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Manitoba Regulation 553/88

Court of Queen's Bench Rules


TABLE OF CONTENTS (continued)

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

77   Proceedings Under The Expropriation Act

PART XVIII

COMING INTO FORCE

78   Coming into force

TARIFF A Tariff of Recoverable Costs

TARIFF B Tariff of Disbursements


PART XVII

PARTICULAR PROCEEDINGS

RULE 64

MORTGAGE ACTIONS

DEFINITION

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.

MORTGAGE ACTIONS

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

All persons interested

64.03(1)    All persons interested in the equity of redemption shall be named as defendants in the action subject to subrule (2).

Exception

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a motion without notice on a reference after judgment to add as defendants all subsequent encumbrancers who were not originally made parties.

Persons added after judgment

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

Sale

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.

Sale on Default

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.

Payment out

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.

Foreclosure

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.

Default in payment

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.

PERIOD ALLOWED FOR REDEMPTION

6 months, then one month

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.

Appointment of redemption day

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

Defendant files memorandum

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.

Master's order 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).

Deposit in other cases

64.06(4)    In other cases the master shall deal with the deposit in making his or her report.

PROCEDURE ON MORTGAGE REFERENCES GENERALLY

Rule 55 applies

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.

Reference to master

64.07(2)    The reference shall be to a master.

Plaintiff to file material

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.

Duties and powers of master

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.

Take account on a reference

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.

Master's report

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.

Service

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

Notice by mortgagee

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.

RULE 65

RECIPROCAL ENFORCEMENT OF UNITED KINGDOM JUDGMENTS

DEFINITIONS

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

Notice of application

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.

Affidavit in support

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.

Judgment and proof of service

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.

Information and belief

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.

ENFORCEMENT OF JUDGMENT

65.03       A judgment registered under the Act may be enforced in the same manner as an order of the court.

RULE 66

PARTITION PROCEEDINGS

HOW COMMENCED

Notice of application

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.

By minor

66.01(2)    A proceeding for partition or sale by or on behalf of a minor shall be on notice to the public trustee.

Service on mortgagee

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

FORM OF JUDGMENT

66.02       A judgment for partition or sale shall be in Form 66A.

PROCEEDS OF SALE

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.

RULE 67

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.

M.R. 120/2004

APPLICATION FOR GUARDIANSHIP OF THE ESTATE OF A MINOR

Affidavit in support

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.

M.R. 120/2004

Inquiry as to value

67.02(2)    The court may inquire in a summary way into the value of the minor's property.

M.R. 120/2004

Caveat

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.

M.R. 120/2004

Bond

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.

M.R. 120/2004

Form of order

67.02(5)    An order of guardianship shall be in Form 67D.

M.R. 120/2004

Revocation

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    ."

M.R. 120/2004

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.

M.R. 120/2004

Maintenance

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.

M.R. 120/2004

CONSENT OF MINOR

Consent of minor required

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.

M.R. 120/2004

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.

M.R. 120/2004

Examination by judge

67.04(3)    The judge may examine the minor with respect to his or her consent.

M.R. 120/2004

Minor outside Manitoba

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

RULE 68

PROCEEDINGS FOR JUDICIAL REVIEW

HOW COMMENCED

68.01       A Judge on application may grant an order of mandamus, prohibition, certiorari or quo warranto.

NOTICE TO NON-PARTIES

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.

RULE 69

DEFAULT JUDGMENT UNDER THE HAGUE CONVENTION

DEFAULT JUDGMENT

Conditions

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.

In case of urgency

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.

Exception

69.01(4)    Subrule (1) shall not apply to judgments concerning the status or capacity of persons.

RULE 70 — FAMILY PROCEEDINGS

TABLE OF CONTENTS

70.01   Definitions

70.01.1   Hague Convention — international child abduction

70.02   Application of rules

70.02.1   Purpose of rule and proportionality

70.03   Commencement of family proceedings

70.04   Certificate of marriage

70.05   Financial information required with originating process

70.05.1   Demand for financial information served with initiating pleading or answer

70.05.2   Service of initiating pleading

70.05.3   Deemed discontinuance of initiating pleading

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   Repealed

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   Contents of 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

Note: 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

DEFINITIONS

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 »)

"initiating pleading" means a document by which a family proceeding is commenced under this rule, and includes the following documents:

(a) petition for divorce (Form 70A),

(b) petition (Form 70B),

(c) notice of application (Form 70E),

(d) notice of application for guardianship (Form 70F),

(e) notice of application to vary (Form 70G),

(f) notice of motion to vary (Form 70H) respecting a final order,

(g) statement of claim; (« acte introductif d'instance »)

"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 »)

M.R. 151/2002; 92/2005; 98/2015

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.

M.R. 14/2008

APPLICATION OF RULES

70.02       The Rules apply to family proceedings, except where this Rule provides otherwise, expressly or by implication.

M.R. 151/2002

PURPOSE OF THIS RULE

Purpose of family proceedings rules

70.02.1(1)  The purpose of this Rule is to

(a) help parties resolve the legal issues in a family proceeding fairly and in a way that will

(i) take into account the impact that the conduct of the proceeding may have on a child, and

(ii) minimize conflict and promote cooperation between the parties; and

(b) secure the just, most expeditious and least expensive determination of every family proceeding on its merits.

M.R. 98/2015

Proportionality

70.02.1(2)  Securing the just, most expeditious and least expensive determination of a family proceeding on its merits includes, so far as is practicable, conducting the proceeding and allocating appropriate court resources to the proceeding in ways that are proportionate to

(a) the interests of any child affected;

(b) the importance of the issues in dispute;

(c) the amount of support and the value of property likely at issue in the proceeding;

(d) the complexity of the proceeding; and

(e) the likely expense of the proceeding to the parties.

M.R. 98/2015

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.

M.R. 151/2002

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.

M.R. 151/2002; 104/2004

Guardianship

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.

M.R. 151/2002

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.

M.R. 151/2002

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.

M.R. 151/2002

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.

M.R. 151/2002

Varying a final order

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).

M.R. 151/2002

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).

M.R. 14/2008

Application re Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada)

70.03(7.2)  A family proceeding in which only exclusive occupation of a family home is sought under section 20 of the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada), with a request for a without notice interim order, shall be commenced by filing a notice of application in Form 70E.1 with an affidavit in support (Form 70E.2).

M.R. 271/2014

Other relief

70.03(8)    A family proceeding, other than a proceeding under subrule (1), (2), (3), (4), (5), (7) or (7.2), 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.

M.R. 151/2002; 271/2014

Application for child support

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.

M.R. 151/2002

CERTIFICATE OF MARRIAGE

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.

M.R. 151/2002

FINANCIAL INFORMATION REQUIRED WITH INITIATING PLEADING

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 initiating pleading, the petitioner shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement) with the initiating pleading.

M.R. 151/2002; 98/2015

Where Form 70D not required

70.05(2)    Where an application for child support is made in the initiating pleading, 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 initiating pleading; and

(c) the application is made by a person whose income information is not necessary to determine the amount of the order.

M.R. 151/2002; 98/2015

Where only Part 1 of Form 70D required

70.05(3)    Where an application for child support is made in the initiating pleading, 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 initiating pleading; 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.

M.R. 151/2002; 98/2015

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 initiating pleading; 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 initiating pleading but shall file and serve Parts 3 and 4.

M.R. 151/2002; 98/2015

Where Federal Child Support Guidelines apply

70.05(5)    Where an application is made in the initiating pleading 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.

M.R. 151/2002; 98/2015

DEMAND FOR FINANCIAL INFORMATION SERVED WITH INITIATING PLEADING OR ANSWER

Demand for financial information served with initiating pleading

70.05.1     A party that serves an initiating pleading or an answer must also serve a demand for financial information (Form 70D.1) on the other party at the same time the initiating pleading or answer is served, if

(a) the initiating pleading or answer includes a claim for support or a request to vary support; and

(b) the other party's income information is necessary to determine an amount of support.

M.R. 98/2015

SERVICE OF INITIATING PLEADING

Time limit for serving initiating pleading

70.05.2(1)  An initiating pleading must be served on the other party within one year after the date it is filed, unless an order for substituted service, to validate service, or extend the time for service is granted within that year.

M.R. 98/2015

Transitional — initiating pleading not served before November 1, 2015

70.05.2(2)  An initiating pleading filed before November 1, 2015, but not served by that date must be served before November 1, 2016, unless by that date an order for substituted service, to validate service, or extend the time for service is granted.

M.R. 98/2015

DEEMED DISCONTINUANCE OF INITIATING PLEADING

Deemed discontinuance of initiating pleading

70.05.3(1)  An initiating pleading is deemed to be discontinued if proof of service of it on the other party has not been filed

(a) within one year after the date it is filed; or

(b) within the period specified by the court if an order for substituted service, to validate service, or extend the time for service is granted.

M.R. 98/2015

Transitional — initiating pleading not served before November 1, 2016

70.05.3(2)  An initiating pleading filed before November 1, 2015, is deemed to be discontinued on November 1, 2016, if by that date the initiating pleading is not served and no order for substituted service, to validate service, or extend the time for service is granted.

M.R. 98/2015

SERVICE OF PETITION

Manner of service

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.

M.R. 151/2002

Petitioner not to effect personal service

70.06(2)    A petition that is served personally shall be served by someone other than the petitioner.

M.R. 151/2002

Acknowledgment of service

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.

M.R. 151/2002

Affidavit of service

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.

M.R. 151/2002; 87/2008

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 Assistance, designated under The Manitoba 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 Section, Legal Services 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 Section, Legal Services 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.

M.R. 151/2002; 12/2005; 14/2008; 98/2015

ANSWER

Definitions

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 »)

M.R. 151/2002

Answer to petition

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".

M.R. 151/2002

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.

M.R. 151/2002

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 initiating pleading 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.

M.R. 151/2002; 98/2015

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 initiating pleading or the answer; and

(c) the income information of the respondent is not necessary to determine the amount of the order.

M.R. 151/2002; 98/2015

Where only Part 1 of Form 70D required

70.07(6)    Where an application for child support is made in the initiating pleading 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 initiating pleading; 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.

M.R. 151/2002; 98/2015

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 initiating pleading 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.

M.R. 151/2002; 98/2015

Where Federal Child Support Guidelines apply

70.07(8)    Where an application for child support under the Divorce Act (Canada) is made in the initiating pleading 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.

M.R. 151/2002; 98/2015

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.

M.R. 151/2002

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 initiating pleading 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.

M.R. 151/2002; 98/2015

Rule 70.07 applies

70.08(3)    Rule 70.07 applies with necessary changes to the financial information the person is required to provide under subrule (2).

M.R. 151/2002

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.

M.R. 151/2002

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.

M.R. 151/2002

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.

M.R. 151/2002

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.

M.R. 151/2002

CONSOLIDATION OF PROCEEDINGS

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.

M.R. 151/2002

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.

M.R. 151/2002

Effect of noting default

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.

M.R. 151/2002

Late filing of answer

70.11(3)    A respondent may file an answer at any time before default is noted.

M.R. 151/2002

UNCONTESTED PETITIONS

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.

M.R. 151/2002

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.

M.R. 151/2002

Facts contained in affidavits

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.

M.R. 151/2002

UNCONTESTED PETITIONS — DOCUMENTS

Petition — copies of order

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.

M.R. 151/2002; 92/2005

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.

M.R. 151/2002; 92/2005

70.14(3)    Repealed.

M.R. 151/2002; 188/2004

CERTIFICATE OF DIVORCE

70.15       A certificate of divorce issued under subsection 12(7) of the Divorce Act (Canada) shall be in Form 70P.

M.R. 151/2002

MEDIATION

Referral by court

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.

M.R. 151/2002

Report

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.

M.R. 151/2002

FAMILY EVALUATOR

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.

M.R. 151/2002

INTERIM PROCEEDINGS

Interim proceedings

70.18       An interim proceeding, other than a proceeding to which subrule 70.03(7.2) applies, 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.

M.R. 151/2002; 271/2014

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, or the notice of application under subrule 70.03(7.2).

M.R. 151/2002; 271/2014

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.

M.R. 151/2002

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.

M.R. 151/2002

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).

M.R. 151/2002

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).

M.R. 151/2002

Late affidavits

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.

M.R. 151/2002

Cross motions

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.

M.R. 151/2002

Delayed motions deemed abandoned

70.20(7)    Where a motion has been filed and within one year of the date of filing,

(a) a case conference has not been held, if a case conference is required; or

(b) a hearing date has not been set;

the motion is deemed to be abandoned, unless leave is granted to extend the time for setting a hearing date.

M.R. 151/2002; 98/2015

One affidavit by party

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.

M.R. 151/2002

Affidavits by non-parties

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.

M.R. 151/2002

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.

M.R. 151/2002

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.

M.R. 151/2002

70.21       Repealed.

M.R. 151/2002; 23/2016

MOTION BRIEFS

Rule 37.08 not applicable

70.22(1)    Rule 37.08 (motion briefs) does not apply to a family proceeding.

M.R. 151/2002

Exceptions

70.22(1.1)  A motion brief 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 motion for financial disclosure to be heard by a master.

M.R. 92/2005; 98/2015

Moving party's motion brief

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.

M.R. 151/2002

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.

M.R. 151/2002

Contents of motion brief

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.

M.R. 151/2002

Waiver of motion brief

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.

M.R. 151/2002

APPLICATION BRIEFS AND APPEAL BRIEFS

Application 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.

M.R. 151/2002

Appeal briefs

70.23(2)    If an appeal to a judge is filed, Rule 62 (appeals) applies and an appeal brief is required.

M.R. 151/2002

CASE MANAGEMENT — WINNIPEG CENTRE

OBJECTIVES OF CASE MANAGEMENT

Objectives of case management

70.24(1)    Recognizing the emotional and financial impact family proceedings can have on those involved and consistent with the principle of securing the just, most expeditious and least expensive determination of a proceeding, case conferences have two objectives:

1.  To pursue the possibility of settlement of some or all of the claims made by the parties.

2.  If no settlement is reached, to ensure that the proceeding is ready for hearing and determination by a judge, by making orders and giving directions about substantive and procedural matters in the proceeding.

M.R. 98/2015

[For additional historical information, see the note after this rule.]

DEFINITIONS

Definitions

70.24(2)    In this rule,

"answer" includes a statement of defence; (« réponse »)

"petitioner" includes an applicant and a plaintiff; (« requérant »)

"respondent" includes a defendant. (« intimé »)

M.R. 98/2015

APPLICATION OF CASE MANAGEMENT RULES

Application to proceedings in Winnipeg Centre

70.24(3)    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 and any related private guardianship or access proceeding under Part VII of that Act;

(b) subject to subrule (5), a proceeding to set aside a protection order under section 11 of The Domestic Violence and Stalking Act;

(c) subject to subrule (5), 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 Inter-jurisdictional Support Orders Act;

(e) a proceeding under Part VI (Enforcement of Maintenance Orders) 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 appointed under section 24.2 of the Child Support Guidelines Regulation 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. 98/2015

Including excluded proceedings

70.24(4)    Where a proceeding is excluded from case management under subrule (3),

(a) a party may make a motion to have this rule apply to that proceeding; or

(b) a judge may, at any time, order that a case conference be held.

M.R. 98/2015

Certain contested proceedings

70.24(5)    If a party to a proceeding referred to in clause (3)(b) (set aside protection order) or clause (3)(c) (private guardianship and access) contests the proceeding, this rule applies to that proceeding.

M.R. 98/2015

Application to proceedings commenced before November 1, 2002

70.24(6)    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 (3), if a party to the proceeding files a requisition with the registrar requesting that this rule apply.

M.R. 98/2015

CASE MANAGEMENT PAMPHLET

Case management pamphlet

70.24(7)    The registrar must 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.

M.R. 98/2015

Petitioner serves case management pamphlet

70.24(8)    The petitioner must serve the case management pamphlet on every other party at the same time and in the same manner as the initiating pleading is served.

M.R. 98/2015

Case management pamphlet given to party

70.24(9)    The lawyer of record for a party who receives from the court or is served with the case management pamphlet must give a copy of it to the party.

M.R. 98/2015

RESTRICTING MOTIONS AND APPLICATIONS BEFORE FIRST CASE CONFERENCE HELD

Motions or applications before the first case conference

70.24(10)   Only the following motions or applications may be heard before the first case conference in a proceeding is held:

(a) a motion with respect to service, including a motion for substituted service, to validate service, or extend the time for service;

(b) a motion for financial disclosure;

(c) a motion to withdraw as counsel, unless a trial date has been set;

(d) an application under the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) for an interim order of exclusive occupation that is sought on a without notice basis;

(e) with leave of a judge, a motion or application in a situation of urgency or hardship.

M.R. 98/2015

SCHEDULING CASE CONFERENCES

Scheduling case conference

70.24(11)   If a case conference date has not been set by a judge, a party may request that a case conference be scheduled in accordance with subrules (12) to (18).

M.R. 98/2015

SCHEDULING CASE CONFERENCE — NO REQUEST RELATING TO SUPPORT OR CHILDREN

Scheduling case conference — no request relating to support or children

70.24(12)   If there is

(a) no request relating to support or a variation of support; and

(b) no request relating to custody, access or private guardianship of a child, or a variation of any of these matters;

a party may request a case conference date by filing a requisition for a case conference date (Form 70D.2) and certifying on the requisition

(c) that the initiating pleading has been filed and served; and

(d) whether each party to the proceeding consents to the request for a case conference.

M.R. 98/2015

SCHEDULING CASE CONFERENCE — REQUEST RELATING TO SUPPORT OR CHILDREN

Scheduling case conference — request relating to support or children

70.24(13)   If there is

(a) a request relating to support or a variation of support; or

(b) a request relating to custody, access or private guardianship of a child, or a variation of any of these matters;

a party may request a case conference date by filing a requisition for a case conference date (Form 70D.2) in accordance with paragraph 1 or 2.

1. Parties consent

If the parties consent to a case conference date being set, the party requesting the case conference must certify the following on the requisition:

(a) each party to the proceeding consents to the request for a case conference;

(b) the initiating pleading has been filed and served;

(c) if there is a request relating to support or a variation of support, all financial information required by these rules and the guidelines has been provided by each party to the other party;

(d) if there is a request relating to custody, access or private guardianship of a child, and if required to do so, the parties

(i) have attended the For the Sake of the Children program referred to in rule 70.24.1, or

(ii) are enrolled to attend the program.

2.  Parties do not consent or financial information not provided by other party

If a party ("other party") to the proceeding does not consent to the request for a case conference — or does not provide all financial information required by these rules and the guidelines — the party requesting the case conference must certify the following on the requisition:

(a) the initiating pleading has been filed and served;

(b) the party requesting the case conference has provided all financial information required by these rules and the guidelines to the other party;

(c) the party requesting the case conference has served a demand for financial information (Form 70D.1) on the other party;

(d) with respect to the required financial information of the other party, the party requesting the case conference

(i) has received the required financial information, or

(ii) has obtained an order for financial disclosure from the other party, or, within two weeks after filing the requisition, will make a motion for an order for financial disclosure from the master and the motion will be heard before the date of the case conference;

(e) if there is a request relating to custody, access or private guardianship of a child, and if required to do so, the party requesting the case conference has attended or is enrolled to attend the For the Sake of the Children program referred to in rule 70.24.1.

