Uncontested petitions — affidavit evidence
70.14 Uncontested petitions — documents
70.15 Certificate of divorce
70.16 Mediation
70.17 Family evaluator
70.18 Interim proceedings
70.19 Interim relief order made without notice
70.20 Affidavit evidence on motions and applications
70.21 Motions to expunge affidavit material
70.22 Motion briefs
70.23 Application briefs and appeal briefs
70.24 Case management — Winnipeg Centre
70.24.1 Parent information program
70.25 Family Property Act references
70.26 Pre-trial conferences
70.27 Pleadings
70.28 Trial record
70.29 Use at trial of cross-examination on affidavit
70.30 Affidavit evidence at trial
70.31 Orders — general provisions
70.32 Repealed
70.33 Preparing, signing and serving orders
70.34 Changes to orders
70.35 Satisfaction of order
70.36 Appeal
70.37 Variation of final orders
70.38 Provisional order for support variations under the Divorce Act (Canada)
70.39 Provisional order under the Divorce Act (Canada) returned for further evidence
70.40 Provisional order under the Divorce Act (Canada) from other court received for confirmation
70.41 Attendance by telephone or other means
70.42 Interrogatories
70.43 Enforcement proceedings under The Family Maintenance Act
70.44 Notice of change of name
70.45 Notice by requisition re international child abduction
Forms
Rule 70 was reorganized when it was replaced by M.R. 151/2002. Before that, it had been amended by the following regulations: 150/89; 25/90; 31/90; 146/90; 31/91; 240/91; 12/92; 13/93; 14/94; 127/94; 214/94; 98/95; 201/96; 228/97.
RULE 70
FAMILY PROCEEDINGS
70.01 In this Rule,
"case conference judge" means the judge assigned to a proceeding for the purpose of case management; (« juge chargé de la conférence de cause »)
"family proceeding" or "proceeding" means a family proceeding within the meaning of section 41 of The Court of Queen's Bench Act; (« instance » ou « instance en matière familiale »)
"guidelines" means the Child Support Guidelines Regulation, Manitoba Regulation 58/98, except that where the application is under the Divorce Act (Canada) and only one of the spouses or former spouses resides in Manitoba, "guidelines" means the Federal Child Support Guidelines, SOR/97-175; (« lignes directrices »)
"hearing date" means the date on which a contested matter, other than a trial, is scheduled to be heard; (« date d'audience »)
"pleadings" means the documents referred to in rule 70.27; (« acte de procédure »)
"recalculated child support order" means a child support order that has been recalculated under section 24.10 of the Child Support Guidelines Regulation, Manitoba Regulation 58/98; (« ordonnance de fixation d'un nouveau montant de pension alimentaire pour enfants »)
"recalculation order" means an order under subsection 24.3(1) of the Child Support Guidelines Regulation, Manitoba Regulation 58/98, that child support be recalculated by the recalculation service at regular intervals; (« ordonnance de fixation d'un nouveau montant »)
"recalculation service" has the same meaning as in section 24.1 of the Child Support Guidelines Regulation, Manitoba Regulation 58/98; (« service chargé de fixer le nouveau montant »)
"standard clause" means wording approved by and available from the court that is required to be used in an order referred to in subrule 70.31(11); (« clause type »)
"support determination officer" means a person appointed under section 24.2 of the Child Support Guidelines Regulation, Manitoba Regulation 58/98; (« agent de détermination de la pension alimentaire »)
"table" means a child support table set out in Schedule I of the Federal Child Support Guidelines, SOR/97-175, which Schedule is adopted in Schedule I of the Child Support Guidelines Regulation, Manitoba Regulation 58/98. (« table »)
Hague Convention — international child abduction
70.01.1 In this Rule, a reference to "the Hague Convention on the Civil Aspects of International Child Abduction" means the Convention on the Civil Aspects of International Child Abduction as set out in the Schedule to The Child Custody Enforcement Act.
70.02 The Rules apply to family proceedings, except where this Rule provides otherwise, expressly or by implication.
COMMENCEMENT OF FAMILY PROCEEDINGS
Divorce under the Divorce Act (Canada)
70.03(1) A family proceeding in which the petitioner claims a divorce under the Divorce Act (Canada), alone or in conjunction with other relief, shall be commenced by filing a petition for divorce in Form 70A.
Relief under The Family Maintenance Act, etc.
70.03(2) A family proceeding in which a divorce is not claimed and in which the petitioner claims relief under
(a) The Family Maintenance Act;
(b) The Family Property Act; or
(c) The Divorce and Matrimonial Causes Act, (1857);
alone or in conjunction with other relief, shall be commenced by filing a petition in Form 70B.
70.03(3) A proceeding in which guardianship of a child is sought shall be commenced by filing a notice of application for guardianship in Form 70F and the title shall show an applicant for guardianship as the guardianship applicant.
Guardianship application with child support application
70.03(4) If guardianship of a child is sought, as well as child support for the child, the application for child support shall be filed in the guardianship proceeding.
Guardianship where child already subject of child protection proceedings
70.03(5) If guardianship is sought of a child who is the subject of an existing child protection proceeding or an existing child protection order
(a) the application for guardianship shall be filed in the child protection proceeding in accordance with subrule (6); and
(b) the title of proceeding shall be amended to name all parties.
When leave required for guardianship application
70.03(6) An application for guardianship under subrule (5) may be filed in the child protection proceeding
(a) without leave of the court at any time before setting a trial date; or
(b) with leave of the court after setting a trial date.
70.03(7) A family proceeding to vary, rescind or suspend a final order shall be commenced by filing, in accordance with rule 70.37,
(a) a notice of motion to vary (Form 70H); or
(b) a notice of application to vary (Form 70G).
Application re Hague Abduction Convention
70.03(7.1) A family proceeding in which the return of a child is sought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction shall be commenced by filing a notice of application (Form 70E).
70.03(8) A family proceeding, other than a proceeding under subrule (1), (2), (3), (4), (5) or (7), shall be commenced by filing
(a) a notice of application (Form 70E) with an affidavit in support; or
(b) where it is not practical to proceed on affidavit evidence, a statement of claim.