M.R. 98/2015

URGENT SITUATION OR HARDSHIP — MASTER MAY GRANT LEAVE TO SET CASE CONFERENCE DATE

Requisition to obtain leave to set case conference date

70.24(14)   If

(a) a situation of urgency or hardship exists with regard to a request that relates to

(i) support or a variation of support, or

(ii) custody, access or private guardianship of a child, or a variation of any of these matters; and

(b) the party who wishes to have a case conference scheduled is unable to certify the matters referred to in paragraph 1 or 2 of subrule (13);

the party may file a requisition for case conference date (Form 70D.2) to request that a master grant leave to the party to have a case conference date set by the registrar.

M.R. 98/2015

Master may grant leave to set case conference date

70.24(15)   In determining whether to grant leave to a party to have a case conference date set, a master must consider the party's request as set out in the requisition, without an oral hearing or an appearance by the party or his or her lawyer.

M.R. 98/2015

REQUISITION FOR CASE CONFERENCE DATE TO BE SERVED

Requisition for case conference served

70.24(16)   After the registrar has set a case conference date, the party who requested the date must serve a requisition for case conference date (Form 70D.2), completed with the date for the case conference, on the other party. The requisition must be served at least 14 days before the date of the case conference, unless the parties agree to a shorter period of notice.

M.R. 98/2015

Transitional — case conference date set before November 1, 2015

70.24(17)   If, before November 1, 2015 the registrar sets a date for a case conference to be held after November 1, 2015, the following applies to the proceeding:

(a) each party must file and serve a case management information statement (Form 70S) no later than 2:00 p.m. on a day that is at least seven days before the date of the case conference;

(b) a demand for financial information (Form 70D.1) does not need to be served;

(c) a requisition for case conference date (Form 70D.2) does not need to be filed and served;

(d) the balance of these Rules apply.

M.R. 98/2015

Earlier date for case conference

70.24(18)   If a party obtains an earlier date for a case conference from the registrar, the party must file and serve a requisition for case conference date (Form 70D.2) setting out the earlier date at least 14 days before the date of the case conference, unless the parties agree to a shorter period of notice.

M.R. 98/2015

CASE MANAGEMENT INFORMATION STATEMENT

Case management information statement for every conference

70.24(19)   For every case conference, each party must file and serve a case management information statement (Form 70S) no later than 2:00 p.m. on a day that is at least seven days before the date of the case conference.

M.R. 98/2015

ADJOURNING A CASE CONFERENCE

Adjourning a case conference

70.24(20)   A party may, with the consent of the other party, request that a case conference judge adjourns 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, if any, to which the case conference is requested to be adjourned; and

(b) the circumstances necessitating the request for the adjournment.

M.R. 98/2015

One adjournment of first case conference

70.24(21)   A case conference judge may grant only one adjournment of the first case conference, unless there are extraordinary circumstances.

M.R. 98/2015

CANCELLING A CASE CONFERENCE

Cancelling a case conference

70.24(22)   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.

M.R. 98/2015

ATTENDING A CASE CONFERENCE

Personal attendance by parties and lawyers

70.24(23)   Each party and the lawyer who proposes to conduct the trial or hearing on the party's behalf must personally attend each case conference, unless subrule (24) or (25) applies.

M.R. 98/2015

Party subject to no contact order

70.24(24)   If a criminal or civil court has made an order prohibiting or restricting one of the parties from having contact or communicating with another party ("no contact order"), the party requesting the case conference must

(a) advise the court of the nature and terms of the no contact order; and

(b) arrange for a telephone or video conference in accordance with subrule (25).

M.R. 98/2015

Telephone or video conference

70.24(25)   In extenuating circumstances, or where a party is subject to a no contact order, the party or the 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.

M.R. 98/2015

MAXIMUM OF THREE CASE CONFERENCES

Three case conferences

70.24(26)   Unless leave is granted by a judge, a maximum of three case conferences may be held, whether requested by a party or directed to be scheduled by the court.

M.R. 98/2015

Hearing or trial date set by third case conference

70.24(27)   Unless there are exceptional circumstances, the case conference judge must set a hearing or trial date not later than at the third case conference.

M.R. 98/2015

POWERS OF CASE CONFERENCE JUDGES

Considerations of case conference judge

70.24(28)   At a case conference, the case conference judge may make orders and give directions that the judge considers will

(a) further the purpose of the family proceedings rules as set out in subrule 70.02.1(1); and

(b) take into account the principle of proportionality as set out in subrule 70.02.1(2).

M.R. 98/2015

Orders and directions at a case conference

70.24(29)   The case conference judge may, on his or her own motion or on request by a party, after taking into account the parties' pleadings and the service requirements under the rules, do any of the following:

Substantive Matters

1.  Make an order to which all the parties consent.

2.  Make an order respecting a proceeding, or an issue in the proceeding,

(a) if it is not contested; or

(b) with the consent of the parties, if it is contested.

3.  Make an order requiring a party to attend the For the Sake of the Children program referred to in rule 70.24.1.

4.  Refer the parties to a designated mediator in accordance with section 47 of The Court of Queen's Bench Act or appoint a family evaluator in accordance with section 49 of that Act.

5.  Grant a party leave to obtain blood tests or other genetic tests of persons named by the judge and to submit the results in evidence, in accordance with section 21 of The Family Maintenance Act.

6.  Order a party to disclose financial information when the party is under an obligation to disclose financial information and has failed to do so.

7.  Order a party to pay child support on an interim basis that is reviewable on motion to another judge, taking into account the current annual income of the party with the obligation to pay child support and the applicable table of the guidelines, provided the amount of child support ordered does not exceed the applicable table amount for an annual income of $150,000.

8.  Impute income to a party on an interim basis that is reviewable on motion to another judge, for the purposes of making an order under paragraph 7 if the party has failed to disclose financial information when under an obligation to do so.

9.  Order that the enforcement of support or arrears be suspended in accordance with section 61.2 of The Family Maintenance Act.

10. Vary a protection order or prevention order under The Domestic Violence and Stalking Act, with or without conditions, to permit a party to attend a proceeding and communicate with another party at the proceeding.

11. Vary an order under clause 10(1)(j) of The Family Maintenance Act, with or without conditions, to permit a party to attend a proceeding and communicate with another party at the proceeding.

12. Order that child support be recalculated in accordance with section 24.3 of the guidelines.

Procedural Matters

13. Adjourn a case conference or any hearing in the proceeding.

14. Direct the parties to attend a further case conference.

15. Direct a party to place a matter before a judge or master for a determination.

16. Order that a pleading be amended or specifying the time when pleadings are closed under the rules.

17. Direct a party who intends to file a motion to do so within a specified time.

18. Grant leave under subrule 70.20(7) to extend the time for setting a hearing date for a motion, if the motion had been deemed to be abandoned under that subrule.

19. Order that default be set aside and grant leave to allow a party to file an answer, with or without conditions.

20. Order that procedures for discovery of documents and examination of parties be completed within a specified time, or that they be dispensed with, or limited.

21. Direct, in accordance with rule 70.30, that at the trial the evidence be adduced, in whole or in part, by affidavit.

22. Direct a party to set a proceeding down for trial, whether or not a motion for summary judgment has been filed.

23. Set a date for a final hearing if a party who has filed an initiating pleading or a response to a pleading does not appear at a case conference, with or without further notice of the final hearing date to the non-appearing party.

24. Direct that a case conference, or a portion of a case conference, be recorded.

25. If a proceeding to strike or expunge all or part of a pleading or document has been or will be commenced, provide directions respecting the proceeding, including that the proceeding be limited or dismissed.

26. Direct that a reference be made to the master under rule 54 for an accounting under The Family Property Act, if the parties have agreed to the date of commencement of cohabitation and the date of separation.

27. Order that one or more matters in issue be severed and proceed to a final hearing.

28. Order that two or more proceedings be heard at the same time or consolidated in accordance with rule 6.

29. Direct that a party file and serve written material and specify the time for doing so.

30. Order that within specified time periods, specified actions in the proceeding be taken, including

(a) filing trial records, agreed statements of facts, agreed books of documents and briefs of the law; and

(b) exchanging documents, including exchanging

(i) witness lists,

(ii) experts' reports, and

(iii) resumes of experts.

31. Give directions as to the preparation and entry of an order.

General Matters

32. Make any order or give any direction that the case conference judge considers will further the purpose of these rules and the objectives of case management.

M.R. 98/2015

Motions to masters

70.24(30)   For greater certainty, nothing in subrule (29) affects the jurisdiction of a master with respect to motions.

M.R. 98/2015

Oral submissions

70.24(31)   In making an order or giving a direction under subrule (29), the case conference judge may do so on the basis of oral submissions.

M.R. 98/2015

Case conference orders

70.24(32)   An order made at a case conference

(a) must, unless the case conference judge orders otherwise, be prepared in accordance with rule 70.31, filed in the court and served on the other party; and

(b) is effective from the date it is pronounced, unless the order provides otherwise.

M.R. 98/2015

FAILURE TO COMPLY WITH RULES OR ORDERS

Failure to comply with rules or orders

70.24(33)   If a party, without reasonable excuse,

(a) fails to comply with any provision of these Rules; or

(b) fails to comply with any order or direction given by a case conference judge;

the case conference judge may make one or more of the following orders:

(c) an order for costs against a party or a party's lawyer;

(d) an order staying a proceeding;

(e) an order striking out all or part of a pleading;

(f) an order compelling the attendance of a party or a party's lawyer at a case conference;

(g) any other order that the judge considers appropriate.

M.R. 98/2015

Costs

70.24(34)   Costs under clause (33)(c) are to be fixed by the case conference judge and are payable immediately, unless otherwise ordered.

M.R. 98/2015

Reasons required for subrule (33) order

70.24(35)   If the case conference judge makes an order under subrule (33), the judge must provide reasons for the order in the memorandum or on the record at the case conference.

M.R. 98/2015

Reinstatement of pleadings

70.24(36)   If an order is made under clause (33)(d) or (e), 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.

M.R. 98/2015

RETURNING DOCUMENTS TO PARTIES

Returning documents to parties

70.24(37)   On the request of a party, any document made available to the case conference judge, other than the case management information statement, must be returned to the party after the case conference, except any document which the parties agree may be retained for the use of the judge who presides at the trial or hearing.

M.R. 98/2015

CASE CONFERENCE MEMORANDUM

Case conference memorandum

70.24(38)   After a case conference, the case conference judge must 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 and the matters that are agreed to;

(c) the issues requiring a trial or hearing; and

(d) the date of the next case conference, if any.

M.R. 98/2015

Reasons for orders or directions

70.24(39)   If the case conference judge makes an order or gives a direction under paragraph 2(b), paragraphs 4 to 11 or paragraph 32 of subrule (29), the judge must provide reasons for the order or direction in the memorandum or on the record at the case conference.

M.R. 98/2015

Memorandum to be filed and sent out

70.24(40)   A memorandum under subrule (38) must be filed and sent to the parties or their lawyers and, subject to subrule (41), is binding on the parties.

M.R. 98/2015

Re-opening of case conference

70.24(41)   A party who disputes the accuracy of a memorandum issued under subrule (38) must, 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. The case conference judge may re-open the case conference for the purpose of addressing the objection.

M.R. 98/2015

Discussions without prejudice

70.24(42)   Discussions at a case conference are without prejudice and must not be referred to in a motion or at the trial or hearing of the proceeding, except as disclosed in a memorandum under subrule (38).

M.R. 98/2015

TRIAL

Trial date set at case conference

70.24(43)   A matter may only be set down for trial at a case conference, unless a judge otherwise orders.

M.R. 98/2015

Case conference judge not to preside at trial

70.24(44)   A judge who presides at a case conference in a proceeding must not, except with the consent of the parties, preside at the trial or hearing.

M.R. 98/2015

Note: Rule 70.24 was reorganized when it was replaced by M.R. 98/2015.  Before that, it had been amended by the following regulations: 151/2002; 11/2005; 92/2005; 93/2005; 76/2007; 14/2008; 69/2010; 271/2014.

PARENT INFORMATION PROGRAM

Definitions

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 Assistance designated under The Manitoba 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 »)

M.R. 67/2007; 98/2015

Purpose

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).

M.R. 67/2007

Requirement to attend program

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.

M.R. 67/2007

Proceedings to vary not included

70.24.1(4)  Subrule (3) does not apply to a proceeding to vary an order.

M.R. 67/2007

When program must be attended

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.

M.R. 67/2007

Confirmation of attendance

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.

M.R. 67/2007

Excluded proceedings

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.

M.R. 67/2007

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.

M.R. 67/2007

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.

M.R. 67/2007

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.

M.R. 67/2007

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).

M.R. 67/2007

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.

M.R. 67/2007

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.

M.R. 67/2007

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.

M.R. 67/2007

Consent of parties not required

70.24.1(15)   Despite any other Rule, a judge may make an order under subrule (13) with or without the consent of the parties.

M.R. 67/2007; 98/2015

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.

M.R. 67/2007

Serving pamphlet

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.

M.R. 67/2007

Pamphlet given to party

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.

M.R. 67/2007

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).

M.R. 67/2007

Failure to attend program

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.

M.R. 67/2007

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.

M.R. 67/2007

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.

M.R. 151/2002; 104/2004

Order of reference

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.

M.R. 151/2002; 104/2004

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.

M.R. 151/2002

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.

M.R. 151/2002; 104/2004

Procedure

70.25(5)    A motion to initiate a reference may be filed only after the order of reference has been signed by the judge.

M.R. 151/2002

Initiating a reference

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.

M.R. 151/2002

Responding to the motion

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.

M.R. 151/2002

Initiating party's response

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.

M.R. 151/2002

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.

M.R. 151/2002

Filing notice of motion

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.

M.R. 151/2002

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.

M.R. 151/2002

Rules 54 and 55 apply

70.25(12)   Part XIII of the Rules (references) applies to a reference before the master under this rule.

M.R. 151/2002

PRE-TRIAL CONFERENCES

Rule 50 not applicable

70.26(1)    Rule 50 (pre-trial conferences) does not apply to a family proceeding.

M.R. 151/2002

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).

M.R. 151/2002; 92/2005

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(3)(i) or (j).

M.R. 92/2005; 14/2008; 98/2015

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 (Form 70S.3); 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.

M.R. 151/2002; 69/2010

Initiation by court

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.

M.R. 151/2002

70.26(5)    Repealed.

M.R. 151/2002; 69/2010

Service

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.

M.R. 151/2002

Applicable rules

70.26(7)    The following subrules respecting case conferences apply, with necessary changes, to pre-trial conferences:

(a) subrule 70.24(23) (personal attendance by parties and lawyers);

(b) subrule 70.24(24) (party subject to no contact order);

(c) subrule 70.24(25) (telephone or video conference);

(d) subrule 70.24(33) (failure to comply with rules or orders);

(e) subrule 70.24(36) (reinstatement of pleadings);

(f) subrule 70.24(37) (returning documents to parties);

(g) subrules 70.24(38) and (40) (case conference memorandum);

(h) subrule 70.24(41) (re-opening of case conference);

(i) subrule 70.24(42) (discussions without prejudice);

(j) subrule 70.24(44) (case conference judge not to preside at trial).

M.R. 151/2002; 76/2007; 98/2015

Judge's powers

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.

M.R. 151/2002

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.

M.R. 151/2002

Proceeding commenced by statement of claim

70.27(2)    In a family proceeding commenced by a statement of claim, pleadings consist of the statement of claim, the statement of defence and reply, if any.

M.R. 151/2002

Proceeding commenced by notice of motion to vary

70.27(3)    In a family proceeding commenced by a notice of motion to vary, pleadings consist of the notice of motion to vary.

M.R. 151/2002

Proceeding commenced by notice of application

70.27(4)    In a family proceeding commenced by a notice of application, a notice of application to vary or a notice of application for guardianship, pleadings consist of that notice of application.

M.R. 151/2002

TRIAL RECORD

Contents of trial record

70.28(1)    A trial record in a family proceeding shall contain, in the following order,

(a) a table of contents, describing each document by its content and date;

(b) a copy of the pleadings;

(c) a copy of a request or order for particulars and the particulars delivered in response;

(d) a copy of any order respecting the conduct of the trial;

(e) any other document ordered by a judge at a pre-trial conference or case conference to be included in the trial record.

M.R. 151/2002; 69/2010

Time for filing and serving trial record

70.28(2)     The party who commences the proceeding shall file and serve a trial record within 40 days after a trial date has been set, unless otherwise ordered by a judge.

M.R. 151/2002; 69/2010

USE AT TRIAL OF CROSS-EXAMINATION ON AFFIDAVIT

70.29       In a family proceeding, the cross-examination on the affidavit of a party that is conducted before a trial may be used at the trial in the same manner as that party's examination for discovery.

M.R. 151/2002

AFFIDAVIT EVIDENCE AT TRIAL

Affidavit evidence

70.30(1)    In a family proceeding, the evidence of a witness at a trial may, subject to this rule, be presented by affidavit.

M.R. 151/2002

Personal knowledge required

70.30(2)    Subrule 4.07(2) applies to an affidavit under this rule.

M.R. 151/2002

Time for filing and service

70.30(3)    The affidavit shall be filed and served on any opposing party at least 21 days before the date of the trial.

M.R. 151/2002

Notice to cross-examine at trial

70.30(4)    An opposing party who wishes to cross-examine the deponent of an affidavit filed under this rule shall give notice of the intent to cross-examine to the party filing the affidavit at least 10 days before the date of the trial.

M.R. 151/2002

Deponent to attend at trial

70.30(5)    Where notice is received in accordance with subrule (4), the deponent shall attend at the trial and submit to cross-examination, and where the deponent fails to do so the affidavit shall not be accepted in evidence unless the judge directs otherwise.

M.R. 151/2002

Costs

70.30(6)    Where a deponent is required to attend at trial for cross-examination under subrule (5) and the court is of the opinion that the evidence so obtained does not materially add to the affidavit evidence, the court may order that costs in an appropriate amount be awarded against the party requiring the attendance.

M.R. 151/2002

Limitation to calling evidence

70.30(7)    A party who presents evidence by affidavit under this rule shall not, except with leave of the court, call any additional evidence from the deponent, but this does not limit the party's right to re-examine the deponent on a new matter brought out on cross-examination.

M.R. 151/2002

ORDERS — GENERAL PROVISIONS

Rule 59 not applicable

70.31(1)    Rule 59 (orders) does not apply to an order in a family proceeding.

M.R. 151/2002

Effective date of order

70.31(2)    An order is effective from the date on which it is pronounced, unless it provides otherwise.

M.R. 151/2002

Relief to be claimed

70.31(3)    Subject to subsection 24.3(1) of the Child Support Guidelines Regulation, Manitoba Regulation 58/98, a court shall grant only relief that has been claimed in a pleading and shall deal with each claim for relief by granting an order

(a) for the relief claimed;

(b) dismissing the claim for relief;

(c) adjourning the claim for relief; or

(d) allowing the claim for relief to be withdrawn by a party.

M.R. 151/2002; 92/2005

Interim orders

70.31(4)    An interim order shall deal with all relief claimed in a motion.

M.R. 151/2002

Final orders

70.31(5)    A final order shall deal with all relief claimed in the pleadings.

M.R. 151/2002

Order on which interest payable

70.31(6)    An order for the payment of money on which postjudgment interest is payable shall set out the rate of interest and the date from which interest is payable.

M.R. 151/2002

Titles of orders

70.31(7)    An order shall have one of the following titles:

(a) Divorce Judgment (Form 70O);

(b) Interim Order (Form 70N);

(c) Final Order (Form 70N);

(d) Order (Form 70N), to be used for an order other than one described in this subrule;

(e) Variation Order (Form 70N);

(f) Default Order (Form 70N);

(g) Provisional Order (Form 70N);

(h) Provisional Variation Order (Form 70N);

(i) Confirmation Order (Form 70N);

(j) Recalculated Child Support Order.

M.R. 151/2002; 92/2005

Covering page

70.31(8)    A covering page is not required for an order.

M.R. 151/2002

Content of orders

70.31(9)    An order, other than a recalculated child support order, shall be in Form 70O (divorce judgment) or 70N (order) and shall include

(a) the name of the judge or officer who pronounced it;

(b) the date on which it was pronounced;

(c) a preamble setting out the particulars necessary to understand the order, including

(i) the date of the hearing,

(ii) the name of each party who was present and whether he or she was represented by a lawyer,

(iii) the name of each party who was not present and whether he or she was represented by a lawyer,

(iv) whether the parties consent to the order, or a part of it;

(v) the documents filed in support, and

(vi) any undertaking made by a party as a condition of the order;

(d) the statutory provisions or rules under which the relief is granted; and

(e) the names of persons to be served with the order and the manner of service.

M.R. 151/2002; 92/2005

Content of recalculated child support order

70.31(9.1)  A recalculated child support order must comply with subsection 24.10(2) of the Child Support Guidelines Regulation, Manitoba Regulation 58/98, and include

(a) the name of the support determination officer who pronounced it;

(b) the date on which it was pronounced;

(c) a preamble setting out the particulars necessary to understand the order, including

(i) the date of the child support order being recalculated and the name of the judge who pronounced it, and

(ii) the date of the recalculation order and the name of the judge who pronounced it;

(d) the statutory provisions under which the relief is granted; and

(e) the names of persons to be served with the order and the manner of service.

M.R. 92/2005

Content of variation orders

70.31(10)     In addition to the requirements of subrule (9), but subject to subrules (10.1) and (10.2), a variation order shall include

(a) in the preamble,

(i) the date of the order being varied and the name of the judge who pronounced it, and

(ii) the date of any prior variation order and the name of the judge who pronounced it; and

(b) in the body of the order, the clause of the original order or prior variation order to be deleted or replaced, and the clause to be added, if any.

M.R. 151/2002; 92/2005

Content of certain variation orders respecting recalculated child support orders

70.31(10.1)  Where subsection 39.1(5) of The Family Maintenance Act or subsection 25.1(4) of the Divorce Act (Canada) applies and a party applies for a variation within 30 days after both parties are notified of the recalculation of child support, the variation order shall include

(a) in the preamble

(i) the date of the recalculated child support order and the name of the support determination officer who pronounced it, and

(ii) a statement that subsection 39.1(5) of The Family Maintenance Act or subsection 25.1(4) of the Divorce Act (Canada), as the case may be, applies; and

(b) in the body of the order

(i) the clause of the original order, prior variation order or prior recalculated child support order to be deleted or replaced, and the clause to be added, if any; and

(ii) the effect of the variation order on the recalculated order to which subsection 39.1(5) of The Family Maintenance Act or subsection 25.1(4) of the Divorce Act (Canada) applies.

M.R. 92/2005

Content of orders varying recalculated child support orders

70.31(10.2)  A variation order varying a recalculated child support order shall include

(a) in the preamble, the date of the recalculated child support order and the name of the support determination officer who pronounced it, and

(b) in the body of the order, the clause of the recalculated child support order being deleted or replaced and the new child support provision, if any.

M.R. 92/2005

Standard clauses required for orders in certain Acts and in the Rules

70.31(11)   Subject to subrules (12) and (13), where an order is pronounced under one of the following enactments standard clauses shall be used in the preamble and body of the order:

(a) the Divorce Act (Canada), other than a recalculated child support order;

(b) The Family Maintenance Act, other than a recalculated child support order;

(c) The Family Property Act;

(d) The Law of Property Act;

(e) The Court of Queen's Bench Act or the Rules;

(f) The Reciprocal Enforcement of Maintenance Orders Act or The Inter-jurisdictional Support Orders Act;

(g) Part VII of The Child and Family Services Act (private guardianship of the person and access);

(h) The Child Custody Enforcement Act;

(i) The Domestic Violence and Stalking Act, except a protection order pronounced under that Act.

M.R. 151/2002; 104/2004; 92/2005; 93/2005

Standard clauses required in preamble

70.31(12)   The preamble of an order referred to in subrule (11) shall use standard clauses, unless the order is pronounced under an Act which requires that the preamble be in a different form.

M.R. 151/2002

Exceptions to standard clauses

70.31(13)   A proposed order which contains non-standard wording but under subrule (11) requires standard clauses may be accepted by the registrar if

(a) no standard clauses are appropriate;

(b) the wording of the order conforms as much as possible to the closest applicable standard clause; and

(c) an explanatory note (Form 70V) is filed with the proposed order setting out the reasons for using the non-standard wording.

M.R. 151/2002

Written reasons

70.31(14)   If written reasons for an order are given, a copy of the reasons shall be placed on the court file.

M.R. 151/2002

Enforcement forms

70.31(15)   Subject to subrule (15.1), a completed enforcement information form (Form 70W) shall be provided to the court with the proposed order if a proposed order

(a) grants support under The Family Maintenance Act or The Child and Family Services Act, unless an enforcement opt-out form (Form 70X) in duplicate, is provided to the court with the proposed order signed by the person, or the child and family services agency, as the case may be, who is entitled to receive the payments; or

(b) grants support under any other legislation and orders payments be enforced through the designated officer under Part VI of The Family Maintenance Act.

M.R. 151/2002; 18/2010

No enforcement form required for subsequent order

70.31(15.1)  Subrule (15) does not apply to a subsequent support order if it is made between the same parties in the same proceeding.

M.R. 18/2010

Copy of order given to designated officer

70.31(16)   The registrar shall give the designated officer under Part VI of The Family Maintenance Act

(a) a copy of any order that grants or affects support or its enforcement by the designated officer; and

(b) if subrule (15) applies, the completed enforcement information form (Form 70W) or two copies of the enforcement opt-out form (Form 70X), as the case may be.

M.R. 151/2002; 18/2010

70.32       Repealed.

M.R. 151/2002; 188/2004

PREPARING, SIGNING AND SERVING ORDERS

70.33(1)    Repealed.

M.R. 151/2002; 188/2004

Endorsement by judge or officer on disposition sheet

70.33(2)    The terms of every order shall, at the time the order is pronounced, be endorsed on a disposition sheet, and the disposition sheet shall be signed by the judge or officer pronouncing the order unless

(a) the order is signed by the judge or officer at the time the order is pronounced; or

(b) the circumstances make it impractical to do so.

M.R. 151/2002

Preparation of draft order

70.33(3)    Any party affected by an order may prepare a draft of the order and shall, unless otherwise ordered by the court, send it to all other parties present at the hearing for approval of its form or content, or both.

M.R. 151/2002

Approval of form of order required

70.33(4)    Unless otherwise ordered by the court, if a party to a proceeding

(a) is represented by a lawyer, the order shall be sent to the party's lawyer for approval; and

(b) is not represented by a lawyer, the order shall be sent to the party.

M.R. 151/2002

Approval of form of order not required

70.33(5)    Approval of the form of an order is not required for an order that merely dismisses or adjourns a motion, proceeding or appeal, or allows a party to withdraw a claim for relief, with or without costs.

M.R. 151/2002

Signing orders

70.33(6)    Subject to subrule (7), every order shall be submitted for the signature of the registrar at the place of hearing unless the judge or officer who pronounced the order

(a) signed it; or

(b) directs that it be signed by the judge or officer who pronounced it.

M.R. 151/2002

Signing of order where party not represented by a lawyer

70.33(7)    If a party to a proceeding was not represented by a lawyer, the order shall be submitted to the registrar for the signature of the judge or officer who made it.

M.R. 151/2002

Signing of order where form of order approved

70.33(8)    Where all the parties at the hearing have approved the form of the order, the party who prepared the order shall

(a) file a copy of the order with the approval as to form, of all parties present at the hearing; and

(b) leave the order with the registrar for signing by the registrar, judge or officer, as the case may be.

M.R. 151/2002

Signing of order where approval of form not required

70.33(9)    Where approval of the form of an order is not required under subrule (5), the party who prepared the order shall leave it with the registrar.

M.R. 151/2002

Signing of order where registrar satisfied

70.33(10)   Where the order is to be signed by the registrar and the registrar is satisfied that the order is in proper form, the registrar shall sign the order and return a true copy to the party who left it to be signed.

M.R. 151/2002; 76/2007

Signing of order where registrar not satisfied

70.33(11)   Where the registrar is not satisfied that the order is in proper form, the order shall be returned unsigned to the party who left it to be signed and the party may

(a) submit the order in proper form and, if required by the registrar, file the approval of the parties to the order in that form, together with a copy of the order; or

(b) arrange to have the order settled and signed by the judge or officer who made it.

M.R. 151/2002

Appointment to settle where form of order not approved

70.33(12)   Where approval as to form is not received within a reasonable time, a party may obtain an appointment to have the order settled and signed by the judge or officer who made it.

M.R. 151/2002

Urgent cases

70.33(13)   In a case of urgency, the order may be settled and signed by the judge or officer who pronounced it without the approval of any of the parties who were present or represented at the hearing.

M.R. 151/2002

Settlement by another judge or officer

70.33(14)   Where, after making an order, a judge or officer ceases to hold office, becomes incapacitated, or for any reason unavailable, the order may be settled and signed,

(a) where made by a judge, by another judge; and

(b) where made by an officer, by another officer or a judge.

M.R. 151/2002

Filing of order

70.33(15)   The original copy of every order shall be filed immediately after it has been signed.

M.R. 151/2002

Distribution of divorce judgment

70.33(16)   Upon the signing of a divorce judgment, the registrar shall immediately mail a copy of it to each party, unless otherwise ordered by the judge.

M.R. 151/2002

Service of order for other relief

70.33(17)   A party who obtains an order granting relief other than a divorce shall, within 20 days after the date the order is signed, serve a copy of the order on the other party at such address as the judge directs.

M.R. 151/2002

CHANGES TO ORDERS

Errors or omissions in an order

70.34(1)    An order that

(a) contains an error arising from an accidental slip or omission; or

(b) requires amendment in any particular on which the court did not adjudicate;

may be amended on a motion in the proceeding, and a copy of the order containing the amendment shall be filed.

M.R. 151/2002

Setting aside or suspending an order, etc.

70.34(2)    A party who seeks to

(a) set aside or vary an order on the ground of fraud or facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain relief other than that originally awarded;

may make a motion in the proceeding for the relief claimed.

M.R. 151/2002

SATISFACTION OF ORDER

Notice of satisfaction

70.35(1)    A party may acknowledge satisfaction of an order by a notice of satisfaction (Form 70Y) signed by the party before a witness, or by the party's lawyer, and the document may be filed in the court office where the order was filed.

M.R. 151/2002

Endorsement on order

70.35(2)    Upon filing of a notice of satisfaction under subrule (1), the registrar shall note on the order that notice of satisfaction has been filed.

M.R. 151/2002

APPEAL

70.36       Where an order of the family division is appealed to the Court of Appeal, the appellant shall immediately file a copy of the notice of appeal in the court office from which the order issued.

M.R. 151/2002

VARIATION OF FINAL ORDERS

By motion or application

70.37(1)    Where a final order in a family proceeding may be varied, rescinded or suspended, an order to vary, rescind or suspend may be obtained,

(a) where the proceeding was commenced in Manitoba or transferred to the court from another province, by filing a notice of motion to vary (Form 70H); and

(b) where the proceeding is to vary, rescind or suspend an order made under the Divorce Act (Canada) by a court in another province, by filing a notice of application to vary (Form 70G).

M.R. 151/2002

Affidavit in support

70.37(2)    Every motion or application under subrule (1) except a motion or application referred to in subrule (5) shall be supported by an affidavit stating, where applicable,

(a) the current marital or relationship status of the parties;

(b) the ordinary residence of the parties and the children of the marriage or relationship;

(c) particulars of current custody and access arrangements and particulars of any proposed change;

(d) particulars of current support arrangements and particulars of any proposed change;

(e) the amount of arrears under any prior support order; and

(f) particulars of any change in circumstance of the parties or the children since the date any prior order was made.

M.R. 151/2002

Affidavit made on information and belief

70.37(3)    Subrule 39.01(4) and not subrule 4.07(2) applies to an affidavit made in support of a motion or application under subrule (1).

M.R. 151/2002

Affidavit re spousal or common-law partner support variation

70.37(4)    If the motion or application under subrule (1) is for an order to vary, rescind or suspend spousal or common-law partner support, in addition to the requirements of subrule (2), the affidavit shall include

(a) the date of the last spousal or common-law partner support order with a copy of that order attached to the affidavit;

(b) particulars of current support arrangements and particulars of any proposed change;

(c) particulars of any change in circumstances since the date the support order was made;

(d) the financial circumstances of the parties when the support order was made, with copies of any financial statements filed by the parties in relation to that order;

(e) the total income of the applicant in each year for which the variation, rescission or suspension of support is requested, evidenced by copies of income tax returns and other relevant documentation;

(f) if the applicant is presently unemployed, the length of and reason for the unemployment and the particulars of any efforts to gain employment;

(g) particulars of any expenses the applicant shares with another person;

(h) the current financial circumstances of the applicant with any financial information required by subrule (6);

(i) the amount of arrears under any prior support orders and, if the support was or is payable through a provincial or territorial maintenance enforcement program, with a payment record from the applicable program as to the amount of arrears under the support order; and

(j) if the applicant is in receipt of money from any source, documentation to verify the amount and particulars.

M.R. 151/2002

Affidavit re child support variation

70.37(5)    A motion or application under subrule (1) for an order to vary, rescind or suspend child support shall be supported by an affidavit containing the following information and documents, where applicable:

(a) the date of the last child support order with a copy of that order attached to the affidavit;

(a.1) the date of the last recalculated child support order and the date on which the recalculated child support amount became payable, or would have become payable but for the filing of the notice of motion to vary, with a copy of that order attached to the affidavit;

(b) the ordinary residence of the parties and of the children for whom support is sought;

(c) particulars of current custody arrangements;

(d) particulars of current support arrangements and particulars of any proposed change;

(e) particulars of any change in circumstance since the date the support order was made, unless,

(i) in the case of an order under the Divorce Act (Canada), the order was made before May 1, 1997, or

(ii) in the case of an order under The Family Maintenance Act, the order was made before June 1, 1998;

(f) the financial circumstances of the parties when the support order was made, with copies of any financial statements filed by the parties in relation to that order, unless,

(i) in the case of an order under the Divorce Act (Canada), the order was made before May 1, 1997, or

(ii) in the case of an order made under The Family Maintenance Act, the order was made before June 1, 1998;

(g) any financial information required by subrule (6);

(h) the amount of arrears under any prior support orders, and if the support was or is payable through a court, with a payment record from the applicable provincial maintenance enforcement office as to the amount of arrears under the support order attached to the affidavit;

(i) where the applicant seeks remission of arrears, documentation attached to the affidavit, including tax returns, evidencing the applicant's income in each year in which the remission is sought.

M.R. 151/2002; 92/2005

Financial information required

70.37(6)    Rule 70.05 applies with necessary changes to the financial information required to be filed with a motion or application to vary, rescind or suspend support,

M.R. 151/2002

Affidavit opposing support variation

70.37(7)    Where a respondent wishes to oppose an application or motion to vary, rescind or suspend support, the respondent shall file and serve an affidavit and any financial information required by subrule (8) within 20 days of service of the motion or application.

M.R. 151/2002

Financial information required under subrule (7)

70.37(8)    Subrules 70.07(4) to (8) apply with necessary changes to the financial information required to be filed and served by the respondent under subrule (7).

M.R. 151/2002

Additional financial information required of applicant

70.37(9)    The party applying under subrule (1) shall file and serve any financial information required by subrule (10) that the party has not already filed and served, within 20 days after service of the respondent's affidavit.

M.R. 151/2002

Financial information required under subrule (9)

70.37(10)     Subrules 70.07(4) to (8) apply with necessary changes to the financial information that the party applying under subrule (1) is required to provide under subrule (9).

M.R. 151/2002

Rule 70.09 applies

70.37(11)   Rule 70.09 (provision of financial information and sanctions) applies with necessary changes to proceedings under this rule.

M.R. 151/2002

Original pleadings to be filed

70.37(12)   Before the hearing of an application under clause (1)(b), where the order sought to be varied, rescinded or suspended is granted in a divorce proceeding by a court of another province, copies of the original divorce pleadings and all corollary relief orders shall be filed with the court.

M.R. 151/2002

Service

70.37(13)   A notice of motion to vary or a notice of application to vary shall be served on the respondent in the same manner as a petition under rule 70.06 unless otherwise ordered by the court.

M.R. 151/2002

Copy of order to other court

70.37(14)   Where, under this rule, the court varies, rescinds or suspends an order referred to in clause (1)(b), the registrar shall forward a certified copy of the variation order to the court which made the original order, and to any other court which has varied the original order.

M.R. 151/2002

PROVISIONAL ORDER FOR SUPPORT VARIATIONS UNDER THE DIVORCE ACT (CANADA)

Commencement of proceedings

70.38(1)    Proceedings to obtain a provisional order under section 18 of the Divorce Act (Canada) shall be commenced by filing a notice of application to vary (Form 70G).

M.R. 151/2002

Statement to accompany application

70.38(2)    An application for a provisional order under subrule (1) shall be accompanied by a statement of the applicant providing any available information respecting the identification, location, income and assets of the respondent.

M.R. 151/2002

Transmission of provisional variation order

70.38(3)    Upon the signing of a provisional variation order, the registrar shall as expeditiously as possible send to the Attorney General for the province where the respondent ordinarily resides,

(a) three copies of the provisional order certified by the registrar;

(b) a certified or sworn copy of the material filed in support of the application for provisional relief; and

(c) a statement giving information respecting the identification, location, income and assets of the respondent.

M.R. 151/2002

PROVISIONAL ORDER UNDER THE DIVORCE ACT (CANADA) RETURNED FOR FURTHER EVIDENCE

Notice to applicant

70.39(1)    Where a provisional order made by the court is remitted back for further evidence under subsection 18(5) of the Divorce Act (Canada), the registrar shall as expeditiously as possible give notice to the applicant to submit further evidence.

M.R. 151/2002

Service

70.39(2)    A notice under subrule (1) may be served by regular lettermail.

M.R. 151/2002

Evidence and recommendations to confirming court

70.39(3)    Where further evidence is received under subrule (1), the registrar shall as expeditiously as possible forward to the confirming court a certified or sworn copy of the evidence tendered, together with such recommendations as the court considers appropriate.

M.R. 151/2002

PROVISIONAL ORDER UNDER THE DIVORCE ACT

(CANADA) FROM OTHER COURT RECEIVED FOR CONFIRMATION

Service of documents and notice of hearing

70.40(1)    Where the court receives a provisional order for confirmation under section 19 of the Divorce Act (Canada), the registrar shall as expeditiously as possible cause to be served,

(a) on the respondent, a copy of the documents received from the court that made the provisional order; and

(b) on both parties, a notice of confirmation hearing in Form 70Z.

M.R. 151/2002

Service

70.40(2)    Unless otherwise ordered by the court

(a) the notice of confirmation hearing may be served on the applicant by regular lettermail; and

(b) the notice of application and documents shall be served on the respondent personally or in accordance with subrules 16.03(2) and (3).