70.03(9) Where a notice of application (Form 70E), a notice of motion to vary (Form 70H), a notice of application to vary (Form 70G) or a notice of application for guardianship (Form 70F) contains an application for child support, the notice shall state whether the claim is for
(a) an amount of support in the applicable table;
(b) an amount for special or extraordinary expenses; or
(c) another amount under the guidelines.
70.04 The certificate of marriage shall be filed at the time a petition for divorce is filed under subrule 70.03(1) or 70.07(2) unless the petitioner or the petitioner's lawyer states in writing
(a) that the certificate is not readily available; and
(b) that he or she undertakes to file the certificate.
FINANCIAL INFORMATION REQUIRED WITH ORIGINATING PROCESS
Where Form 70D (financial statement) required
70.05(1) Subject to subrules (2) to (5), where an issue relating to support or division of property is raised in the originating process, the petitioner shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement) with the originating process.
Where Form 70D not required
70.05(2) Where an application for child support is made in the originating process, the petitioner does not need to file and serve Form 70D (financial statement) if
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the originating process; and
(c) the application is made by a person whose income information is not necessary to determine the amount of the order.
Where only Part 1 of Form 70D required
70.05(3) Where an application for child support is made in the originating process, and
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the originating process; and
(c) the application is made by a person whose income information is necessary to determine the amount of the order;
the petitioner does not need to file and serve Parts 2, 3 and 4 of Form 70D (financial statement) but shall file and serve Part 1.
Where only Parts 3 and 4 of Form 70D required
70.05(4) Where
(a) an issue relating to division of property is raised in the originating process; and
(b) there are no issues raised relating to support;
the petitioner does not need to file and serve Parts 1 and 2 of Form 70D (financial statement) with the originating process but shall file and serve Parts 3 and 4.
Where Federal Child Support Guidelines apply
70.05(5) Where an application is made in the originating process for child support under the Divorce Act (Canada), and
(a) the Federal Child Support Guidelines apply; and
(b) income information of the petitioner is necessary to determine the amount of the order;
the petitioner shall file and serve, in addition to the parts of Form 70D (financial statement) required by this rule,
(c) the documents required under section 21 of the Federal Child Support Guidelines attached as exhibits to the petitioner's affidavit; or
(d) an explanation in the petitioner's affidavit as to why the documents referred to in clause (c) are not attached.
SERVICE OF PETITION
70.06(1) A petition shall be served on the respondent personally or in accordance with subrules 16.03(2) and (3) (acceptance of service by lawyer), unless the court makes an order under rule 16.04 for substituted service or dispensing with service.
Petitioner not to effect personal service
70.06(2) A petition that is served personally shall be served by someone other than the petitioner.
70.06(3) A person who effects personal service of a petition shall
(a) ask the respondent to complete and sign the acknowledgment of service (Form 70C) on the back of, or attached to, the petition; and
(b) either
(i) sign as witness to the respondent's signature, or
(ii) record the fact that the respondent declined to sign the acknowledgment of service,
as the case may be.
70.06(4) An affidavit or certificate of service of a petition shall be in Form 70I, and
(a) where personal service is effected, shall state fully the means of knowledge of the deponent as to the identity of the person served; and
(b) where a signed acknowledgment of service (Form 70C) is obtained from the person served, the original signed acknowledgment of service shall be attached to the affidavit.
Service requirements in particular proceedings
70.06(5) In addition to meeting other requirements in these Rules relating to service of documents, the following additional service requirements apply:
(a) a party who is seeking a declaratory order that a man is or is not in law the father of a child, shall serve on the Director of Child and Family Services appointed under The Child and Family Services Act a copy of the document by which the relief is sought;
(b) a party who is seeking a change in the amount of a support order or relief that may result in cancellation of arrears of support or suspension of enforcement of support, shall serve on the Director of Employment and Income Assistance, appointed under The Employment and Income Assistance Act, a copy of the document by which the relief is sought;
(c) a party who is seeking a suspension of enforcement of support or arrears where the responding party resides outside Manitoba, shall serve on the designated officer under Part VI of The Family Maintenance Act a copy of the document by which relief is sought, whether the application is made with or without notice to the responding party;
(d) a party who is seeking partition or sale of land under The Law of Property Act, shall, comply with subrule 66.01(3);
(e) a person making an application directly to court for the return of a child as contemplated by article 29 of the Hague Convention on the Civil Aspects of International Child Abduction shall serve the application on the Family Law Branch of the Department of Justice, the Central Authority under the Convention;
(f) where notice has been given to the court respecting a request for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction, either by
(i) a requisition referred to in subrule 70.45(1), or
(ii) an application referred to in subrule 70.03(7.1),
any party seeking custody or private guardianship of, or access to, the child must serve all documents filed after the requisition or application is filed on the Family Law Branch of the Department of Justice, the Central Authority under the Convention, until the application for the return of the child has been finally determined by the court.
ANSWER
70.07(1) In this rule,
"answer" includes an answer and petition for divorce; and (« réponse »)
"respondent" includes a person who files an answer or an answer and petition for divorce. (« intimé »)
70.07(2) A respondent wishing to oppose a petition or seek relief shall file and serve an answer in Form 70J, but if the relief being sought by the respondent includes a divorce, Form 70J shall be titled "answer and petition for divorce".
Time for filing and serving answer
70.07(3) An answer shall be filed and served within the period prescribed under Rule 18 for filing and serving a statement of defence.
Financial information required
70.07(4) Subject to subrules (5) to (8), where an issue related to support or division of property is raised in the originating process or the answer, the respondent shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement)
(a) with the answer; or
(b) if the respondent does not file an answer, within the period prescribed under Rule 18 for filing and serving a statement of defence.
Where Form 70D not required
70.07(5) Where an application for child support is made in the answer, the respondent does not need to file and serve Form 70D (financial statement) if
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the originating process or the answer; and
(c) the income information of the respondent is not necessary to determine the amount of the order.