M.R. 151/2002

Confirming order

70.40(3)    The order made by the court upon completion of the confirmation hearing shall be prepared and filed in the court by the registrar.

M.R. 151/2002

Forwarding order

70.40(4)    The registrar shall as expeditiously as possible forward a certified copy of the order to

(a) to the Attorney General of Manitoba;

(b) to the court that made the provisional order; and

(c) where the court that made the provisional order is not the court that made the support order, to the court that made the support order.

M.R. 151/2002

Reasons for decision

70.40(5)    Where the confirming order varies or refuses to confirm the provisional order, the registrar shall expeditiously as possible forward a copy of the judge's reasons to the Attorney General and to the court that made the provisional order.

M.R. 151/2002

ATTENDANCE BY TELEPHONE OR OTHER MEANS

70.41       The Rules apply with respect to attendances by parties and their lawyers, other than attendances at case conferences (subrules 70.24(23) to (25)) or pre-trial conferences (clauses 70.26(7)(a) to (c)).

M.R. 151/2002; 98/2015

INTERROGATORIES

70.42       Interrogatories in accordance with Rule 35 are available with respect to a motion or application under subrule 70.03(7) (varying a final order) or an application under subrule 70.03(8) (other relief).

M.R. 151/2002

ENFORCEMENT PROCEEDINGS UNDER THE FAMILY MAINTENANCE ACT

70.43       Rules 53.01 and 53.02 apply, with necessary changes, to the evidence given at an enforcement hearing under section 57 or 59.1 of The Family Maintenance Act.

M.R. 151/2002

NOTICE OF CHANGE OF NAME

Filing and serving notice of change of name

70.44       If a person changes his or her name after a family proceeding to which he or she is a party has been commenced,

(a) the party shall

(i) file a notice of change of name (Form 70AA) before filing a subsequent document in the proceeding, and

(ii) serve the notice on all parties;

(b) the registrar shall amend the title of proceedings accordingly and provide a copy of the notice to the designated officer under Part VI of The Family Maintenance Act.

M.R. 151/2002

Notice by requisition re international child abduction

70.45(1)    With respect to a request for return under the Hague Convention on the Civil Aspects of International Child Abduction, the Family Law Section, Legal Services Branch of the Department of Justice, the Central Authority under the Convention, may, by filing a requisition, give notice as contemplated by article 16 of the Convention of

(a) the alleged wrongful removal or retention of a child; and

(b) an intended application for the return of the child.

M.R. 14/2008; 98/2015

Requisition to open file

70.45(2)    Once the requisition is filed, the registrar shall open a file in the family division with respect to the matter referred to in the requisition if a file does not already exist.

M.R. 14/2008

RULE 70

TABLE OF FORMS

Form 70A Petition for Divorce
Form 70B Petition
Form 70C Acknowledgment of Service
Form 70D Financial Statement
Form 70D.1 Demand for Financial Information
Form 70D.2 Requisition for Case Conference Date
Form 70E Notice of Application
Form 70E.1 Notice of Application for Exclusive Occupation Order
Form 70E.2 Affidavit for Exclusive Occupation Order
Form 70F Notice of Application for Guardianship
Form 70G Notice of Application to Vary
Form 70H Notice of Motion to Vary
Form 70I Affidavit of Service
Form 70J Answer
Form 70K Reply to Answer or Reply to Answer and Petition
Form 70L Notice Withdrawing Opposition
Form 70M Affidavit of Petitioner's Evidence
Form 70N Order
Form 70O Divorce Judgment
Form 70P Certificate of Divorce
Form 70Q Notice of Motion
Form 70R Motion Brief
Form 70S Case Management Information Statement
Form 70S.1 Repealed
Form 70S.2 Repealed
Form 70S.3 Pre-trial Brief
Form 70T Request for Adjournment
Form 70U Summary of Assets and Liabilities
Form 70V Explanatory Note
Form 70W Enforcement Information

Form 70X Enforcement Opt-Out
Form 70Y Notice of Satisfaction
Form 70Z Notice of Confirmation Hearing
Form 70AA Notice of Change of Name

M.R. 151/2002; 69/2010; 271/2014; 98/2015

RULE 71 — ASSESSMENT OF LAWYER'S BILL

TABLE OF CONTENTS

71.01   Application for assessment

71.02   Filing application

71.03   Notice of application

71.04   Affidavit

71.05   Service of application

71.06   No action by lawyer

71.07   Applicable rules

71.08   Powers of the court

71.09   Hearing by a judge

71.10   Hearing by a master

71.11   Confirmed report is court order

71.12   Client's documents

71.13   Cost of unnecessary steps

71.14   Application of Rule

Form 71A Notice of application for assessment of lawyer's bill

M.R. 76/2007

RULE 71

ASSESSMENT OF LAWYER'S BILL

APPLICATION FOR ASSESSMENT

Application for assessment

71.01(1)    A lawyer's client may make an application to the court at any time within six months after receiving the lawyer's bill for an assessment of

(a) that bill; or

(b) a bill previously rendered in respect of the same matter;

by filing a notice of application in Form 71A verified by an affidavit made in accordance with rule 71.04.

M.R. 76/2007

Legal Profession Act prevails

71.01(2)    If the time for filing an application under subrule (1) conflicts with section 53 of The Legal Profession Act, that Act prevails.

M.R. 76/2007

FILING APPLICATION

Family proceedings

71.02(1)    If the lawyer's bill is rendered primarily in connection with a family proceeding within the meaning of section 41 of The Court of Queen's Bench Act, the application shall be filed in the family division.

M.R. 76/2007

Jurisdiction of master

71.02(2)    Subject to subrules (3) and (4), the application shall be made to a master.

M.R. 76/2007

If master not available

71.02(3)    If a master is not available at the judicial centre where the notice of application is filed, the application shall be made to a judge.

M.R. 76/2007

Exception — re unfair contingency contract

71.02(4)    If the application is for a declaration under subsection 55(5) of The Legal Profession Act, the application shall be made to a judge.

M.R. 76/2007

Notice of application

71.03       The notice of application shall set out

(a) as the hearing date, the date obtained from the registrar; and

(b) as the place of hearing, the judicial centre in which the applicant proposes the application to be heard.

M.R. 76/2007

AFFIDAVIT

Affidavit

71.04       The affidavit shall

(a) state the date that the lawyer's bill which is to be assessed was received by the applicant;

(b) set out relevant facts to support the grounds on which the applicant is seeking to have the lawyer's bill assessed; and

(c) include copies of all bills received by the applicant that relate to the assessment, attached as exhibits.

M.R. 76/2007

Service of application

71.05       The notice of application and affidavit shall be served on the respondent lawyer at least 14 days before the date of the hearing.

M.R. 76/2007

NO ACTION BY LAWYER

No action by lawyer

71.06       After being served with a notice of application under rule 71.01 the respondent lawyer shall not commence a proceeding or take a further step in a proceeding relating to the bill that is the subject of the application, until the application is disposed of, except with leave of the court.

M.R. 76/2007

PROCEDURE AND POWERS

Applicable rules

71.07       The following rules apply to the assessment hearing, with necessary changes:

(a) rule 38.08 (hearing by telephone, video conference or other means of communication);

(b) rule 38.12 (dismissal of application for delay).

M.R. 76/2007

Powers of the court

71.08       On hearing an application under this rule, the court has the power to do any one or more of the following:

(a) order the lawyer to deliver a bill to the client;

(b) order the lawyer to provide particulars of a bill already delivered to the client;

(c) specify the time within which a lawyer must comply with clause (a) or (b);

(d) with or without a motion, make an order for security

(i) for payment of the amount which may be found due and owing, or

(ii) for costs;

(e) direct the parties to attend a settlement conference with a judge or master who thereafter must not hear the matter if a settlement is not concluded;

(f) vary or disallow any fee, charge or disbursement included in the lawyer's bill on any ground;

(g) vary or disallow the amount of interest payable on the bill;

(h) award and assess costs in respect of the application;

(i) dismiss the application;

(j) exercise any additional power that is conferred by rule 55 in relation to the conduct of a reference;

(k) make any other order as is just.

M.R. 76/2007

HEARING BY A JUDGE

Order

71.09       If the application is heard by a judge, the judge may make

(a) an order setting out the amount, if any, payable by the client, after taking an account of all payments and credits; and

(b) any other order as is just.

M.R. 76/2007

HEARING BY A MASTER

Report by master

71.10(1)    If the application is heard by a master, the master shall make a report that

(a) contains his or her findings and conclusions;

(b) sets out the amount, if any, payable by the client, after taking an account of all payments and credits; and

(c) sets out a deemed confirmation date determined in accordance with subrule (2).

M.R. 76/2007

Deemed confirmation date

71.10(2)    The deemed confirmation date shall be a date that is 35 days after the date the report is signed by the master.

M.R. 76/2007

Report must be confirmed

71.10(3)    A report under subrule (1) has no effect until it is confirmed.

M.R. 76/2007

Confirmation procedure

71.10(4)    The following rules apply with necessary changes to the procedure to confirm the master's report:

(a) rule 54.08 (entering and serving report);

(b) rule 54.09 (deemed confirmation date);

(c) rule 54.10 (opposing confirmation).

M.R. 76/2007

Report deemed to be confirmed

71.10(5)    The master's report is deemed to be confirmed as of the deemed confirmation date set out in the report unless before the deemed confirmation date, a motion to oppose confirmation is

(a) made to a judge; and

(b) filed and served on each party who appeared at the assessment hearing.

M.R. 76/2007

Motion opposing confirmation

71.10(6)    A judge hearing a motion to oppose confirmation may confirm the report in whole or in part or make such order as is just.

M.R. 76/2007

Confirmed report is court order

71.11       When the report is confirmed it becomes an order of the court.

M.R. 76/2007

CLIENT'S DOCUMENTS

Delivery of documents

71.12       Where

(a) the amount found to be due to the lawyer is paid; or

(b) nothing is found to be due to the lawyer;

the lawyer shall, if required in writing by the client, without delay, deliver to the client all documents in the lawyer's custody or control that belong to the client.

M.R. 76/2007

UNNECESSARY STEPS

Cost of unnecessary steps

71.13       The court may allow the costs of steps taken by the lawyer that

(a) were in fact unnecessary if the court is of the opinion that the steps were taken because, in the lawyer's judgment, reasonably exercised, the steps were conducive to the interest of the client; or

(b) were not calculated to advance the interest of the client if the steps were taken at the request of the client after being informed by the lawyer that they were unnecessary and not conducive to the client's interests.

M.R. 76/2007

APPLICATION OF RULE

Application of Rule

71.14(1)    This Rule applies to an application for an assessment of a lawyer's bill filed on or after September 1, 2007.

M.R. 76/2007

71.14(2)    An application for an assessment commenced before September 1, 2007 and not finally disposed of before that date, shall be dealt with in accordance with Rule 71 as it read immediately before that day as though it had not been replaced.

M.R. 76/2007

RULE 72

APPOINTMENT OF COMMITTEES PASSING OF ACCOUNTS

Application must name respondent

72.01       On an application under section 71 of The Mental Health Act for an order appointing

(a) a committee of property (Form 72A); or

(b) a committee of both property and personal care (Form 72A.1);

the applicant shall name the person for whom the application is made as respondent.

M.R. 146/90; 13/93; 160/99

Bond requirement

72.02       A committee who is required to provide a bond under section 77 of The Mental Health Act shall file a Committee Bond (Form 72B), an Affidavit of Execution of Bond (Form 72C) and, if the order is silent as to security or if the order requires a surety or sureties, an Affidavit of Justification by Surety or Sureties (Form 72D).

M.R. 146/90; 160/99

72.02.1     Repealed.

M.R. 13/93; 160/99

Initial inventory

72.03       An initial inventory of the respondent's property, which the committee is required to file under subsection 85(1) of The Mental Health Act, shall take the form of an Affidavit of Initial Inventory (Form 72E) to which an Initial Inventory (Form 72F) is attached as Exhibit "A". The initial inventory is to include the property and the debts and liabilities of the incapable person as at the date the committee is appointed.

M.R. 146/90; 160/99

Passing of accounts by motion

72.04(1)    Where a committee elects or is required to bring in and pass his or her accounts of the committeeship to the court, the committee shall file a motion in the proceeding seeking an order approving the accounts of the committee and, where applicable,

(a) approving the compensation to be paid to the committee;

(b) approving the legal fees to be paid to the lawyer acting on behalf of the committee.

M.R. 146/90; 160/99

Supporting affidavit on passing of accounts

72.04(2)    A committee filing a notice of motion under subrule (1) shall also file in support an affidavit of the committee stating

(a) the period of the committeeship to which the accounts relate;

(b) the names and last known places of residence of persons, including creditors of the respondent, who have an interest in the property or the affairs of the respondent;

(c) particulars of the accounts of the property as set out in

(i) an Opening Inventory (Form 72G),

(ii) a Statement of Monies Received (Form 72H),

(iii) a Statement of Monies Disbursed (Form 72I),

(iv) a Statement of Assets Sold or Realized and Assets Acquired (Form 72J), and

(v) a Reconciliation and Closing Inventory (Form 72K),

and attached to the affidavit as exhibits;

(d) where compensation to the committee is sought, particulars in respect of the amount of the compensation and the services for which compensation is sought;

(e) where approval of legal fees is sought, particulars of the legal services provided to the committee; and

(f) in the case of a final passing of accounts where the respondent dies during the committeeship, the date of death and proof of appointment of a personal representative.

M.R. 146/90; 160/99

Rule 37 applies to passing of accounts motion

72.04(3)    Subject to this Rule, Rule 37 applies to a motion made under subrule (1).

M.R. 146/90

Service of passing of accounts motion

72.04(4)    Subject to subrule (6), a committee filing a motion under subrule (1) shall serve the Notice of Motion and the supporting affidavit upon the persons who are served with the order appointing the committee, other than the public trustee, and upon the persons who provided consents under clause 72(1)(c) of The Mental Health Act.

M.R. 146/90; 13/93; 98/95; 160/99

Manner of service of passing of accounts motion

72.04(5)    A committee may effect service under subrule (4) by sending a copy of the documents by regular lettermail in which case service is effective on the fifth day after the documents are mailed.

M.R. 146/90; 50/2001

Service on personal representative

72.04(6)    For purposes of subrules (4) and (5), where the respondent dies before the motion is heard, the committee shall serve the personal representative of the deceased respondent, except that where the committee is the personal representative, the committee shall serve the persons who have an interest in the estate.

M.R. 146/90

30           days after service before hearing

72.04(7)    The court shall not hear a motion under subrule (1) on a day sooner than the 31st day following the last day on which service is effected under subrule (4) or (5).

M.R. 146/90

Report and Order: where accounts passed

72.04(8)    Where the accounts of a committee are passed by the court, the judge or master hearing the motion shall issue a Report and Order (Form 72L) confirming approval of the accounts and, where applicable, ordering the payment of compensation and legal fees in such amounts as the judge or master considers appropriate in the circumstances.

M.R. 146/90

Report and Order: where accounts not passed

72.04(9)    Where the accounts of a committee are not passed by the court, the judge or master hearing the motion shall issue a Report and Order (Form 72L) confirming that the accounts are not passed and ordering the committee to serve the Report and Order on such persons as the court indicates in the Report and Order, including the public trustee, and where a master hears the motion, the master shall send a copy of the Report and Order to the judge who referred the motion to the master.

M.R. 146/90

Legal fees: as set out in lawyer's account

72.05       Where a committee on a motion under subrule 72.04(1) seeks approval of the legal fees to be paid to a lawyer acting on behalf of the committee and files with the court a copy of the account of the lawyer, the court may, where the particulars of legal services filed in support of the motion justify payment of legal fees in the amount set out in the account of the lawyer, approve the legal fees in the amount set out in the account.

M.R. 146/90

RULE 73 — PAYMENT INTO AND

OUT OF COURT

TABLE OF CONTENTS

73.01Definitions

73.02Payment into court

73.03Court order — motion to a judge for payment out

73.04When registrar may pay out without a court order

73.05If the parties consent

73.06Payment re security for costs

73.07Payment re garnishment

73.08Payment re Garage Keepers Act

73.09Payment to trustee in bankruptcy

73.10Payment to personal representative of deceased

73.11Payment to child on becoming an adult

73.12Payment to lawyer for a party

73.13Certificate of registrar as to account

73.14Stop order on payment out

73.15Authority of judge if stop order

RULE 73

PAYMENT INTO AND OUT OF COURT

DEFINITIONS

Definitions

73.01       The following definitions apply in this Rule.

"report" means a report of a master under rule 54.06. (« rapport »)

"small claims limit" means the $10,000 limit set by section 3 of The Court of Queen's Bench Small Claims Practices Act, as that amount may be amended from time to time. (« limite en matière de petites créances »)

M.R. 165/2015

PAYMENT INTO COURT

Payment to registrar

73.02(1)    A person who wishes to pay money into court must deliver it to the registrar along with a copy of any order, report, offer to settle or acceptance of an offer to settle under which the money is payable into court.

M.R. 165/2015

Payable to Minister of Finance

73.02(2)    When money is paid by cheque, money order or bank draft, it must be payable to the Minister of Finance.

M.R. 165/2015

Offer to settle or acceptance of offer

73.02(3)    A party who pays money into court under an offer to settle or an acceptance of an offer to settle must immediately serve a notice of payment into court (Form 73A) on every interested party. No reference to the payment or to the notice of payment is to be included in the court file.

M.R. 165/2015

PAYMENT OUT OF COURT

When Is a Court Order Required?

General rule: court order required

73.03(1)    When money has been paid into court, it may be paid out upon a motion being made to a judge seeking an order for payment out of court.

M.R. 165/2015

Exceptions

73.03(2)    A motion is not required if the registrar is authorized to pay the money out under rules 73.04 to 73.08.

M.R. 165/2015

Filing of required documents

73.03(3)    A person seeking an order for payment of money out of court under this rule must file the following documents with the motion:

(a) a copy of any report or order determining entitlement to the money;

(b) an affidavit that meets the requirements of subrule (4); and

(c) any consents required from persons referred to in subclause (4)(c)(ii).

M.R. 165/2015

Affidavit

73.03(4)    The affidavit must state the following:

(a) whether there is a report or previous court order determining who is entitled to the money;

(b) in the case of a report, that the report has been confirmed;

(c) whether, in the case of a report or a previous court order,

(i) the appeal period has expired and no appeal is pending, or

(ii) the appeal period has not expired but all parties affected by the report or order have consented in writing to payment out to the person or persons named in the consent;

(d) whether the person knows of another person with a claim to or interest in the money and, if so, particulars of that claim or interest;

(e) whether the person who paid the money into court or the person to whom it is to be paid is under a disability;

(f) any other evidence necessary to justify an order of payment out.

M.R. 165/2015

Consents must be filed

73.03(5)    The consents referred to in subclause (4)(c)(ii) must be filed with the affidavit.

M.R. 165/2015

Service of motion, affidavit and consents

73.03(6)    The motion, affidavit and any consents under this rule must be served on all interested persons.

M.R. 165/2015

Registrar to pay out in accordance with order

73.03(7)    When an order for payment out has been made under subrule (1), the registrar must pay the money out to the person entitled to it upon

(a) presentation of proof of the order for payment out; and

(b) the filing of an affidavit stating that the appeal period from the order for payment out has expired and no appeal is pending.

However, payment out must be made even if the appeal period from the order for payment out has not expired, if the order for payment out has dispensed with the requirement to file the affidavit referred to in clause (b).