Where only Part 1 of Form 70D required
70.07(6) Where an application for child support is made in the originating process or the answer, and
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the answer or the originating process; and
(c) the income information of the respondent is necessary to determine the amount of the order;
the respondent does not need to file and serve Part 2, 3 or 4 of Form 70D (financial statement) with the answer but shall file and serve Part 1 with the answer, or, if an answer is not filed, within the period prescribed under Rule 18 for filing and serving a statement of defence.
Where only Parts 3 and 4 of Form 70D required
70.07(7) Where
(a) an issue related to division of property is raised in the originating process or the answer; and
(b) there are no issues raised relating to support;
the respondent does not need to file and serve Part 1 or 2 of Form 70D (financial statement) but shall file and serve Parts 3 and 4 with the answer, or if an answer is not filed, within the period prescribed under Rule 18 for filing and serving a statement of defence.
Where Federal Child Support Guidelines apply
70.07(8) Where an application for child support under the Divorce Act (Canada) is made in the originating process or the answer, and
(a) the Federal Child Support Guidelines apply; and
(b) the income information of the respondent is necessary to determine the amount of the order;
the respondent shall file and serve, in addition to the parts of Form 70D (financial statement) required by subrules (4) to (7),
(c) the documents required under section 21 of the Federal Child Support Guidelines attached as exhibits to the respondent's affidavit; or
(d) an explanation in the respondent's affidavit as to why the documents referred to in clause (c) are not attached.
REPLY TO ANSWER
Time for filing and serving reply
70.08(1) A reply to an answer or to an answer and petition for divorce shall be
(a) prepared in accordance with Form 70K; and
(b) filed and served within 20 days after the answer has been served.
Financial information required
70.08(2) Where an issue related to support or division of property is raised in the answer, the person that filed the originating process shall file and serve any financial information required by subrule (3) that the person has not already filed and served, within 20 days after the answer has been served, whether or not a reply is filed and served.
70.08(3) Rule 70.07 applies with necessary changes to the financial information the person is required to provide under subrule (2).
PROVISION OF FINANCIAL INFORMATION AND SANCTIONS
Financial information if urgent situation
70.09(1) Where relief is urgently required, a party may commence a proceeding or file an answer or reply without complying with rule 70.05, 70.07 or 70.08 as the case may be, on filing an undertaking to file and serve the required financial information within 20 days of commencing a proceeding or filing an answer or reply.
Order requiring financial information to be filed
70.09(2) Where a party fails to file and serve the required financial information within the time prescribed, the court may, on motion without notice, make an order requiring that the financial information be filed and served within a specified time.
Particulars of financial information
70.09(3) Where the financial information provided by a party lacks particularity, the other party may demand particulars. If the particulars are not supplied within seven days, the court may, on such terms as are just,
(a) order that particulars be filed and served; or
(b) strike out the party's financial statement or the affidavit attaching documents required under section 21 of the Federal Child Support Guidelines and order that new documents be filed and served within a specified time.
Sanctions for failure to comply
70.09(4) Where a party fails to comply with an order to file and serve a financial statement, a new financial statement, particulars or other financial information, the court may make
(a) an order dismissing the party's action or striking out the answer;
(b) a contempt order against the party; and
(c) where the guidelines apply, any order under the guidelines that the court considers appropriate.
70.10 Where more than one family proceeding between the same parties has been commenced, all the proceedings shall be consolidated by the registrar,
(a) where a divorce has been claimed, under the title of proceeding and file number of the proceeding in which the divorce is claimed; and
(b) where a divorce has not been claimed, under the title of proceeding and file number of the proceeding first commenced.
DEFAULT IN FILING ANSWER
Default to be noted by registrar
70.11(1) Default in filing an answer within the time prescribed by this Rule shall be noted by the registrar upon proof of service of the petition.
70.11(2) A respondent may not file an answer after default has been noted, except with the consent of the other party or with leave of the court.
70.11(3) A respondent may file an answer at any time before default is noted.
70.12 Where a respondent
(a) is noted in default under rule 70.11; or
(b) files a notice withdrawing opposition (Form 70L);
the petition may be set down by filing a requisition
(c) for an oral hearing; or
(d) for a determination by a judge solely on affidavit evidence, without an oral hearing and without an appearance by the parties or their lawyer.
UNCONTESTED PETITIONS — AFFIDAVIT EVIDENCE
Affidavit of petitioner's evidence (Form 70M)
70.13(1) For purposes of a determination under clause 70.12(d), the petitioner shall file an affidavit of petitioner's evidence (Form 70M), adapted as required in the circumstances.
70.13(2) An affidavit filed as evidence under this rule shall contain only statements of facts that are within the personal knowledge of the deponent, except that in respect of the financial circumstances of the respondent, the affidavit may contain statements of facts that are not within the personal knowledge of the deponent if the facts are evidenced by documentation attached as an exhibit to the affidavit or are admitted by the respondent to the deponent.
UNCONTESTED PETITIONS — DOCUMENTS
70.14(1) Where a petition is set down under rule 70.12, the petitioner shall provide the court with three copies of an order (Form 70N) but if protective relief or a recalculation order is sought, four copies of an order are required.
Petition for divorce — documents
70.14(2) Where a petition for divorce is set down under rule 70.12, the petitioner shall, subject to subrule (3) and unless otherwise ordered by the court, provide the court with
(a) three copies of a divorce judgment (Form 70O);
(b) a stamped envelope addressed to each party at his or her last known address or the address given by the party when served with the petition; and
(c) three copies of an order (Form 70N) where corollary relief under the Divorce Act (Canada) or relief under another Act is sought, but if protective relief or a recalculation order is sought, four copies of an order.
70.14(3) Repealed.
70.15 A certificate of divorce issued under subsection 12(7) of the Divorce Act (Canada) shall be in Form 70P.
MEDIATION
70.16(1) Where an issue in a family proceeding has been referred to a mediator by the court pursuant to subsection 47(1) of The Court of Queen's Bench Act, the mediator,
(a) shall attempt to meet with the parties and, if they agree, attempt to mediate their dispute; and
(b) may meet with children, lawyers and such other persons as the mediator deems necessary, in an attempt to mediate the dispute.