M.R. 165/2015

When garnishment before judgment is set aside

73.03(8)    This rule is subject to subrule 46.14(6) (setting aside garnishment).

M.R. 165/2015

When Can the Registrar Pay Money Out of Court?

Payment by registrar without a court order

73.04       In any of the following cases, the registrar may pay out of court an amount up to the small claims limit without an order of a judge under rule 73.03:

1.  When the parties consent to payment under rule 73.05.

2.  Without the consent of the parties, if

(a) money was paid into court as security for costs and the requirements of rule 73.06 are met;

(b) money was paid into court in garnishment proceedings and the requirements of rule 73.07 are met; or

(c) money was paid into court under The Garage Keepers Act and the requirements of rule 73.08 are met.

M.R. 165/2015

Payment by Registrar When Parties Consent

Payment out if all parties consent

73.05(1)    The parties or their lawyers may consent to payment out of court of money, up to the small claims limit, that was paid into court in the following ways:

(a) under an offer to settle or the acceptance of an offer to settle;

(b) as security for costs;

(c) under a garnishing order;

(d) under section 13 of The Garage Keepers Act.

M.R. 165/2015

Written consent and affidavit

73.05(2)    When there is consent to payment out, a party seeking payment must file the following with the registrar:

(a) written consent from all the parties or their lawyers to the money being immediately paid out to the person or persons specified in the consent;

(b) an affidavit stating

(i) that all parties consent to the payment,

(ii) that neither the party who paid the money into court nor the party to whom it is to be paid is under a disability, and

(iii) that no other person has a claim to or interest in the money.

M.R. 165/2015

Payment

73.05(3)    Upon receiving the required consent and the affidavit, the registrar must pay out, in accordance with the consent, an amount up to the small claims limit, as long as a stop order on the payment has not been made under rule 73.14.

M.R. 165/2015

Payment to insurer

73.05(4)    If a party's insurer has paid money into court on the party's behalf and the affidavit sets out the relevant facts, the insurer may give the consent required by clause (2)(a) on the party's behalf and — when the party is entitled to payment out — the money may be paid out to the insurer.

M.R. 165/2015

Security for Costs — Payment by Registrar Without Consent

Payment by registrar without consent — security for costs

73.06       When money has been paid into court as security for costs and there is no consent to payment out, the registrar may (unless the court orders otherwise) pay out an amount up to the small claims limit to the party entitled to it, if

(a) an affidavit has been filed stating the following:

(i) that the party seeking payment out has obtained a judgment for costs that has not been satisfied,

(ii) that the appeal period for the judgment for costs has expired and no appeal is pending,

(iii) that no other person has a claim to or interest in the money; and

(b) a stop order on the payment has not been made under rule 73.14.

M.R. 165/2015

Garnishment Proceeds — Payment by Registrar Without Consent

Payment by registrar without consent — garnishment proceeds

73.07(1)    When a garnishee named in a notice of garnishment issued under rule 60.08 (garnishment after judgment) has paid money into court and there is no consent to payment out, the registrar may (unless the court orders otherwise) pay out an amount up to the small claims limit to the creditor, if

(a) the creditor has filed an affidavit under subrule (2); and

(b) a stop order on the payment has not been made under rule 73.14.

M.R. 165/2015

Creditor's affidavit

73.07(2)    The creditor's affidavit must state the following:

(a) that the appeal period for the judgment has expired and no appeal is pending;

(b) the amount of the outstanding debt under the judgment given in favour of the creditor;

(c) that the amount the garnishee paid into court is no more than the small claims limit and, in the case of a small claims proceeding, any costs ordered by the small claims court officer or judge;

(d) that at least 10 days have elapsed since

(i) the garnishee made the payment into court, and

(ii) the debtor was served with the notice of garnishment;

(e) with respect to service of the notice of garnishment,

(i) when garnishment is sought by a general creditor, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6),

(ii) when garnishment is sought by a maintenance creditor under section 13.1 of The Garnishment Act, that the notice of garnishment was served on the garnishee in accordance with subrule 60.08(6.1) and that an extra copy of the notice of garnishment was served on the garnishee to be provided to the debtor in accordance with subrule 60.08(6.2),

(iii) when garnishment is sought to enforce a restitution order, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6.3), or

(iv) when garnishment is sought to enforce a forfeited recognizance order or an order imposing a fine, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6.4);

(f) that no other person has a claim to or interest in the money.

M.R. 165/2015

Garage Keepers Act — Payment By Registrar Without Consent

Payment re Garage Keepers Act

73.08(1)    This rule applies when the owner of a vehicle has paid money into court under section 13 of The Garage Keepers Act.

M.R. 165/2015

Payment by registrar without consent

73.08(2)    When there is no consent to payment of the money out of court, the registrar may (unless the court orders otherwise) pay out an amount up to the small claims limit in accordance with this rule.

M.R. 165/2015

Payment to garage keeper

73.08(3)    The registrar may pay out an amount to the garage keeper if

(a) the garage keeper has filed an affidavit stating the following:

(i) the garage keeper has received notice of payment into court under The Garage Keepers Act,

(ii) the amount paid into court,

(iii) that the garage keeper commenced an action in the court following service of the notice of payment under The Garage Keepers Act and judgment was granted in the garage keeper's favour,

(iv) that the appeal period for the judgment has expired and no appeal is pending,

(v) the amount of the judgment that is outstanding,

(vi) that no other person has a claim to or interest in the money,

(vii) that the portion of the money paid into court that does not exceed the judgment should therefore be paid out to the garage keeper or his or her nominee; and

(b) no stop order on the payment has been made under rule 73.14.

M.R. 165/2015

Payment to vehicle owner

73.08(4)    The registrar may pay out an amount to the owner of the vehicle if

(a) the owner has filed an affidavit of service stating that the notice of payment into court required under The Garage Keepers Act has been served on the garage keeper;

(b) the owner has filed an affidavit stating the following:

(i) the amount paid into court,

(ii) that the garage keeper has either

(A) failed to commence an action in the court within 30 days of service of the notice of payment into court under The Garage Keepers Act, or

(B) commenced an action following service of the notice of payment into court, which resulted in the garage keeper being entitled to none or only a portion of the money paid into court, and the appeal period has expired and no appeal is pending,

(iii) that no other person has a claim to or interest in the money,

(iv) that the money not payable to the garage keeper should therefore be paid out to the owner or his or her nominee; and

(c) no stop order on the payment has been made under rule 73.14.

M.R. 165/2015

Payment Out to Trustee in Bankruptcy, Insurer and Others

Payment to trustee in bankruptcy

73.09(1)    Before the registrar pays money out of court on account of a debtor — whether pursuant to a court order under subrule 73.03(7) or under rules 73.05 to 73.08 — a licensed trustee of the debtor's estate acting under the Bankruptcy and Insolvency Act (Canada) may request the registrar, in writing, to pay out the money to the trustee instead of the debtor.

M.R. 165/2015

Affidavit required

73.09(2)    The registrar must pay out the money to the trustee if the trustee has filed an affidavit stating the following:

(a) that the trustee is a licensed trustee under the Bankruptcy and Insolvency Act (Canada);

(b) that the debtor is a bankrupt as a result of the debtor having filed an assignment with the official receiver under the Bankruptcy and Insolvency Act (Canada) or because a receiving order has been made against the debtor under that Act;

(c) that the trustee is acting under the Bankruptcy and Insolvency Act (Canada) as trustee of the debtor's property.

M.R. 165/2015

Payment to personal representative of deceased

73.10       When money is to be paid out of court to a person who has died, the registrar may — whether pursuant to a court order under subrule 73.03(7) or under rules 73.05 to 73.08 — pay out the money to the deceased's personal representative on proof, to the registrar's satisfaction, of

(a) the person's death; and

(b) the authority of the personal representative.

M.R. 165/2015

Payment to child on becoming an adult

73.11       When a person is entitled, on reaching the age of 18, to money paid into court, the registrar may — whether pursuant to a court order under subrule 73.03(7) or under rules 73.05 to 73.08 — pay out the money to the person on the filing of an affidavit proving the person's identity and that he or she has reached the age of 18.

M.R. 165/2015

Payment to lawyer of a person

73.12       Money paid into court may be paid out to the lawyer for the person entitled to it (unless the court orders otherwise) if a consent of the person is filed stating that the person consents to payment directly to the lawyer. But such a consent is not required when payment is made to a lawyer of record for a person under rule 73.06 (security for costs), rule 73.07 (garnishment) or rule 73.08 (Garage Keepers Act).

M.R. 165/2015

GENERAL PROVISIONS

Registrar's certificate required

73.13(1)    Money may be paid out of court only if the registrar has issued a certificate as to the state of the account from which payment is to be made.

M.R. 165/2015

Interest

73.13(2)    Money paid out of court must include any accrued interest, unless the order or consent for payment out provides otherwise.

M.R. 165/2015

Definition of "stop order"

73.14(1)    In this rule and rule 73.15,"stop order" means an order (Form 73B) directing that money paid into court not be paid out except on notice to the person who obtains the stop order.

M.R. 165/2015

Stop order on motion or application

73.14(2)    The court may make a stop order on motion made without notice in a proceeding — or, if no proceeding is pending, on application made without notice — by a person who claims to be entitled to

(a) money paid into court for another person's benefit; or

(b) money that might be paid into court in the future for another person's benefit.

M.R. 165/2015

Undertaking to compensate for damages

73.14(3)    The person seeking a stop order must (unless the court orders otherwise) undertake to abide by any order concerning damages that the court may make if it ultimately appears that granting the stop order has caused damage to another person for which the person who obtained the stop order ought to compensate the other person.

M.R. 165/2015

Authority of judge if stop order

73.15       When a stop order has been made, a judge may — on motion by any person including the person who obtained the stop order, and with notice to all interested persons —

(a) order payment out;

(b) adjourn the hearing of the motion pending disposition of a proceeding in which a claim referred to in subrule 73.14(2) has been made; or

(c) make any other order that is just.

M.R. 165/2015

Note: Rule 73 was reorganized when it was replaced by M.R. 165/2015.  Before that, it had been amended by the following regulations: 150/89; 146/90; 14/94; 42/96; 32/2002; 43/2003; 120/2004; 177/2011.

RULE 74

SURROGATE PRACTICE NON-CONTENTIOUS PROCEEDINGS

REQUESTS FOR PROBATE OR ADMINISTRATION

74.01       Proceedings for probate or administration shall be commenced by a form of request.

PROBATE AND ADMINISTRATION WITH THE WILL ANNEXED

Request for probate

74.02(1)    A request for probate shall be in Form 74A together with supporting material in Forms 74B and 74C.

Request for administration with will annexed

74.02(2)    A request for administration with the will annexed shall be in Form 74D together with supporting material in Forms 74E and 74B.

M.R. 66/2000

Requirement for filing original will

74.02(2.1)  If the person requesting probate or administration with the will annexed files a copy of the will as an exhibit to his or her affidavit, the original will shall be filed along with the request and supporting material.

M.R. 167/2003

Proof of execution of will

74.02(3)     On a request for probate or administration with the will annexed the execution of the will shall be proved by affidavit of one of the subscribing witnesses in Form 74F or otherwise as directed by the court.

Proof to include reading of will

74.02(4)    Where the testator or testatrix executed the will making his or her mark, or where the will was signed for the testator or testatrix by some other person in his or her presence and by his or her direction, the proof shall show that, before its execution, the will was read over to him or her and that he or she had knowledge of its contents and appeared to understand them.

Witness to affidavit

74.02(5)    No affidavit of execution of a will or codicil, and no affidavit of plight, shall be sworn by a witness to the will or codicil before another witness to the will or codicil.

Will to be identified and marked

74.02(6)    The will or a copy of the will shall be identified by the signature of the person requesting probate or administration with the will annexed and shall also be marked as an exhibit to his or her affidavit and to the affidavit proving due execution.

M.R. 167/2003

Identification of pages of will

74.02(7)    Where a will is written upon more than one piece or sheet of paper, unless each sheet is identified by the signatures or initials of the testator or testatrix and subscribing witnesses, the court may require such identification as it deems necessary.

Evidence of names, etc. of beneficiaries, next of kin, etc.

74.02(8)    The court may require evidence of the names, addresses, ages, and relationship to the testator or testatrix of all persons mentioned in the will, and of all next of kin or heirs-at-law of the testator or testatrix; and may order that any or all of these persons be served with a copy of the will and copies of any statutes or parts of statutes that might, in the opinion of the court, affect the interests of those persons.

Interlineations, alterations, etc.

74.02(9)    Interlineations, alterations, erasures, or obliterations in a will that have not been duly attested or initialled by the testator or testatrix and the subscribing witnesses shall not be regarded or included in the probate, unless it is shown by affidavit in Form 74G that they existed in the will before its execution or that they have been rendered valid by republication of the will or by the subsequent execution of a codicil.

Suspicious circumstances

74.02(10)   Where words in a will that might have been of importance have been erased or obliterated or where the appearance of the will indicates an attempted cancellation by burning, tearing, or the like, or where any suspicious circumstances exist, probate shall not be granted until all such matters have been explained to the satisfaction of a judge.

Where will not dated

74.02(11)   Where a will is not dated, or is dated imperfectly, one of the attesting witnesses shall furnish evidence of the date of execution; or where such evidence cannot be obtained, evidence shall be furnished of the execution between two definite dates, and that a search has been made and no will of presumably later date has been found.

Proof in solemn form

74.02(12)    A judge may require that proof shall be made in solemn form.

Lost or destroyed will

74.02(13)   Where probate or letters of administration with the will annexed is sought in the case of a will which has been lost or destroyed, the proof shall be made in solemn form.

Where testator under 18 years of age

74.02(14)   Where the deceased died testate and was under the age of 18 years at the time of execution of the will it shall be shown that he or she was a person to whom subsection 8(1) of The Wills Act applies.

Order where failure to bring in will for probate

74.02(15)   Where an executor fails to bring in a will for probate, any interested person, including a creditor, may apply without notice to a judge for an order in Form 74H to issue calling upon the executor to accept or refuse probate and execution of the will, or to show cause why letters of administration with the will annexed should not be granted to the applicant or to such other person, having prior right thereto, as may be willing to accept it.

No order until 14 days after death

74.02(16)   No order under subrule (15) shall issue until 14 days after the death of the testator or testatrix, unless a judge otherwise directs.

Order for delivery of a testamentary paper

74.02(17)   Any interested person may apply without notice to a judge for an order in Form 74I that a person alleged to have a testamentary paper in his or her possession, power, or control either deliver the paper to the registrar or file an affidavit that he or she does not have the paper in his or her possession, power, or control, and setting forth what knowledge he or she may have respecting the paper.

Probate not to issue for seven days after death

74.02(18)   No probate or letters of administration with the will annexed shall issue until seven days after the death of the testator or testatrix unless a judge otherwise directs.

Form of grant of probate

74.02(19)   All grants of probate or administration with the will annexed shall be in Forms 74J or 74K, as the case requires, signed by the registrar and issued under the seal of the court; and any copy of a will, forming part of, or attached to, the grant, shall be authenticated by the signature of the registrar and the duplicate of the grant and a copy of the will shall be filed with the original request.

M.R. 66/2000

Void gift to beneficiary endorsed on will

74.02(20)   Where, by reason of the fact that a beneficiary, or the spouse or common-law partner as defined in subsection 12(1) of The Wills Act of a beneficiary, witnesses a will, the provisions made therein for that beneficiary are void, that fact shall be endorsed on the will by the registrar; and the endorsement shall appear on the copy of the will attached to the grant.

M.R. 104/2004

Endorsement under subsection 12(3), Wills Act

74.02(21)   Where the court has made an order under subsection 12(3) of The Wills Act to the effect that a beneficial devise, bequest or other disposition or appointment made in a will to a person who witnessed the will or a spouse or common-law partner as defined in subsection 12(1) of that Act of a person who witnessed the will is valid, the registrar shall endorse a note of the order on the will and the endorsement shall appear on the copy of the will attached to the grant.

M.R. 104/2004

DOUBLE PROBATE

Grant of "double probate"

74.03(1)    Where all of the executors named in a will have not requested probate, and the right has been reserved to one or more of them to request probate at some future time, or where an alternative executor is called upon to complete the administration, and, in either case, it is desired to have the appointment of the executor or executors confirmed by the court, the grant for which the request is made shall be termed "double probate".

Request for double probate

74.03(2)    The request for double probate shall state the fact of the original probate having been granted to the original applicant and the reason for the second request.

Original will or copy marked as exhibit

74.03(3)    The will or copy thereof contained in the original grant shall be marked as an exhibit to the affidavit of the person making the request and shall be identified by his or her signature.

Original letters probate surrendered

74.03(4)    The original letters probate shall be surrendered with the request.

ADMINISTRATION

Request for administration

74.04(1)    A request for administration shall be in Form 74L together with supporting material in Forms 74M and 74B.

Manitoba residents with an equal or superior right to renounce

74.04(2)    Subject to subrule (3), upon a request for administration or of administration with the will annexed, all persons habitually resident in Manitoba with an equal or superior right to the administration shall either nominate the person making the request in Form 74N or renounce in Forms 74O or 74P.

Order to persons having prior or equal right to administration

74.04(3)    Where a person having an equal or superior right to administration has neither nominated nor renounced under subrule (2), any interested person, including a creditor, may apply to have an order in Form 74Q, issued calling upon those having prior or equal right to accept or refuse administration; and, in default of a request being made by them, the interested person may file a request.

Grant not to issue for 14 days

74.04(4)     No letters of administration shall issue until after 14 days from the death of the intestate, unless a judge otherwise directs.

Form of administration

74.04(5)    A grant of administration shall be in Form 74R, signed by the registrar and issued under the seal of the court.

ADMINISTRATION OF ESTATE UNADMINISTERED

Request may be made

74.05(1)    Upon the death of the administrator of an estate leaving part of the assets unadministered, a request may be made for a grant of letters of administration of estate unadministered to complete the administration of the estate.

Request for administration

74.05(2)    The request for administration of estate unadministered shall be similar in form to the original request for administration, and shall recite the particulars of the first grant and that the administrator has died leaving part of the assets of the estate unadministered, and the grounds on which the claim to the grant is being made.

Beneficiaries may nominate

74.05(3)    Where the executor of an estate has died intestate and there are no other executors to carry on the administration of the estate, or where the administrator with the will annexed of an estate has died leaving part of the estate unadministered, the beneficiaries under the will may nominate any person to request a grant of administration of estate unadministered with the will annexed, to complete the administration of the estate.

Content of request

74.05(4)    The request shall be similar in form to the original request, and shall recite the facts of the death of the executor or administrator, the names of all the beneficiaries who still have an interest in the estate, and the grounds on which the claim to the grant is being made.

Inventory

74.05(5)    The inventory, upon a request for administration of estate unadministered, shall contain only the unadministered property, with values as of the date of request.

Insertion of "of estate unadministered"

74.05(6)    The words "of estate unadministered" shall be inserted after the words "administrator" wherever it occurs in a request or grant under subrules (1) and (3).

Original grant surrendered

74.05(7)    The original grant shall be surrendered with a request for administration under subrules (1) or (3).

RESEALING AND ANCILLARY GRANTS

Request for resealing of grant of probate

74.06(1)    A request for resealing of a foreign grant of probate shall be in Form 74R.1 together with supporting material in Forms 74R.2 and 74R.3.

M.R. 167/2003

Request for resealing of administration with will annexed

74.06(1.1)  A request for resealing of a foreign grant of administration with will annexed shall be in Form 74R.4 together with supporting material in Forms 74R.2 and 74R.5.