70.16(2) Upon the conclusion of mediation, the mediator shall notify the parties, or their lawyers, in writing of the terms of any settlement that has been tentatively reached, and shall advise the court that mediation has been concluded.
70.17 Where pursuant to subsection 49(1) of The Court of Queen's Bench Act the court orders that a family evaluator be appointed, the family evaluator shall prepare and deliver to the court, in accordance with subsection 49(2) of the Act, a report which shall, unless directed otherwise, include
(a) information the evaluator considers relevant to the matters in dispute;
(b) an opinion as to the suitability of each party to have custody or access;
(c) the wishes of children, if volunteered by them;
(d) an opinion as to what plan of custody and access would be in the best interests of the children, whether it corresponds with the wishes of the children or not;
(e) the basis of the opinion; and
(f) a report upon any particular matter referred by a judge or master.
INTERIM PROCEEDINGS
70.18 An interim proceeding shall be commenced by a notice of motion (Form 70Q)
(a) which states the precise relief sought, and, where there is a claim for child support, states whether the claim is for an amount of support in the applicable table, an amount for special or extraordinary expenses, or another amount under the guidelines; and
(b) which is supported by an affidavit which clearly and concisely sets forth the facts upon which the moving party relies, and which shall not contain argument.
INTERIM RELIEF ORDER MADE WITHOUT NOTICE
70.19 A party who has obtained an interim order for relief without notice (Form 70N), except an order made under subsection 19(9) or 19(9.1) of the Divorce Act (Canada), shall immediately serve on the other party,
(a) a new notice of motion specifying
(i) the date on which the other party may appear, and
(ii) the relief that will be sought at that time;
(b) a copy of the order;
(c) copies of all affidavits filed in support of the application for the order;
(d) any further affidavits intended to be relied upon on the hearing of the new motion; and
(e) the originating petition and notice of motion, if not previously served.
AFFIDAVIT EVIDENCE ON MOTIONS AND APPLICATIONS
Subrules 39.01(2) and (3) not applicable
70.20(1) Subrules 39.01(2) and (3) do not apply to a motion or application in a family proceeding.
Time for filing and serving affidavits in support
70.20(2) Where a motion or application in a family proceeding is made on notice, the affidavits on which the motion or application is founded shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least 14 days before the hearing date or four days before the date the matter is first returnable before the court; and
(b) served within the time for service of the motion or application under these rules.
Time for filing and serving affidavits in opposition
70.20(3) All affidavits to be used at the hearing in opposition to a motion or application shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least seven days before the hearing date; and
(b) served within the time specified in clause (a).
Time for filing and serving affidavits in reply
70.20(4) All affidavits in reply to be used at the hearing shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least four days before the hearing date; and
(b) served within the time specified in clause (a).
70.20(5) A party who wishes to file an affidavit and has not done so within the time allowed shall
(a) mark the first page of the affidavit, in prominent type, "Late"; and
(b) file the affidavit, together with a motion requesting leave for the late filing, returnable before the presiding judge on the hearing date.
70.20(6) Where a hearing date for a motion has been set, no other motion shall be heard on that hearing date without
(a) the consent of the other party; or
(b) obtaining leave of the court.
Delayed motions deemed abandoned
70.20(7) Where a motion has been filed and a hearing date has not been set within nine months of the date of filing, the motion is deemed to be abandoned, unless leave is granted to extend the time for setting a hearing date.
70.20(8) A party to a motion or application is entitled to file one affidavit of the party in support of or in opposition to the motion or application.
70.20(9) A party may also file one affidavit from each person who is not a party, without leave, if that person has evidence relevant to the proceeding.
Affidavit responding to new matters
70.20(10) In addition, the party who commenced the motion or application is entitled to file a second affidavit of the party to respond to new matters contained in an affidavit that was filed by a responding party.
Leave required to file additional affidavits
70.20(11) Other than the affidavits referred to in subrule (8), (9) or (10), a party to a motion or application is not entitled to file any other affidavits without obtaining leave from a master or a case conference judge or the presiding judge at the hearing.
MOTIONS TO EXPUNGE AFFIDAVIT MATERIAL
70.21(1) A master may, on motion, expunge all or part of an affidavit to be used on a motion or application in a family proceeding, on the ground that the affidavit or part is scandalous, frivolous, vexatious, irrelevant, repetitive or otherwise not in compliance with the rules.
70.21(2) If a case conference is required by these rules, no motion for expungement may be heard until the first case conference has been held.
70.21(3) A party making a motion to expunge under subrule (1) shall
(a) identify in the motion any specific paragraph or portion of a paragraph to be expunged and briefly state his or her reasons; and
(b) file and serve the motion within four days after being served with the affidavit.
70.21(4) Within three days of the motion being served, the responding party may file and serve a response briefly stating the reasons for opposing the motion to expunge.
70.21(5) Oral argument by a party to the motion is not permitted unless the master hearing the motion so directs.
MOTION BRIEFS
70.22(1) Rule 37.08 (motion briefs) does not apply to a family proceeding.
Exception: recalculation proceedings
70.22(1.1) A motion brief is not required
(a) in a proceeding in which the only relief sought is a recalculation order; or
(b) in a proceeding by the support determination officer seeking an order of financial disclosure, enforcement of such an order or an order that income be imputed to a party.
70.22(2) A moving party shall file and serve a motion brief (Form 70R)
(a) at least four days before the hearing date; or
(b) if the hearing date is less than seven days after the date when it was obtained, before 2:00 p.m. on a day that is at least two days before the hearing date.
Responding party's motion brief
70.22(3) A responding party shall file and serve a motion brief (Form 70R)
(a) at least two days before the hearing date; or
(b) if the hearing date is less than seven days after the date when it was obtained, before 2:00 p.m. on a day that is at least one day before the hearing date.
70.22(4) The motion brief of each party shall
(a) set out the matters in issue;
(b) include a list of documents to be referred to by either party, including the date of filing and other identifying details;
(c) set out the party's position on the issues;
(d) include relevant cases and statutory provisions if a specific point of law is to be relied upon; and
(e) include calculations if any of the following are in issue:
(i) child support,
(ii) spousal support,
(iii) remission of arrears.