M.R. 167/2003

Request for resealing of administration

74.06(1.2)  A request for resealing of a foreign grant of administration shall be in Form 74R.6 together with supporting material in Forms 74R.2 and 74R.7.

M.R. 167/2003

Evidence for resealing

74.06(2)    The evidence is the same as that required upon a request for probate or administration, except that only assets of the deceased in Manitoba need be shown, and the grant sought to be resealed may be accepted as proof

(a) of death;

(b) in cases of testacy, of the execution of the will and that it is the last will of the deceased; and

(c) in cases of intestacy, that the deceased left no will.

Immoveable property

74.06(3)    Where there is immovable property in Manitoba, it shall be shown that the will was executed in manner and form sufficient to pass immovable property in Manitoba.

REQUEST FOR INFORMATION

Request for additional information

74.06.1(1)  Any interested person, including a creditor, who requires information about

(a) the assets of a deceased; or

(b) a specific asset of the deceased;

beyond what is disclosed in the inventory and valuation of the property of the deceased (Form 74B or 74R.2) may provide a written request to the executor or administrator, setting out the interest of the person and the information requested.

M.R. 167/2003

Response to request

74.06.1(2)   Within 21 days after receiving the request, the executor or administrator shall provide the person making the request with the requested information in writing or a statement in writing refusing to provide the requested information and the reasons for the refusal.

M.R. 167/2003

Court order

74.06.1(3)  The court may, on motion, make an order requiring the executor or administrator to provide the person making the request with the requested information within a specified time, unless the court is satisfied that

(a) the executor or administrator has provided a sufficiently detailed inventory of the assets of the deceased or has disclosed sufficient information about the specified asset of the deceased; or

(b) the request is frivolous, vexatious or made for an improper purpose.

M.R. 167/2003

NOTICE OF UNDISCLOSED ASSET

Notice of undisclosed asset

74.06.2(1)  Any interested person, including a creditor, who believes that the inventory and valuation of the property of the deceased (Form 74B or 74R.2) fails to disclose an asset belonging to the deceased may provide a written notice to the executor or administrator that

(a) provides particulars of the asset; and

(b) requests the executor or administrator to take control of the asset and prepare a new inventory and valuation of the property of the deceased that includes the asset.

M.R. 167/2003

Response to notice

74.06.2(2)  Within 21 days after receiving the notice, the executor or administrator shall provide the person giving the notice with a written response setting out the position of the executor or administrator with respect to the asset in question. The response must contain one of the following statements:

(a) the asset passed by operation of law and does not form part of the deceased's estate;

(b) the asset cannot be located;

(c) the asset did not belong to the deceased at the time of his or her death;

(d) the asset was included in the valuation of the deceased's property but was not specifically mentioned in the inventory;

(e) the executor or administrator was not aware of the asset at the time the inventory was prepared but has now located the asset and undertakes to provide a new inventory and valuation that includes the asset in question.

M.R. 167/2003

Failure to provide response

74.06.2(3)   If the executor or administrator fails to respond within 21 days after receiving the notice, the court may, on motion, order the executor or administrator to respond within a specified time.

M.R. 167/2003

VALUATION OF PROPERTY

Fair market value

74.07(1)    The value of property for probate or administration purposes is the fair market value of the property less the amount of any incumbrances.

Summary inquiry by court

74.07(2)    Where the court has reason to believe that the property of the deceased exceeds in value the sum stated in a request, it may inquire into the matter in a summary way.

MUTLIPLE REQUESTS

74.08       Where two or more requests for a grant are made a judge shall determine on application which shall prevail.

DISTINGUISHING LETTERS IN A NAME

74.09       Where the name of a person referred to in a request or supporting material under this rule contains a distinguishing letter, not being the first letter of a given name, that fact shall be shown in the request and supporting material.

M.R. 66/2000

INDEPENDENT COUNSEL

74.10       The court may require that in appropriate circumstances a party be provided with independent counsel, and that any expenses so incurred may be paid out of the estate.

SECURITY

By bond

74.11(1)    Save as otherwise provided by statute, the security to be given by administrators and foreign executors shall be by bond of a guarantee company or by personal bond and the forms to be used are 74S74T and 74U.

Personal attendance of sureties

74.11(2)    The court may require the personal attendance of the sureties before it for examination.

Surety bond kept by registrar

74.11(3)    The bond shall be kept by the registrar in a separate file as a record of the court.

Sureties be habitual residents

74.11(4)    Personal sureties shall be habitual residents of Manitoba, and shall justify to an amount or amounts that, in the aggregate, equal the amount of the penalty in the bond.

Two sureties required

74.11(5)    Save as otherwise provided by statute, at least two sureties shall be required, unless the court otherwise directs.

Registrar or lawyer not sureties

74.11(6)    Neither a registrar nor the lawyer of the person making a request shall become surety to any such bond.

Notice of amount of surety bond

74.11(7)    Any person interested in an estate, including a creditor, may file a memorandum requiring notice to be given to that person of the amount of the bond; and that person shall then be served with an appointment to inquire into its sufficiency.

New bond may be filed

74.11(8)    The court may, if it disallows the bond, permit a new bond to be filed; but, shall not allow the grant to issue unless it is satisfied that adequate security has been furnished.

Order for further security

74.11(9)    Where a grant has already issued, and it is shown to the satisfaction of the court that the sureties are not sufficient, the court may direct the administrator or foreign executor to furnish further security and, upon default, may revoke or suspend the operation of the grant.

PASSING OF ACCOUNTS AND REMUNERATION

Application by notice

74.12(1)    An application to the court for passing of accounts and remuneration of executors and administrators shall be by notice of application verified by affidavit in Forms 74V and 74W.

Appointment

74.12(2)    Upon filing of the notice of application and affidavit, the court may issue an appointment in Form 74X.

Service of appointment

74.12(3)    The appointment together with true copies of the notice of application and the affidavit and a notice to beneficiaries in Form 74Y shall be served upon those interested in the estate either personally or by an alternative to personal service.

Form and content of accounts

74.12(4)    The accounts shall contain a true and perfect inventory of the whole property in question, and shall include

(a) an inventory and valuation of the original estate, showing how each asset was dealt with, and the present value of, or amount realized from, each asset;

(b) an account of all money received, other than from the realization of original assets or from investments made by the trustee;

(c) an account of all disbursements, other than for investments made by the trustee;

(d) an account of all payments or transfers to beneficiaries of the estate; and

(e) an account, in debit and credit form, showing the totals of the foregoing accounts, all assets remaining on hand and the amount of net gain or loss realized upon investments made by the trustee.

Where income and capital separate

74.12(5)    Where, by the will or an instrument creating any trust estate, income and capital are dealt with separately, the accounts shall be divided so as to show receipts, disbursements and distributions, in respect of income and capital, separately.

Book values on interim accounts

74.12(6)    Upon an interim passing of accounts, book values, rather than actual values, may be shown.

Compensation or Allowance to Executor, etc.

74.12(7)    Upon a passing of accounts, the court may fix the compensation or allowance to be made to the executor, administrator, or trustee under a will for the care, pains, trouble and time expended in and about the estate or trust.

Jurisdiction of master

74.12(8)    The accounts may be passed before, and the remuneration may be fixed by, a master.

Form of order

74.12(9)    An order on passing accounts shall be in Form 74Z.

WILLS DEPOSITED FOR SAFEKEEPING

Sealed envelope, securely sealed

74.13(1)    Every will deposited for safekeeping shall be enclosed in an envelope, securely sealed, upon which shall be endorsed the name and address of the testator or testatrix and of the executor or executors; and the registrar shall mark thereon a memorandum showing the date of deposit, and from whom it was received, and shall forthwith forward those particulars to the registrar in Winnipeg.

Affidavit with will in safekeeping

74.13(2)    Where a will is deposited for safekeeping, by a person other than the testator or testatrix, there shall be deposited with it his or her affidavit stating that the will is in the same plight, state, and condition as when received by him or her from the testator or testatrix.

No inspection or removal of will in safekeeping

74.13(3)    A will deposited for safekeeping shall not, during the lifetime of the testator or testatrix, be inspected or removed from the office of the registrar except by the testator or testatrix in person, or by the order of the court, on application by a lawyer acting under the written authority of the testator or testatrix; and the authority shall be verified by the affidavit of the lawyer.

Delivery of the will after death

74.13(4)    After the death of the testator or testatrix, the will shall be delivered to the executor upon his or her personal application, or to such other person as the court may direct; and the registrar shall take a receipt for the will, and retain a copy of it, compared and certified by him or her.

LAWYERS' FEES AND DISBURSEMENTS IN ESTATE MATTERS

Fees and Disbursements of Lawyer for Personal Representative

Application

74.14(1)    This rule applies in determining the fees and disbursements payable to a lawyer retained by a personal representative when a request for probate or administration is filed in the court on or after January 1, 2013.

M.R. 134/2012

[For additional historical information, see the note after this rule.]

Amounts not included in fees

74.14(2)    In this rule, fees do not include

(a) disbursements which may be allowed to a lawyer in addition to fees; and

(b) compensation to which a lawyer may be entitled as the personal representative.

M.R. 134/2012

Lawyer not to accept excess fees

74.14(3)    The lawyer retained by the personal representative must not accept payment for services to the personal representative or to the estate, except in accordance with this rule.

M.R. 134/2012

Information for Personal Representatives and Beneficiaries Form

Form 74AA served on personal representative and beneficiaries

74.14(4)    The lawyer for the personal representative must serve a copy of Information for Personal Representatives and Beneficiaries (Form 74AA) on

(a) the personal representative; and

(b) each beneficiary whose interest in the estate may be affected by the lawyer's fees or disbursements.

Form 74AA must be served personally, or by an alternative to personal service as set out in rule 16.03, no later than 60 days after the lawyer is retained by the personal representative.

M.R. 134/2012

Fees Based on Total Value of Estate

Total value of estate

74.14(5)    For the purpose of calculating the fees payable to the lawyer retained by the personal representative, the total value of an estate is the total value of all assets of the estate as set out in the request for probate or administration and any amendments, but the following assets are not included in calculating the total value of the estate:

(a) gifts made by the deceased during his or her lifetime;

(b) insurance, annuities and pensions not payable to the estate;

(c) property held in joint tenancy where the beneficial interest is intended to pass by right of survivorship;

(d) the death benefit under the Canada Pension Plan.

M.R. 134/2012

Fees payable to lawyer for the personal representative

74.14(6)    Subject to subrule (7) (reduced fees for lawyer), the fees payable to the lawyer for the personal representative for an estate of average complexity are calculated on the basis of the total value of the estate, as set out in subrule (5), as follows:

(a) 3% on the first $100,000, or the portion of that amount, of the total value of the estate, subject to a minimum fee of $1,500;

(b) 1.25% on the next $400,000, or the portion of that amount, of the total value of the estate;

(c) 1% on the next $500,000, or the portion of that amount, of the total value of the estate;

(d) 0.5% on the total value of the estate over $1,000,000.

M.R. 134/2012

Reduced fees for lawyer

74.14(7)    If the personal representative is

(a) an individual who is a lawyer and, while acting as the personal representative, also acts as the lawyer for the personal representative;

(b) a trust company; or

(c) The Public Trustee of Manitoba;

the lawyer for the personal representative is allowed only 40% of the fees calculated under subrule (6), subject to a minimum fee of $1,500.

M.R. 134/2012

Lawyer's Services for Estates of Average Complexity

Lawyer's services — estate of average complexity

74.14(8)    The fees payable to the lawyer for the personal representative under subrule (6) or (7) are for the following services for an estate of average complexity:

(a) receiving instructions from the personal representative;

(b) giving the personal representative information and advice on matters in connection with the administration of the estate;

(c) reviewing the will or the provisions of The Intestate Succession Act with the personal representative;

(d) receiving information from the personal representative about the following:

(i) the deceased,

(ii) the deceased's death,

(iii) the beneficiaries,

(iv) minors, or

(v) the estate property;

(e) receiving details from the personal representative of the property and debts of the deceased for the purpose of preparing a request for probate or administration, including the following:

(i) the full nature and value of the property of the deceased as at the date of death, including the value of all land and buildings and a summary of outstanding mortgages, leases and any other encumbrances,

(ii) any pensions, annuities, death benefit and any other benefits payable to the estate, and

(iii) any debts owed by the deceased as at the date of death;

(f) preparing necessary documents to obtain probate or administration for the estate, attending on signing documents, filing documents in the court and receiving the probate or administration;

(g) preparing and serving all required notices;

(h) advising and assisting the personal representative in settling debts, including advertising for creditors, if instructed to do so;

(i) preparing declarations of transmission and powers of attorney and related documents for stocks and bonds transferable to the personal representative under the probate or administration, and preparing documents to transfer the stocks and bonds to the persons entitled to them under the will or intestate succession provisions;

(j) preparing transmissions and related documents for land transferable to the personal representative under the probate or administration, and preparing transfers of land and related documents to transfer land to the persons entitled to the land under the will or intestate succession provisions;

(k) advising the personal representative of any trusts required by the will;

(l) advising the personal representative to prepare and file tax returns;

(m) confirming receipt of clearance certificates from the Canada Revenue Agency;

(n) advising the personal representative to provide an accounting to the beneficiaries and a report on the administration of the estate;

(o) requesting approval from the beneficiaries of the compensation for the personal representative and the fees and disbursements of the lawyer for the personal representative;

(p) preparing and obtaining releases, if instructed by the personal representative;

(q) advising and assisting the personal representative in distributing the estate property in accordance with the will or intestate succession provisions.

M.R. 134/2012

Fees for Additional Services

Additional services

74.14(9)    In addition to the fees payable under subrule (6) or (7), the lawyer for the personal representative is also entitled to receive payment for the following services:

(a) appearances in court, in an amount set by the court;

(b) services related to passing the accounts of the personal representative in court under rule 74.12, in an amount set by the court;

(c) acting on the sale of an estate asset;

(d) finding a purchaser of an estate asset;

(e) assisting the personal representative with estate administration duties, including

(i) keeping and preparing the accounts of the personal representative,

(ii) listing and valuing assets and debts, and

(iii) safekeeping, insuring and disposing of estate assets;

(f) advising the personal representative with respect to an estate of above-average complexity;

(g) advising and assisting the personal representative as to ongoing trust administration matters, including

(i) the personal representative's duties,

(ii) the personal representative's powers of sale, investment and encroachment, and

(iii) the allocation of assets as capital or revenue.

M.R. 134/2012

Consenting to Lawyer's Fees and Disbursements

Consenting to lawyer's final fees and disbursements

74.14(10)   On completion of an estate, the lawyer for the personal representative is entitled to be paid the fees and disbursements that the lawyer requests if

(a) all beneficiaries whose interests in the estate may be affected by the lawyer's fees or disbursements

(i) are adults,

(ii) have been served with a copy of Information for Personal Representatives and Beneficiaries (Form 74AA), in accordance with subrule (4),

(iii) have been given an itemized statement setting out the lawyer's fees and disbursements, with the fees and disbursements for the services for an estate of average complexity under subrule (8) set out separately from those for additional services under subrule (9), if any, and

(iv) consent, in writing, to the fees and disbursements requested by the lawyer; and

(b) the personal representative consents, in writing, to the fees and disbursements requested by the lawyer.

M.R. 134/2012

Consenting to interim fees within allowable amount

74.14(11)   The lawyer for the personal representative is entitled to be paid interim fees and disbursements for legal services that have been completed for the estate, if

(a) the requested fees are within the fees allowed under subrule (6) or (7);

(b) all beneficiaries whose interests in the estate may be affected by the lawyer's fees or disbursements

(i) are adults,

(ii) have been served with a copy of Information for Personal Representatives and Beneficiaries (Form 74AA), in accordance with subrule (4), and

(iii) have been given an itemized statement setting out the lawyer's fees and disbursements, with the fees and disbursements for the services for an estate of average complexity under subrule (8) set out separately from those for additional services under subrule (9), if any; and

(c) the personal representative consents, in writing, to the fees and disbursements requested by the lawyer.

M.R. 134/2012

Court Review of Lawyer's Fees and Disbursements

Review of fees and disbursements by court

74.14(12)   Unless the fees and disbursements of the lawyer for the personal representative have been consented to under subrule (10), they are subject to review by the court

(a) on a passing of accounts under rule 74.12; or

(b) on an assessment of fees and disbursements referred to in subrule (13).

M.R. 134/2012

Assessment of fees and disbursements

74.14(13)   A notice of appointment for an assessment of the fees and disbursements payable to the lawyer for the personal representative may be obtained by

(a) the personal representative;

(b) the lawyer for the personal representative; or

(c) a beneficiary whose interest in the estate may be affected by the lawyer's fees or disbursements.

M.R. 134/2012

Rule 58 applies to assessment

74.14(14)   Rule 58 (assessment of costs) applies to an assessment under subrule (13), with necessary changes, except that

(a) the notice of assessment must be served on the persons referred to in subrule (13) at least 30 days before the date of the assessment hearing; and

(b) if a master is available at the centre where the notice of appointment is filed, a master is to assess the fees and disbursements.

M.R. 134/2012

Service of lawyer's statement

74.14(15)   The lawyer for the personal representative must, at least 14 days before the date of the assessment hearing, file and serve on the persons referred to in subrule (13)

(a) an itemized statement, setting out the lawyer's fees and disbursements with the fees and disbursements for the services for an estate of average complexity under subrule (8) set out separately from those for additional services under subrule (9), if any; and

(b) an affidavit setting out the following:

(i) that the lawyer has served a copy of Information for Personal Representatives and Beneficiaries (Form 74AA), as required by subrule (4), on the personal representative and each beneficiary whose interest in the estate may be affected by the lawyer's fees or disbursements,

(ii) the date of service of Form 74AA on each person referred to in subclause (i),

(iii) the fees and disbursements requested by the lawyer,

(iv) the lawyer's fees that are allowable under subrule (6) or (7) with respect to the services referred to in subrule (8),

(v) if the requested fees exceed those payable under subrule (6) or (7), the reasons why increased fees should be allowed.

M.R. 134/2012

Assessing lawyer's fees

74.14(16)   With respect to assessing the fees payable to the lawyer retained by the personal representative, regard must be given to the following:

(a) the complexity of the matter;

(b) the nature of the estate assets relative to the value of the estate;

(c) the time spent and the nature of the services performed by the lawyer;

(d) the results achieved;

(e) any other matters considered relevant by the court.

M.R. 134/2012

Other Fees and Disbursements

Lawyer acting for a person other than personal representative

74.14(17)   A lawyer for any person, other than the lawyer for the personal representative, who attends on an assessment of the fees and disbursements of the lawyer for the personal representative, or on a passing of accounts of the personal representative, may be allowed fees and disbursements, in the discretion of the court.

M.R. 134/2012

Fees and disbursements in contentious proceedings

74.14(18)   In contentious proceedings, a lawyer's fees and disbursements are determined by the court.

M.R. 134/2012

Fees and Disbursements Paid from Estate

Payments of fees and disbursements from estate

74.14(19)   The court may direct payment of fees and disbursements from the estate generally or by, or from funds of the estate belonging to, any legatee, heir, beneficiary or other person interested in the estate.

M.R. 134/2012

Note: Rule 74.14 was reorganized when it was replaced by M.R. 134/2012.  Before that, it had been amended by the following regulations: 66/2000; 167/2003.

SUMMARY ADMINISTRATION OF SMALL ESTATES

74.15(1)    A request and order under section 47 of The Court of Queen's Bench Surrogate Practice Act shall be in Form 74BB and 74CC respectively.

M.R. 66/2000; 167/2003

Service of order

74.15(2)    Unless a judge otherwise directs, the person who is ordered to administer the estate of a deceased under section 47 of The Court of Queen's Bench Surrogate Practice Act shall, within 30 days after the order is made, serve a copy of the order personally or by regular lettermail,

(a) if the deceased had a will, on

(i) all beneficiaries of the deceased, and

(ii) if the person ordered to administer the estate is not the executor named in the will, the executor; or

(b) if the deceased died without a will, all next of kin of the deceased.

M.R. 167/2003

GENERAL

Particulars of grants to be sent to the registrar in Winnipeg

74.16(1)    The list of grants of probate and administration and of revocation thereof required under The Court of Queen's Bench Surrogate Practice Act to be sent by deputy registrars to the registrar in Winnipeg shall contain, in each case, the full name, habitual residence, and occupation of the deceased, the time of death, the date of the grant, the name, habitual residence, and occupation of the executor or administrator, the nature of the grant, and the amount of the estate as given in the request.

Duties of registrar

74.16(2)    The registrar in Winnipeg shall extract, from the lists furnished, particulars of each grant, and shall enter a note thereof, placing it in its alphabetical order under the first letter of the surname of the testator or intestate, in the book kept for that purpose; and the registrar shall also note in that book every revocation; and all lists, copies of wills, returns or revocations, and papers received by the registrar shall be filed and endorsed in like manner as is provided with respect to requests for grant.

RULE 75

SURROGATE PRACTICE CONTENTIOUS PROCEEDINGS

APPLICATION

75.01        This rule applies to surrogate proceedings in solemn form.

CAVEATS

Filing in judicial centre

75.02(1)    A person intending to oppose the issue of a grant of probate or administration may file a caveat in Form 75A in any judicial centre at any time before the grant is issued.

Application despite caveat

75.02(2)    Notwithstanding the filing of a caveat, a request may be made for a grant, but no further proceedings shall be taken on the application without notice to the caveator until the caveat has expired or has been removed.

Notice to caveator

75.02(3)    Where a request for probate or administration has been filed, the registrar shall serve a notice upon the caveator in Form 75B requiring the caveator to make a probate application pursuant to the caveat within 30 days after service of the notice, failing which the registrar shall cancel the caveat.

Court may vacate vexatious caveat

75.02(4)    Where a caveat is filed vexatiously, the court may on application order it to be vacated and may award costs against the caveator.

Court may give directions

75.02(5)    Upon an application to vacate a caveat, the court may give all directions necessary for a trial.

Automatically expires after 12 months

75.02(6)    A caveat remains in force for 12 months and then expires and is of no effect, but a new caveat may be filed from time to time.

PROBATE APPLICATIONS

Interpretation

75.03(1)    In this Rule, "probate application" means an application

(a) for the grant of probate of the will of, or letters of administration of the estate of, a deceased person; or

(b) for the revocation of a grant; or

(c) for an order pronouncing for or against the validity of an alleged testamentary paper;

but does not include a proceeding governed by rule 74.

Commencement of application

75.03(2)    A probate application shall be commenced by notice of application.

Parties

75.03(3)    Each person who is or claims to be entitled to administer the estate under an unrevoked grant of probate or letters of administration, shall be made a party to any application for revocation of the grant.

Joinder of parties

75.03(4)    In an application where the validity of a testamentary paper is questioned, all persons having an interest in upholding or disputing its validity, shall be joined as parties.

Powers of court

75.03(5)    Upon the hearing of the application the court may,

(a) add or remove parties;

(b) give directions in Form 75D; or

(c) give such directions as the court deems fit.

Grant to be returned to registrar pending application for revocation

75.03(6)    In an application for the revocation of a grant of probate or administration,

(a) if the application is made by a person to whom the grant was made, the person shall deliver the grant to the registrar within seven days after the application has been made; or

(b) where a party to the application has possession or control of the grant, the party shall deliver the grant to the registrar within seven days after the party has been served with the notice of application, and

(c) the person to whom the grant was issued shall not act under it without leave of a judge.

Order by registrar

75.03(7)    Where a person fails to comply with subrule (6), the registrar may issue an order in Form 75C calling on the person to deliver the grant to the registrar, and a person against whom the order has been issued shall not take any step in the application without leave of the court until the order has been complied with.

Revocation to be noted on the grant

75.03(8)    Where a grant of probate or administration has been revoked after the hearing of a probate application, the registrar shall endorse on the grant the following:  "Revoked by Order dated the __________ day of ________________, 198___".

RULE 76

SMALL CLAIMS

Application

76.01       This rule applies to claims under The Court of Queen's Bench Small Claims Practices Act.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Interpretation

76.02(1)    Words and expressions used in this rule have the same meaning as they have in The Court of Queen's Bench Small Claims Practices Act.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Definitions

76.02(2)    The following definitions apply in this rule.

"Act" means The Court of Queen's Bench Small Claims Practices Act. (« Loi »)

"registrar" means the registrar of the court and includes a deputy registrar. (« registraire »)

M.R. 258/2014

Commencing Claims

Commencement of claim — Form 76A

76.03(1)    A person making a claim under subsection 6(1) of the Act must

(a) file a Small Claim (Form 76A); and

(b) serve a copy of the claim with a blank copy of a Notice of Appearance (Form 76D), on each defendant, in accordance with section 21 of the Act.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Security for costs by foreign claimants

76.03(2)    For the purpose of section 18 of the Act, a person seeking to file a claim who is habitually resident outside Manitoba must pay into court the amount of $150 for security for costs.

M.R. 258/2014

Proof of service on defendant — Form 76B

76.03(3)    After serving a claim on a defendant, the claimant must file a Declaration of Service (Form 76B) to prove service of the claim on a defendant.

M.R. 258/2014

Order for extension of time for service — Form 76C

76.04       If the court extends the time for service of a claim, or any other document under the Act, the order must be in Form 76C.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Defendant's Notice of Appearance — Form 76D

76.05(1)    A defendant who intends to dispute a claim is entitled to file a Notice of Appearance (Form 76D) setting out his or her intention to appear at the hearing. The notice is to be filed in the court office specified on the notice not later than seven days before the hearing date.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Defendant entitled to be heard

76.05(2)    Despite subrule (1), a defendant who appears at the hearing of a claim but has not filed a Notice of Appearance is entitled to be heard.

M.R. 258/2014

Service of counterclaim

76.06       A defendant who makes a claim against a claimant must

(a) file a counterclaim (Form 76E);

(b) serve a copy of it on each party; and

(c) file a Declaration of Service (Form 76B) to prove service of the counterclaim on each party.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Hearing Claims

Witnesses

76.07(1)    Rule 53.04, including Form 53A, applies, if a party requires the attendance of a person in Manitoba as a witness at a hearing under the Act.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Bench warrant

76.07(2)    A bench warrant to enforce a subpoena under section 8.9 of the Act must only be issued on the order of a judge, provided that an affidavit of personal service of the subpoena on the person required to be a witness is filed indicating the subpoena was personally served at least three days before the date of the hearing.

M.R. 258/2014

Place of hearing of claim

76.08       The hearing of a claim must be held

(a) in the case of a hearing before a judge, at the judicial centre of the court that is nearest to where the defendant resides or carries on business or to where the cause of action arose;

(b) in the case of a hearing before a court officer, at the administrative centre of the court that is nearest to where the defendant resides or carries on business or to where the cause of action arose; or

(c) at another location on which the parties and the judge or court officer agree.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Evidence other than by personal attendance

76.09(1)    The judge or court officer hearing a claim may allow a party or witness to attend a hearing and give evidence by telephone, video conference or other means of communication.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Preliminary approval by registrar

76.09(2)    For the purpose of subrule (1), a party may contact the registrar before the hearing with his or her request. The registrar may grant preliminary approval to a party or witness to attend and give evidence as provided in subrule (1), subject to confirmation by the judge or court officer who is to hear the claim.

M.R. 258/2014

Certificates of Decision

Decision if claimant not at hearing — Form 76F

76.10       If the claimant does not appear at the hearing and the claim is dismissed under clause 20(1)(a) of the Act, the judge or court officer must issue a Certificate of Decision — Claimant Not at Hearing (Form 76F).

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Decision at hearing — Forms 76G and 76H

76.11(1)    After the hearing of a claim, including any counterclaim or set-off, a Certificate of Decision at Hearing must be issued

(a) in Form 76G if it is a decision of a judge; or

(b) in Form 76H if it is a decision of a court officer.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Reasons

76.11(2)    A summary of the reasons for a decision under subrule (1) must be issued when the certificate of decision is issued.

M.R. 258/2014

Setting Aside Decision If Defendant Does Not Appear at Hearing

Application to set aside decision — Form 76I

76.12(1)    For the purpose of subsection 11(1) of the Act, a defendant who did not appear at the hearing of a claim may file an Application to Set Aside Decision (Form 76I) to set aside the decision made under subsection 9(2) of the Act in the defendant's absence.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Security for costs

76.12(2)    At the time of filing an application under subrule (1), the defendant must pay into court the amount of $150 for security for costs.

M.R. 258/2014

Service

76.12(3)    After serving each other party with the application in accordance with subsection 11(4) of the Act, the defendant must file a Declaration of Service (Form 76B) to prove service of the application on each party.

M.R. 258/2014

Order and Notice of Hearing — Form 76J

76.12(4)    An order under clause 11(7)(a) of the Act with respect to a defendant's application to set aside a decision made under subsection 9(2) of the Act must be in Form 76J. If the decision is set aside, the order must include the date and place for a new hearing of the claim.

M.R. 258/2014

Decision after new hearing — Form 76G or 76H

76.13(1)    After a new hearing of a claim under section 11.1 of the Act, a Certificate of Decision at Hearing must be issued

(a) in Form 76G, if it is a decision of a judge; or

(b) in Form 76H, if it is a decision of a court officer.

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Reasons

76.13(2)    A summary of the reasons for a decision under subrule (1) must be issued when the certificate of decision is issued.

M.R. 258/2014

Leave to Appeal and Appeal

Leave to appeal application — Form 76K

76.14(1)    A party who seeks to appeal a decision of a court officer under section 12 of the Act must file an Application for Leave to Appeal and Notice of Appeal (Form 76K).

M.R. 258/2014

[For additional historical information, see the note after rule 76.15.]

Appointment for hearing

76.14(2)    On the filing of an Application for Leave to Appeal and Notice of Appeal, the registrar must issue an appointment setting out the date and place for the hearing by completing the appointment portion of the Application for Leave to Appeal and Notice of Appeal.

M.R. 258/2014

Serving leave application

76.14(3)    After serving the other parties with the Application for Leave to Appeal and Notice of Appeal, the party appealing must file a Declaration of Service (Form 76B) to prove service on the parties.

M.R. 258/2014

Discontinuance of appeal — Form 76L

76.15       A person who wishes to discontinue an appeal from a decision made by a court officer may not do so before the time scheduled for the appeal hearing unless

(a) the person files a Discontinuance of Appeal (Form 76L); and

(b) all parties to the appeal consent in writing to the discontinuance.

M.R. 258/2014

Note: Rules 76.01 to 76.15 were reorganized when they were replaced by M.R. 258/2014.  Before that, they had been amended by the following regulations: 150/89; 146/90; 240/91; 14/94; 120/2006; 76/2007; 88/2008; 60/2012.

Place of hearing

76.15.1     The hearing of an application for leave to appeal or an appeal must be held at the judicial centre of the court nearest to the location where the claim was heard, or at another location agreed to by the parties and the court.

M.R. 258/2014

Evidence other than by personal attendance

76.15.2     Rule 76.09 applies to the hearing of an appeal.

M.R. 258/2014

Certificate of Decision — Leave to Appeal and Appeal Hearing Date — Form 76M

76.15.3     After hearing an application for leave to appeal, the registrar must

(a) issue a Certificate of Decision — Leave to Appeal and Appeal Hearing Date (Form 76M); and

(b) send a copy of the certificate of decision by regular mail to the parties.

M.R. 258/2014

Certificate of Decision on Appeal — Form 76N

76.15.4     After hearing on appeal, the registrar must

(a) issue a Certificate of Decision on Appeal (Form 76N); and

(b) send a copy of the certificate of decision by regular mail to the parties.

M.R. 258/2014

PERSONS UNDER DISABILITY

Representation for persons under disability

76.16       A claim by or against a person under disability shall be commenced, continued or defended on behalf of

(a) a minor, by a litigation guardian;

(b) a person, including a minor, who has been declared mentally incompetent or incapable of managing his or her own affairs, by the person's committee;

(c) a person, including a minor, who is mentally incompetent or incapable of managing his or her own affairs not so declared, by a litigation guardian; or

(d) a person who, pursuant to The Vulnerable Persons Living with a Mental Disability Act, has a substitute decision maker appointed with authority to commence, continue, settle or defend proceedings, by the substitute decision maker;

unless a court officer or a judge orders, or a statute provides, otherwise.

M.R. 88/2008

Litigation Guardians

Court appointment unnecessary

76.17(1)    Any person who is not under disability may, without being appointed by the court, act as the litigation guardian for a claimant or defendant.

M.R. 88/2008

Consent to act as litigation guardian

76.17(2)    The litigation guardian shall file a consent to act as litigation guardian (Form 76O) in which the litigation guardian shall

(a) state that he or she consents to act as litigation guardian for the claimant or defendant, as the case may be;

(b) state the nature of the person's disability;

(c) indicate his or her relationship to the person under disability;

(d) state whether he or she is ordinarily resident in Manitoba;

(e) state that he or she has no interest in the proceeding contrary to that of the person under the disability; and

(f) acknowledge that he or she is aware of his or her personal liability for costs awarded against him or her or against the person under disability.

M.R. 88/2008; 258/2014

Filing consent

76.17(3)    The consent shall be filed at the time of filing a Small Claim (Form 76A) or a Notice of Appearance (Form 76D) or as soon as possible afterwards.

M.R. 88/2008; 258/2014

Claimant requesting litigation guardian for defendant

76.18        If a claimant applies to have a person appointed as a litigation guardian for a defendant, the claimant shall

(a) file a Request for Appointment of Litigation Guardian (Form 76P); and

(b) serve the Request and a copy of the claim immediately

(i) on the defendant, and

(ii) on the person who is the proposed litigation guardian, or if there is no proposed litigation guardian, the Public Guardian and Trustee.

M.R. 88/2008; 258/2014

Court appointing litigation guardian for a party

76.19(1)    Where it appears to a judge or court officer that a party is a person under disability and there is no litigation guardian, the judge or court officer may appoint as a litigation guardian for the party

(a) a person who has no interest contrary to that of the party; or

(b) the Public Guardian and Trustee.

M.R. 88/2008; 258/2014

Information for litigation guardian

76.19(2)    Before an appointment is made under subrule (1), the registrar shall give the proposed litigation guardian, or if there is no proposed litigation guardian, the Public Guardian and Trustee,

(a) a copy of the claim; and

(b) the information referred to in the Request for Appointment of Litigation Guardian (Form 76P) in respect of the claimant or defendant, as the case may be.

M.R. 88/2008; 258/2014

Appointment of Public Guardian and Trustee

76.19(3)    Unless there is some other person willing and able to act, the court shall appoint the Public Guardian and Trustee as litigation guardian for the party.

M.R. 88/2008; 258/2014

Removing or replacing litigation guardian

76.20       A judge or court officer may at any time remove or replace a litigation guardian.

M.R. 88/2008

Powers and Duties of Litigation Guardian or Other Representative

Party in a proceeding

76.21(1)    Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party's litigation guardian, committee or substitute decision maker.

M.R. 88/2008

Attending to interests of person under disability

76.21(2)    A litigation guardian, committee or substitute decision maker shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests.

M.R. 88/2008

Settlement of Claims

Approval of settlement by judge

76.22(1)    No settlement of a claim made by or against a person under disability, whether or not a claim has been commenced, is binding on the person under disability without the approval of a judge.

M.R. 88/2008

No approval of infant settlement under subsection 14(1) of The Public Guardian and Trustee Act in small claims court

76.22(2)    An order confirming the settlement of a claim on behalf of a minor that is under subsection 14(1) of The Public Guardian and Trustee Act shall be governed by Rule 7 (Parties under Disability) and not this rule.

M.R. 88/2008; 258/2014

No decision on consent without judge's approval

76.23(1)    A decision that is governed by this rule may not be made on consent in favour of or against a person under disability without the approval of a judge.

M.R. 88/2008

Material required for approval

76.23(2)    The party requesting a judge's approval for a decision made on consent under subrule (1) shall file and serve the following documents in accordance with subrule (3):

(a) a sworn statement from the litigation guardian, committee or substitute decision maker setting out

(i) the material facts,

(ii) the proposed settlement and the reasons supporting the proposed settlement, and

(iii) the position of the litigation guardian, committee or substitute decision maker in respect of the settlement;

(b) where the person under disability is a minor who is over the age of sixteen years, the minor's consent in writing, unless the judge orders otherwise.

M.R. 88/2008

Service of documents for approval

76.23(3)    The party requesting a judge's approval shall file and serve the documents referred to in subrule (2) at least 10 days before the hearing

(a) on the Public Guardian and Trustee; and

(b) on the other party but where the other party is under disability, on that party's litigation guardian, committee or substitute decision maker.

M.R. 88/2008; 258/2014

Money Payable to Person under Disability

Money payable to person under disability

76.24       Any money payable to a person under disability shall be paid in such manner as directed by a judge or a court officer.

M.R. 88/2008; 60/2012

TABLE OF FORMS

Form 76A Small Claim
Form 76B Declaration of Service
Form 76C Order Extending Time for Service
Form 76D Notice of Appearance
Form 76E Counterclaim
Form 76F Certificate of Decision — Claimant not at Hearing
Form 76G Certificate of Decision at Hearing — Decision of Judge
Form 76H Certificate of Decision at Hearing — Decision of Court Officer
Form 76I Application to Set Aside Decision
Form 76J Order and Notice of Hearing
Form 76K Application for Leave to Appeal and Notice of Appeal
Form 76L Discontinuance of Appeal
Form 76M Certificate of Decision — Leave to Appeal and Appeal Hearing Date
Form 76N Certificate of Decision on Appeal
Form 76O Consent to Act as Litigation Guardian
Form 76P Request for Appointment of Litigation Guardian

M.R. 14/94; 88/2008; 60/2012; 258/2014

RULE 77

PROCEEDINGS UNDER THE EXPROPRIATION ACT (under sec. 38, The Expropriation Act, C.C.S.M. c. E190)

DEFINITIONS

77.01       In this Rule,

"Act" means The Expropriation Act; (« Loi »)

"authority" has the meaning defined in the Act; (« autorité compétente »)

"expert witness" includes any person, other than the owner, giving opinion evidence relating to due compensation payable for land expropriated or for land injuriously affected; (« témoin expert »)

"land" has the meaning defined in the Act; (« bien-fonds »)

"owner" has the meaning defined in the Act. (« propriétaire »)

APPLICATION OF RULES

77.02       The Rules apply to proceedings under The Expropriation Act, except where this Rule expressly or by implication provides otherwise.

COMMENCEMENT OF PROCEEDINGS

File notice of application

77.03(1)    Proceedings for the determination and payment of the due compensation payable for land expropriated or for land injuriously affected as provided by the Act shall be commenced by notice of application filed by an owner or by an authority.

Form of notice of application

77.03(2)    A Notice of application filed by an owner shall be in Form 77A and a notice of application filed by the authority shall be in Form 77B.