70.22(5) The judge or master may, either before or at the hearing of the motion, waive or vary the requirements of this rule where there is insufficient time to comply.
APPLICATION BRIEFS AND APPEAL BRIEFS
70.23(1) If an application is contested,
(a) rule 70.22 applies, with necessary changes; and
(b) an application brief is required using Form 70R (motion brief) with necessary changes.
70.23(2) If an appeal to a judge is filed, Rule 62 (appeals) applies and an appeal brief is required.
CASE MANAGEMENT — WINNIPEG CENTRE
DEFINITIONS
70.24(1) In this rule,
"answer" includes a statement of defence; (« réponse »)
"petitioner" includes an applicant and a plaintiff; (« requérant »)
"respondent" includes a defendant. (« intimé »)
APPLICATION OF CASE MANAGEMENT RULES
Application to proceedings in Winnipeg Centre
70.24(2) This rule applies to a proceeding commenced in the Winnipeg Centre on or after November 1, 2002 other than
(a) a proceeding under Part III (child protection) of The Child and Family Services Act;
(b) a proceeding to set aside a protection order under section 11 of The Domestic Violence and Stalking Act;
(c) subject to subrule (4), a proceeding under Part VII (private guardianship and access) of The Child and Family Services Act or under The Adoption Act;
(d) a proceeding under The Reciprocal Enforcement of Maintenance Orders Act or The Inter-jurisdictional Support Orders Act;
(e) a proceeding under Part VI of The Family Maintenance Act;
(f) a proceeding under section 18 or 19 of the Divorce Act (Canada) to vary, rescind or suspend an order of support made under that Act;
(g) in a proceeding in which the only relief sought is a recalculation order;
(h) in a proceeding by the support determination officer seeking an order of financial disclosure, enforcement of such an order or an order that income be imputed to a party;
(i) an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction in which the return of a child is sought, other than an application directly to court as contemplated by article 29 of the Convention; and
(j) a proceeding to enforce an order for custody pursuant to The Child Custody Enforcement Act, other than an order granting a right of access or visitation to a child.
M.R. 92/2005; 93/2005; 14/2008
Motion to include excluded proceedings
70.24(3) A party to a proceeding that is excluded from case management under subrule (2) may make a motion to have this rule apply to that proceeding.
Application to contested private guardianship and access proceedings
70.24(4) If a party to a proceeding referred to in clause (2)(c) contests the proceeding, this rule applies to that proceeding.
Application to proceedings commenced before November 1, 2002
70.24(5) This rule applies to a proceeding commenced in the Winnipeg Centre of the family division before November 1, 2002, other than a proceeding referred to in subrule (2), if
(a) the proceeding had been selected by the court for case management before November 1, 2002; or
(b) a party to the proceeding files a requisition with the registrar requesting that this rule apply and a case conference be scheduled.
CASE MANAGEMENT PAMPHLET
70.24(6) The registrar shall give every petitioner in a family proceeding, other than a proceeding under Part III (child protection) of The Child and Family Services Act, sufficient copies of the case management pamphlet prepared by the registrar, for service on each party.
Petitioner serves case management pamphlet
70.24(7) The petitioner shall serve the case management pamphlet on every other party at the same time and in the same manner as the originating process is served.
Case management pamphlet given to party
70.24(8) The lawyer of record for a party who receives from the court, or is served with, the case management pamphlet shall give a copy of it to the party.
RESTRICTING MOTIONS AND APPLICATIONS
No motions or applications heard before first case conference held
70.24(9) No motion or application may be heard until the first case conference has been held, except in a situation of urgency or hardship with leave of a judge.
SCHEDULING FIRST CASE CONFERENCE
Scheduling first case conference
70.24(10) The first case conference in a proceeding shall be scheduled
(a) on the setting of a hearing date for the first contested motion or first contested application in a proceeding; or
(b) at any time on the request of a party to a proceeding.
Scheduling case conference if subrule (9) applies
70.24(11) If under subrule (9) a motion or application is heard before the first case conference is held, the first case conference shall be scheduled at the hearing of the motion or application.
Requisition for case conference filed and served
70.24(12) A party requesting a case conference shall
(a) set a date for the case conference with the registrar and file a requisition for a case conference; and
(b) serve the requisition on the other party at least 14 days before the date of the case conference unless the parties agree to a shorter period of notice.
Earlier date for case conference
70.24(13) A party may request an earlier date for a case conference by obtaining an earlier date from the registrar then filing and serving a requisition for a case conference at least 14 days before the date.
CASE MANAGEMENT INFORMATION STATEMENT
Case management information statement for first conference
70.24(14) For the first case conference, each party shall file and serve a case management information statement (Form 70S) no later than 2:00 p.m. on a day that is at least two days before the date of the first case conference.
Case management information statement for subsequent conference
70.24(14.1) For a subsequent case conference, each party shall file and serve a case management information statement (Form 70S) in accordance with subrule (14), unless the case conference judge otherwise directs.
Contents of case management information statement
70.24(15) The case management information statement shall include the following:
(a) if the proceeding is settled, an undertaking by the party who will be filing the final order or other concluding document that it will be filed within 30 days after the date of the case conference;
(b) if the proceeding is not settled, details of the outstanding issues.
SCHEDULING SUBSEQUENT CASE CONFERENCES
Scheduling a subsequent case conference
70.24(16) A case conference, other than the first case conference, may be scheduled
(a) at any time by a party to the proceeding in accordance with subrule (12); or
(b) at the conclusion of a case conference, at the discretion of the case conference judge.
ADJOURNING A CASE CONFERENCE
No adjournment if 200 day rule applies
70.24(17) No adjournment shall be allowed with respect to a case conference set down under clause (33)(b) except with leave of a judge obtained at least 14 days before the case conference date.
Adjourning first case conference
70.24(18) For the first case conference, a party may, with the consent of the other party, request an adjournment of a case conference, by filing a request for adjournment (Form 70T) at least 14 days before the date of the case conference. The request must set out
(a) the date to which the case conference is requested to be adjourned; and
(b) the circumstances necessitating the request for the adjournment.
One adjournment of first case conference
70.24(19) A case conference judge may grant only one adjournment of the first case conference, unless there are extraordinary circumstances.
Adjourning other than first case conference
70.24(20) With respect to adjourning a case conference other than the first one, a party may, with the consent of the other party, request an adjournment by filing a request for adjournment (Form 70T) at least 14 days before the date of the case conference.
CANCELLING A CASE CONFERENCE
70.24(21) A case conference may be cancelled by a case conference judge if the matter has been settled, discontinued or determined and the party requesting the cancellation files
(a) the final consent order or other concluding document; or
(b) an undertaking that the final consent order or other concluding document will be filed within 30 days after the date of that case conference.
ATTENDING A CASE CONFERENCE
Personal attendance by parties and lawyers
70.24(22) Each party and the lawyer who proposes to conduct the trial or hearing on the party's behalf, shall personally attend a case conference unless subrule (23) applies.
Telephone or video conference in extenuating circumstances
70.24(23) In extenuating circumstances, a party or a party's lawyer may attend a case conference by way of a telephone or video conference if
(a) facilities for a telephone or video conference are available at the court or provided by a party; and
(b) the telephone or video conference is arranged by the party and notice of the arrangement is given to the other parties and to the court.
POWERS OF CASE CONFERENCE JUDGE
Powers of case conference judge
70.24(24) The case conference judge may do one or more of the following:
(a) make consent orders and hear or dispose of a proceeding or an issue in a proceeding where the proceeding or issue is not contested;
(b) give such directions as the case conference judge considers necessary or advisable for the just, expeditious and cost-effective determination of the proceeding;
(c) adjourn the case conference and any scheduled hearing in accordance with these rules;
(d) repealed, M.R. 11/2005;
(e) set the proceeding down for trial, specify when and by whom the trial record is to be filed or adjourn any scheduled trial;
(f) order the payment of costs by a party or a party's lawyer and fix the costs.
Returning documents to parties
70.24(24.1) On the request of a party, any documents made available to the case conference judge shall be returned to the parties after the case conference, except those documents which the parties agree may be retained for the use of the judge who presides at the trial or hearing.
70.24(25) A case conference judge may deal with a failure to follow any provision of these rules by making any order that the judge considers appropriate, including
(a) an order for costs against a party or a party's lawyer;
(b) an order staying proceedings;
(c) an order striking out all or part of a pleading; and
(d) an order compelling the attendance of a party or a party's lawyer at a case conference.
70.24(26) If an order is made under clause (25)(b) or (c), the party against whom the order is made may make an application by notice of motion to the case conference judge to set aside the order.
CASE CONFERENCE MEMORANDUM
70.24(27) After a case conference, the case conference judge shall issue a memorandum setting out the results of the case conference, including
(a) any orders made or directions given;
(b) the issues that are resolved;
(c) the issues requiring a trial or hearing; and
(d) if the judge schedules a subsequent case conference or a party requests one, the date of the subsequent case conference and the steps to be taken before that case conference.
Memorandum to be filed and sent out
70.24(28) A memorandum under subrule (27) shall be filed and sent to the parties or their lawyers and, subject to subrule (29), is binding on the parties.
70.24(29) A party who disputes the accuracy of a memorandum issued under subrule (27) shall, within 14 days after receipt of the memorandum, notify the court and the other party of the objection and may request that the case conference be re-opened to address the matter in dispute, and the case conference judge may re-open the case conference for the purpose of addressing the objection.
70.24(30) Discussions at a case conference are without prejudice and shall not be referred to in motions or at the trial or hearing of the proceeding, except as disclosed in a memorandum under subrule (27).
TRIAL
Trial date set at case conference
70.24(30.1) A matter may only be set down for trial at a case conference unless a judge otherwise orders.
Case conference judge not to preside at trial
70.24(31) A judge who presides at a case conference in a proceeding shall not, except with the consent of the parties, preside at the trial or hearing.
DISMISSING PROCEEDINGS IN CERTAIN CIRCUMSTANCES
Notice of dismissal of proceeding 200 days after filing date
70.24(32) If 200 days after the date the originating process was filed,
(a) a case conference has not been scheduled; or
(b) default has been noted but the proceeding has not been set down for a hearing or a determination by a judge;
the registrar shall serve the petitioner, and the respondent if an answer has been filed, with a notice of dismissal as set out in subrule (33).
70.24(33) The registrar's notice shall state that an order dismissing the proceeding will be made without further notice unless, within 30 days after the date of the notice, one of the parties
(a) files the final consent order or concluding document disposing of all the issues in the proceeding;
(b) arranges for a case conference date to be set; or
(c) arranges for the matter to be set down for a hearing or a determination by a judge.
70.24(34) The registrar shall serve the notice by sending it by regular lettermail to
(a) the lawyer of record for the petitioner but if the petitioner is not represented by a lawyer, to the petitioner at his or her address as set out in the court file; and
(b) if an answer has been filed, to the lawyer of record for the respondent, but if the respondent is not represented by a lawyer, to the respondent at his or her address as set out in the court file.
Lawyer to serve notice of dismissal on client
70.24(35) A lawyer who is served with a registrar's notice under subrule (34) shall
(a) immediately serve the notice on his or her client by regular lettermail; and
(b) file proof of service within 14 days after the date the notice was served on the lawyer.
70.24(36) If neither party takes any action under subrule (33) within 30 days after the date of the notice, the registrar shall
(a) make an order dismissing the proceeding without costs; and
(b) serve the order by regular lettermail on the parties who were served with the notice under subrule (34).
Lawyer to serve dismissal order on client
70.24(37) Subrule (35) applies to a lawyer who is served with a registrar's dismissal order under clause (36)(b) with necessary changes.
Judge may set aside dismissal order
70.24(38) A judge may, on motion, set aside a registrar's dismissal order made under clause (36)(a).
PARENT INFORMATION PROGRAM
70.24.1(1) In this rule,
"application" includes a petition and a petition for divorce; (« requête »)
"attendance certificate" means a certificate signed by a program official confirming a party's attendance at the program; (« certificat de participation »)
"designated location" means a location designated by the government where the program is offered; (« lieu désigné »)
"party" means a party to a proceeding but does not include
(a) an agency within the meaning of The Child and Family Services Act,
(b) the Director of Child and Family Services appointed under The Child and Family Services Act, or
(c) the Director of Employment and Income Assistance designated under The Employment and Income Assistance Act; (« partie »)
"program" means the For the Sake of the Children parent information program operated by the government; (« programme »)
"program official" means a person who delivers the program or his or her delegate. (« responsable du programme »)
70.24.1(2) The purpose of this rule is to promote the best interests of children by providing an information program to persons in dispute over issues respecting children, as set out in subrule (3).
70.24.1(3) Subject to the provisions of this rule, every person residing in an area set out in subrule (8) or (9), who is a party to a proceeding that is in respect of
(a) custody;
(b) access; or
(c) private guardianship under Part VII of The Child and Family Services Act;
shall attend the program.
Proceedings to vary not included
70.24.1(4) Subrule (3) does not apply to a proceeding to vary an order.
70.24.1(5) A party shall attend the program
(a) before a motion for an interim order is heard by a judge; or
(b) if no motion for an interim order is heard, before an application for a final order is heard by a judge.
70.24.1(6) A certificate of attendance or the party's affidavit confirming his or her attendance at the program must be filed no later than 2 p.m. on a day that is at least two days before the hearing date of the motion or application, unless a judge waives the filing deadline.
70.24.1(7) This rule does not apply to the following proceedings:
(a) an inter-jurisdictional proceeding, including a request for return pursuant to The Hague Convention on the Civil Aspects of International Child Abduction;
(b) a proceeding in which the parties are consenting to the order;
(c) a proceeding that is unopposed;
(d) a proceeding in which default in filing an answer has been noted by the registrar.
Mandatory personal attendance in Winnipeg & Brandon areas
70.24.1(8) A party who resides in or within 100 kilometres of
(a) Winnipeg; or
(b) Brandon;
shall attend the program and shall do so in person, at the designated location for the area where the party resides.
Mandatory attendance in certain other areas
70.24.1(9) A party who resides in or within 80 kilometres (travelled on all-weather roads) of
(a) Dauphin;
(b) Flin Flon;
(c) Swan River;
(d) The Pas; or
(e) Thompson;
shall attend the program and shall do so
(f) in person, at the designated location for the area where the party resides; or
(g) by viewing the electronic version of the program at the designated location for the area where the party resides.
Order requiring attendance at program
70.24.1(10) Where a person
(a) is a party to a proceeding referred to in subrule (3) but does not reside in an area specified in subrule (8) or (9); or
(b) is a party to a proceeding to vary an order in respect of custody, access or private guardianship, regardless of where the party resides;
a judge may, on the motion of a party, or on the judge's own motion, make an order
(c) requiring a party to attend the program by a specified date; and
(d) specifying the manner of attending the program.
Exemption if program previously attended
70.24.1(11) A party is exempt from attending the program, if the party
(a) attended the program
(i) within the two-year period before the application was filed, or
(ii) if a motion for an interim order is filed after an application is filed, within the two-year period before the motion was filed; and
(b) files a certificate of attendance, or an affidavit confirming his or her attendance at the program, in accordance with subrule (6).
Exemption if program outside Manitoba previously attended
70.24.1(12) A party who attended a comparable program in a jurisdiction outside Manitoba is exempt from attending the program, if
(a) a program official approves the comparable program;
(b) the party attended the comparable program within the time period set out in clause (11)(a); and
(c) the party files the following documents within the time period set out in subrule (6):
(i) a certificate signed by the program official approving the comparable program,
(ii) an affidavit confirming the party's attendance at the comparable program.
Deferral, attendance alternative or exemption order
70.24.1(13) In a case of urgency, hardship, or where otherwise appropriate, the judge may, on the request of a party, or on the judge's own motion, make an order
(a) deferring the requirement that the party attend the program until a specified date, which may be after a motion for interim relief is heard;
(b) requiring the party to attend the program and specifying the manner of attending the program; or
(c) exempting the party from attending the program.
Requesting an order under subrule (13)
70.24.1(14) A party may make a request under subrule (13)
(a) by a motion to a judge;
(b) to a judge at a case conference; or
(c) to a judge at a pre-trial conference.
Consent of parties not required
70.24.1(15) Despite clause 70.24(24)(a) (case conference orders) and clause 70.26(8)(c) (pre-trial conference orders), a judge may make an order under subrule (13) with or without the consent of the parties.
Parent information program pamphlet
70.24.1(16) The registrar shall give every party who files an application or a motion in a proceeding to which this rule applies sufficient copies of the program pamphlet approved by the registrar, for service on all other parties.
70.24.1(17) The party who receives the pamphlets from the registrar shall serve the pamphlet on every other party at the same time and in the same manner as the application or motion is served.
70.24.1(18) If the lawyer of record for a party receives from the court or is served with the program pamphlet, the lawyer shall give a copy of it to the party.
Responding party's failure to attend program
70.24.1(19) The responding party's failure to attend the program shall not preclude the judge from hearing the other party's motion or application and the judge may make any order that the judge considers appropriate, including any order under subrule (20).
70.24.1(20) A judge may deal with a party's failure to attend the program, or to follow any other provision of this rule, by making any order that the judge considers appropriate, including any of the following:
(a) requiring the party to attend the program within a specified period of time and in a specified manner;
(b) ordering costs against a party or a party's lawyer;
(c) refusing to consider the party's evidence;
(d) suspending the party's right to submit evidence until the party attends the program;
(e) adjourning, staying or dismissing the proceeding;
(f) striking out all or part of a pleading.
Setting aside or varying order
70.24.1(21) If a judge makes an order under subrule (19) or (20), the party against whom the order is made may make an application by notice of motion to the judge to set aside or vary the order.
FAMILY PROPERTY REFERENCES
Family Property Act references
70.25(1) This rule applies to a reference before a master for an accounting of assets and liabilities between spouses or common-law partners under section 15 of The Family Property Act or for any other matter under The Family Property Act directed by a judge for a reference before a master.
70.25(2) An order directing a reference to a master for an accounting of assets and liabilities pursuant to section 15 of The Family Property Act shall set out the valuation date determined in accordance with section 16 of that Act unless the issue of determining the valuation date is specifically referred to the master in the order.
Directions from judge re shareability issues
70.25(3) If issues of shareability of assets or liabilities or ownership of assets are to be determined on the reference, directions shall be set out in the order of reference to delegate the determination of these issues to the master as part of the scope of the reference.
Directions from judge re non-shareable assets or debts
70.25(4) If jointly held assets or liabilities, or other assets or liabilities, alleged to be excluded from the application of The Family Property Act are to be valued on a reference, a specific direction for the valuation of such assets or liabilities shall be set out in the order of reference.
70.25(5) A motion to initiate a reference may be filed only after the order of reference has been signed by the judge.
70.25(6) The party seeking to initiate a reference (initiating party) shall file and serve the following documents on the other party (responding party) at least 25 days before the date the motion is returnable before the master:
(a) a notice of motion requesting that a date for a hearing for directions be set;
(b) a summary of assets and liabilities (Form 70U) which shall list as of the valuation date or if the valuation date is not agreed to, as of the proposed valuation date,
(i) the assets owned, controlled or possessed by the initiating party and the value of each asset as of the valuation date, and
(ii) the liabilities of the initiating party and the amount of each liability as of the valuation date.
70.25(7) Within 10 days after being served with the initiating party's summary of assets and liabilities, the responding party shall file the following documents and serve them on the initiating party:
(a) the responding party's summary of assets and liabilities (Form 70U), which shall list as of the valuation date:
(i) the assets owned, controlled or possessed by the responding party and the value of each asset as of the valuation date, and
(ii) the liabilities of the responding party and the amount of each liability as of the valuation date;
(b) the responding party's response to the initiating party's summary of assets and liabilities and include
(i) whether the responding party agrees or disagrees with the inclusion of each asset or liability,
(ii) the responding party's position as to the value of each asset and liability, and
(iii) identification and valuation of any other assets or liabilities which he or she believes should be included in, or excluded from, the initiating party's summary of assets and liabilities.
70.25(8) The initiating party shall file and serve a response to the responding party's summary of assets and liabilities. It shall be completed in the same manner as the responding party's response and filed and served no later than 2:00 p.m. on the day before the hearing date of the motion.
Serving supporting documentation
70.25(9) When an initiating party or a responding party serves a summary of assets and liabilities, he or she shall also serve on the other party any relevant supporting documentation that substantiates the information in the summary of assets and liabilities.
70.25(10) The notice of motion to initiate a reference under subrule (6) is returnable before a master at the time and date determined by the registrar.
If required documents not filed
70.25(11) On the date the motion is returnable, if the documents referred to in subrules (7) and (8) have been filed and served as required by this rule, the master may set a hearing date for directions. If they have not, the master may adjourn the motion on such terms that are just.
70.25(12) Part XIII of the Rules (references) applies to a reference before the master under this rule.
PRE-TRIAL CONFERENCES
70.26(1) Rule 50 (pre-trial conferences) does not apply to a family proceeding.
Exception: if case management applies
70.26(2) This rule does not apply to a family proceeding in the Winnipeg Centre governed by rule 70.24 (case management).
Exception — certain family proceedings
70.26(2.1) A pre-trial conference is not required
(a) in a proceeding in which the only relief sought is a recalculation order;
(b) in a proceeding by the support determination officer seeking an order of financial disclosure, enforcement of such an order or an order that income be imputed to a party; or
(c) in a proceeding referred to in clause 70.24(2)(i) or (j).
Initiation of pre-trial conference by a party
70.26(3) A party may initiate a pre-trial conference in a family proceeding at any time by
(a) requesting a date for a pre-trial conference from the registrar;
(b) filing the party's pre-trial brief; and
(c) serving the other parties to the proceeding with the pre-trial brief, immediately after filing it, but in any event, no later than 20 days before the date of the pre-trial conference.
70.26(4) The court may initiate a pre-trial conference at any time, set the time and date for it and direct a party to file a pre-trial brief.
70.26(5) A pre-trial brief shall set out
(a) the date, time and location of the pre-trial conference;
(b) the issues which have been resolved;
(c) the issues which remain unresolved;
(d) the position of the parties on unresolved issues; and
(e) where support or division of property remains in issue, the current financial position of the parties.
70.26(6) Not less than 10 days before a pre-trial conference, every other party shall file a pre-trial brief with the court and serve it on the other parties.
70.26(7) The following subrules respecting case conferences apply, with necessary changes, to pre-trial conferences:
(a) subrules 70.24(22) and (23) (attendance of parties and their lawyers);
(a.1) subrule 70.24(24.1) (returning documents to parties);
(b) subrule 70.24(25) (failure to follow rules);
(c) subrule 70.24(26) (reinstatement of pleadings);
(d) subrule 70.24(27) and (28) (case conference memorandum);
(e) subrule 70.24(29) (re-opening a case conference);
(f) subrule 70.24(30) (discussions without prejudice);
(g) subrule 70.24(31) (case conference judge not to preside at trial).
70.26(8) At a pre-trial conference, the judge may do one or more of the following:
(a) give such directions as the judge considers necessary or advisable for the just, expeditious and cost effective determination of the proceeding;
(b) adjourn the pre-trial conference;
(c) make consent orders and hear or dispose of a proceeding or an issue in a proceeding where the proceeding or issue is not contested;
(d) set the proceeding down for trial, specify when and by whom the trial record is to be filed or adjourn any scheduled trial;
(e) order the payment of costs by a party or a party's lawyer and fix the costs.
PLEADINGS
Proceeding commenced by petition
70.27(1) In a family proceeding commenced by a petition for divorce (Form 70A) or a petition (Form 70B); pleadings consist of
(a) the petition or petition for divorce;
(b) the answer or answer and petition for divorce; and
(c) reply, if any.