SERVICE

By owner

77.04(1)    A notice of application filed by an owner shall be served on the authority and on all other owners of the land.

By authority

77.04(2)    A notice of application filed by an authority shall be served on all owners of the land.

REPLY AND PARTICULARS OF CLAIM

Reply by authority (Form 77C)

77.05(1)    Where there is only one owner, an authority that has been served with a notice of application shall, within 14 days, file and serve on the owner a reply in Form 77C.

Particulars of claim by owner

77.05(2)    Where an owner has been served with a notice of application by an authority or by another owner, the owner so served shall, within 14 days, file and serve on the authority and on all other owners particulars of claim in Form 77D.

Reply by authority (Form 77E)

77.05(3)     Where an authority has been served with particulars of claim, it shall, within 14 days from the day on which the particulars of claim was served on it, or if more than one such particulars of claim was served, the latest day on which any such particulars of claim was served on it, file and serve on all owners a reply in Form 77E.

DISCOVERY OF DOCUMENTS

77.06       A notice for discovery of documents may be given by any party after the proceedings are at issue.

EXAMINATION FOR DISCOVERY

77.07       Examination for discovery may take place or interrogatories be delivered only by leave of the court for which special grounds must be shown.

FACTS, DOCUMENTS, LAW

Not in issue

77.08(1)    Every fact or document upon which a party intends to rely and every point of law which is not in issue shall be admitted in a statement of agreed facts and law to be filed before applying for an appointment for trial.

In issue

77.08(2)    Every fact, document or point of law which is in issue shall be included in a statement of issues of fact and law in dispute to be filed before applying for an appointment for trial.

Direction by judge

77.08(3)    Where it appears to a judge that the pleadings and the statements referred to in subrules (1) and (2) do not sufficiently define the admissions and issues of fact and law between the parties, the judge may, upon motion of one of the parties or of the judge's own motion, direct the parties to prepare admissions and issues, and such issues shall, if the parties differ, be settled by the judge.

EXPERT WITNESSES

Written statement required

77.09(1)    The evidence of an expert witness shall not be received at a trial unless

(a) a full statement of the proposed evidence of the witness has been set out in writing and signed by the proposed expert ;

(b) the original statement has been filed; and

(c) a copy of the statement has been served on the other party or parties,

except where, in a special case, a judge otherwise directs.

Time for filing and serving by applicant

77.09(2)    Within 30 days after the proceedings are at issue the party who served the notice of application shall file and serve on all other parties the statement referred to in subrule (1).

Time for filing and serving by respondent

77.09(3)    Within 14 days after being served with a statement pursuant to subrule (2), a party intending to call an expert witness shall file and serve on all other other parties the statement referred to in subsection (1), including any proposed rebutting evidence.

Rebutting evidence

77.09(4)    A party who intends to rebut proposed evidence in a statement received pursuant to subsection (3) shall, within 14 days after being served with the statement, file and serve on all other parties a supplementary statement, complying with subsection (1), of the proposed rebutting evidence.

OFFERS TO PURCHASE

77.10       An owner shall not, unless in a special case a judge otherwise directs, tender in evidence any offer to purchase the land received from any person other than the authority at any time prior to the expropriation unless notice of intention to call such evidence together with full particulars is served on the authority at least 15 days before the trial date.

FAIR DISCLOSURE REQUIRED

77.11       If at the hearing any party seeks to rely upon evidence which appears to the judge not to have been fairly disclosed as required by the rules, the judge may adjourn the hearing on such terms as to costs or otherwise as is just.

TRIAL

Notice of trial

77.12(1)    After the proceedings are at issue a judge may, upon motion of any party with notice to all other parties, fix a time and place for trial and may direct when and in what manner and upon whom notice of trial is to be served.

Pre-trial requirements

77.12(2)    An appointment for trial will not be granted unless

(a) the pleadings and statements of agreed facts and law, if any, and statement of issues of fact and law in dispute, if any, sufficiently define the admissions and the issues of fact and law in dispute;

(b) examinations for discovery, if permitted, have been completed or waived;

(c) production of documents has been completed or waived;

(d) any application for leave to call more than the number of expert witnesses limited by section 40 of the Act has been completed or waived;

(e) rule 77.09 has been complied with; and

(f) the parties have disclosed to each other a description of comparable lands to which they intend to refer at the trial.

Witnesses, time, documents

77.12(3)    Upon application for an appointment for trial the parties shall inform the court of

(a) the number of witnesses each party proposes to call;

(b) the estimate of the parties of the length of the hearing; and

(c) an indication of the quantity of documents in the case.

ASSESSORS

Appointment by judge

77.13(1)    If it appears to the judge that any case coming on for hearing calls for special knowledge and that it would be desirable on hearing the case to sit with an assessor or assessors, the judge may appoint an assessor or assessors to sit and assist the court at the hearing.

Remuneration

77.13(2)    The court may fix the remuneration for an assessor appointed under subrule (1).

FILING OF OFFER OF COMPENSATION

77.14       An authority may, at any time before the court's determination, file under a sealed cover a statement of the amount of the offer of compensation made by it to the owner, exclusive of any amount in respect of costs, and such statement shall not be opened by the court until after the amount to which the owner is entitled is determined by the court and the time for appeal has expired or the right to appeal waived.

PART XVIII

RULE 78

COMING INTO FORCE

78           These Rules come into force upon the proclamation of The Queen's Bench Act, S.M. 1988-89 c. 4.

TARIFF A

TARIFF OF RECOVERABLE COSTS

DEFINITIONS AND APPLICATION

Definitions

1           The following definitions apply in this Tariff.

"class" means a class of proceeding determined under this tariff as either a Class 1, Class 2, Class 3 or Class 4 proceeding. (« catégorie »)

"class amount" means

(a) the amount that is awarded to a party; or

(b) where a party successfully defends a proceeding,

(i) the amount, if so indicated by the judge, that would have been awarded had the party not been successful, or

(ii) the amount claimed against the party. (« montant de la catégorie »)

M.R. 139/2010

[For additional historical information, see the note after this tariff.]

Non-application to surrogate proceedings under Rule 74

2           This tariff applies to all proceedings, other than those in relation to a surrogate matter under Rule 74.

M.R. 139/2010

[For additional historical information, see the note after this tariff.]

CLASSIFICATION OF PROCEEDINGS

Classification by court

3(1)        The court may direct that a proceeding be in any class which, in the court's discretion, is just.

M.R. 139/2010

[For additional historical information, see the note after this tariff.]

Classes of proceedings other than family proceedings

3(2)        Unless otherwise directed by the court, proceedings, other than family proceedings, shall be classified as follows:

(a) with respect to proceedings, other than those commenced by an application, where the class amount

(i) does not exceed the court's jurisdiction under The Court of Queen's Bench Small Claims Practices Act — Class 1,

(ii) exceeds the court's jurisdiction under The Court of Queen's Bench Small Claims Practices Act, but does not exceed $150,000 — Class 2,

(iii) exceeds $150,000 but does not exceed $500,000 — Class 3,

(iv) exceeds $500,000 — Class 4;

(b) with respect to proceedings commenced by an application — Class 3;

(c) in all other cases — any class which, in the court's discretion, is just.

M.R. 139/2010

Classification of family proceedings

3(3)        Unless otherwise directed by the court, family proceedings shall be classified as follows:

(a) proceedings for custody or access or proceedings of a similar nature, or variations of these proceedings — Class 3;

(b) proceedings for support or variation of support,

(i) where the award does not exceed $1,000 per month — Class 2,

(ii) where the award exceeds $1,000 per month but does not exceed $2,000 per month — Class 3,

(iii) where the award exceeds $2,000 per month — Class 4;

(c) proceedings under The Law of Property Act,

(i) where the equity at issue does not exceed $150,000 — Class 2,

(ii) where the equity at issue exceeds $150,000 but does not exceed $500,000 — Class 3,

(iii) where the equity at issue exceeds $500,000 — Class 4;

(d) family property proceedings, including proceedings under The Family Property Act,

(i) where the value of assets or debts at issue at the hearing does not exceed $150,000 — Class 2,

(ii) where the value of assets or debts at issue at the hearing exceeds $150,000 but does not exceed $500,000 — Class 3,

(iii) where the value of assets or debts at issue at the hearing exceeds $500,000 — Class 4;

(e) in all other family proceedings — any class which, in the court's discretion, is just.

M.R. 139/2010

Classification by court of steps in a proceeding

3(4)         The court may direct that a specific step in a proceeding be in one class and other steps in the proceeding be in other classes.

M.R. 139/2010

COSTS FOR CLASS 1 PROCEEDINGS AND SMALL CLAIMS

Costs — Class 1 proceedings

4(1)        Costs in a Class 1 proceeding shall be assessed as follows:

(a) costs — other than costs for an interlocutory proceeding or to enforce or execute an order — shall be assessed in accordance with section 14 of The Court of Queen's Bench Small Claims Practices Act;

(b) costs for each interlocutory or interim proceeding: $40;

(c) costs for each service after an order is made in relation to enforcing or executing the order: $40 to a maximum of $200.

M.R. 139/2010

[For additional historical information, see the note after this tariff.]

Costs — Small Claims

4(2)        Costs in a claim made under The Court of Queen's Bench Small Claims Practices Act shall be as follows:

(a) costs — other than costs to enforce or execute a judgment that originally was a decision made under The Court of Queen's Bench Small Claims Practices Act — may be awarded by a judge or court officer in accordance with that Act;

(b) costs for each step taken to enforce or execute an order that originally was a decision made under The Court of Queen's Bench Small Claims Practices Act: $40 to a maximum of $100.

M.R. 139/2010

COSTS FOR CLASS 2, 3 AND 4 PROCEEDINGS

Costs — Class 2, 3 and 4 proceedings

5(1)        Costs for Class 2, 3 and 4 proceedings shall be assessed for each class according to the steps taken in the proceeding.

M.R. 139/2010

[For additional historical information, see the note after this tariff.]

Costs for steps in proceedings

5(2)        The costs allowed for each step in a proceeding shall be as follows:

(a) Pleadings (as defined in subsection (3))

This step includes

•   services rendered before pleadings are filed

•   preparing pleadings

•   arranging for service of pleadings

•   considering pleadings of other parties

•   amending pleadings, except an amendment to pleadings made as a consequence of an amendment made by another party

Class 2 — $1,000

Class 3 — $1,500

Class 4 — $2,000

(b) Amendment of Pleadings (as defined in subsection (3))

When a party amends pleadings, each other party may be allowed an amount

•   for considering the amendment

•   for making any consequential amendments to their pleadings

•   for any step that may have to be repeated, in whole or in part

The amount allowed to a party when another party amends pleadings shall be one quarter of the amount allowed under this tariff for the applicable whole step.

(c) Default Judgment (Rule 19)

This step includes

•   attendance to search for defence

•   notices and affidavits

•   preparing and filing judgment

Classes 2, 3 and 4 — $150

(d) Discovery of Documents (Rule 30)

This step includes

•   notices

•   inspection of documents

•   consideration of documents

•   copying documents

This step covers discovery of documents in both directions between two opposite parties.

Class 2 — $500

Class 3 — $1,000

Class 4 — $1,500

(e) Examination for Discovery (Rule 31) and

Interrogatories (Rule 35)

This step includes preparation and covers both examining a party and being examined by an opposing party.

It also covers serving interrogatories and answering interrogatories where interrogatories are used instead of an oral examination, but no additional costs shall be allowed if interrogatories are used in addition to an oral examination.

A successful party may recover this step once from each unsuccessful party, provided that there has been, as between them, at least one examination or one service of interrogatories, but no party may recover this amount more than once from any other party.

Class 2 — $500 per half-day

Class 3 — $750 per half-day

Class 4 — $1,000 per half-day

(f) Examination Before Trial (rule 36.01), Cross-examination on an Affidavit (rule 39.02) and Examination of a Witness Before a Hearing (rule 39.03)

This step includes preparation.

An amount may be allowed under this step

•   to a party on whose behalf an examination is conducted

•   to a party attending to be examined

Class 2 — $500 per half-day

Class 3 — $750 per half-day

Class 4 — $1,000 per half-day

(g) Taking Evidence on Commission (rule 34.07):

This step includes

•   preparation

•   all attendances to take evidence without regard to the number of witnesses

Class 2 — $500 per half-day

Class 3 — $750 per half-day

Class 4 — $1,000 per half-day

(h) Preparing Applications and Motions

This step applies to

•   notices of application

•   notices of motion

•   notices of motion to vary

•   notices of applications to vary corollary relief

This step includes

•   preparing and considering supporting material, including motion briefs or application briefs

•   arranging for service of documents

Class 2 — $1000

Class 3 — $1,500

Class 4 — $2,000

(i) Adjournments

Where an appearance is required in a matter within Class 2, 3 or 4 — $75

(j) Attendance on Uncontested Hearing of an Application, Motion, Motion to Vary or Application to Vary Corollary Relief

Classes 2, 3 and 4 — $200

(k) Attendance on Contested Hearing of an Application, Motion, Motion to Vary or Application to Vary Corollary Relief

Class 2 — $500 per half-day

Class 3 — $750 per half-day

Class 4 — $1,000 per half-day

(l) Uncontested Hearing of an Action to Obtain a Final Order in a Family Proceeding

This step includes

•   all necessary attendances

•   preparing all documents

Classes 2, 3 and 4 — $200

(m) Preparation for Trial of an Action, Application, Motion to Vary or Application to Vary Corollary Relief

This step includes

•   preparation

•   set down

•   attendances to fix or obtain date

•   record

•   notice of trial

•   notice to produce at trial

•   subpoenas

•   brief

Class 2 — $250 per half-day

Class 3 — $350 per half-day

Class 4 — $500 per half-day

(n) Preparing or Answering a Request to Admit or Offer to Settle

Classes 2, 3 and 4 — $150

(o) Lawyer's Fee on a Pre-trial Conference, Other than in a Family Proceeding

This step includes

•   preparing brief

•   first attendance at pre-trial conference

Classes 2, 3 and 4 — $350

Second and subsequent attendances at pre-trial conference, including preparing an additional brief where required, $250 per attendance.

(p) Lawyer's Fee on a Case Conference, Other than in a Family Proceeding

Classes 2, 3 and 4 — $250 per attendance

(q) Lawyer's Fee on a Case Conference or Pre-trial Conference in a Family Proceeding

This step includes preparing documents and attending at conference.

Class 2 — $500 per attendance

Class 3 — $750 per attendance

Class 4 — $1,000 per attendance

(r) Lawyer's Fee at the Trial of an Action

Class 2 — $500 per half-day

Class 3 — $750 per half-day

Class 4 — $1,000 per half-day

In the discretion of the trial judge, a fee may be allowed for a second lawyer, which shall not exceed two-thirds of the fee allowed for the first lawyer.

(s) Assessment of Costs (uncontested)

This step includes preparing, serving and filing bill of costs.

Classes 2, 3 and 4 — $250

(t) Assessment of Costs (contested)

This step includes

•   preparing, serving and filing bill of costs

•   attendance before assessment officer

Classes 2, 3 and 4 — $500

(u) Services Provided after Order Pronounced, Excluding Enforcement, Execution and Examination in Aid of Execution

This step includes attendance to settle terms of order

Class 2 — $150

Class 3 — $250

Class 4 — $300

(v) All Services Provided after Order Pronounced, in Relation to Enforcement and Execution, Except Where Otherwise Provided in this Tariff

Classes 2, 3 and 4 — $500

(w) Examination in Aid of Execution (rule 60.17)

This step includes preparation.

Class 2 — $500 per half-day

Class 3 — $750 per half-day

Class 4 — $1,000 per half-day

M.R. 139/2010

Definition of "pleadings"

5(3)        For the purpose of clauses (2)(a) and (b), "pleadings" means the following:

(a) statement of claim;

(b) petition;

(c) petition for divorce;

(d) statement of defence;

(e) counterclaim;

(f) answer;

(g) answer and petition for divorce;

(h) counterpetition;

(i) reply;

(j) third party notice;

(k) reply to third party notice;

(l) demand for particulars;

(m) particulars.

M.R. 139/2010

OTHER PROCEEDINGS

Proceedings before a master

6           In all proceedings before a master, the amount to be allowed shall be assessed on the same basis as set out in sections 4 and 5 of this tariff for the same or similar services.

M.R. 139/2010

[For additional historical information, see the note after this tariff.]

Combined proceedings

7           Where two or more proceedings between the same parties are consolidated or heard together, unless the court otherwise directs, the proceeding

(a) shall be classified at the higher class; and

(b) only one set of costs shall be awarded.

M.R. 139/2010

[For additional historical information, see the note after this tariff.]

Note: Tariff A was reorganized when it was replaced by M.R. 139/2010.  Before that, it had been amended by the following regulations: 150/89; 146/90; 98/95; 42/96; 158/99; 66/2000; 104/2004.

TARIFF B

TARIFF OF DISBURSEMENTS

1           Unless otherwise directed by the court, the amount of disbursements in a proceeding shall be determined as follows:

(a) attendance money actually paid to a witness who is entitled to attendance money, to be calculated as follows:

(i) for each half-day of necessary

attendance $36.25,

(ii) travel allowance, where the hearing or examination is held,

(A) in the centre in which the witness resides, for each day of necessary attendance $4.35,

(B) within 300 kilometres of where the witness resides, for each kilometre each way between the witness' residence and the place of the hearing or

examination $0.35,

(C) more than 300 kilometres from where the witness resides, the minimum return air fare plus for each kilometre each way from the witness' residence to the airport and from the airport to the place of hearing or examination $0.35,

(iii) overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each

overnight stay $109;

(b) fees or expenses actually paid to the court, a court reporter, official examiner or sheriff under the regulations under The Law Fees and Probate Charge Act;

(c) for service or attempted service of a document, a reasonable amount;

(d) for an examination and transcript of evidence taken on the examination, the amount actually paid, not exceeding the fee payable to an official examiner under the regulations under The Law Fees and Probate Charge Act;

(e) fees or expenses actually paid for the preparation of a plan, model, videotape, film or photograph reasonably necessary for the conduct of the proceeding or a reasonable amount;

(f) fees or expenses actually paid for experts' reports that were supplied to the other parties as required by The Manitoba Evidence Act or these rules and that were reasonably necessary for the conduct of the proceeding or a reasonable amount;

(g) fees or expenses actually paid for investigations, tests, enquiries, examinations and other services performed for the purpose of the proceedings by experts, including all preparation for the purpose of giving evidence and attending to assist in the conduct of the proceedings or a reasonable amount;

(h) for an interpreter for services at the hearing or on an examination, a reasonable amount;

(i) where ordered by the court, travelling and accommodation expenses incurred by a party that, in the discretion of the assessment officer, are reasonable;

(j) for copies of any documents or authorities prepared for or by a party for the use of the court and supplied to the opposite party, a reasonable amount;

(k) for copies of records, appeal books and factums, a reasonable amount;

(l) the cost of certified copies of documents such as orders, birth, marriage, and death certificates, abstracts of title, deeds, mortgages and other registered documents where reasonably necessary for the conduct of the proceeding;

(m) the cost of transcripts of proceedings of courts or tribunals,

(i) where required by the court or the rules, or

(ii) where reasonably necessary for the conduct of the proceeding;

(n) where ordered by the court, for any other disbursement reasonably necessary for the conduct of the proceeding, a reasonable amount in the discretion of the assessment officer;

(o) the cost of goods and services tax actually paid or payable on the lawyer's fees and disbursements allowable under rule 58.05;

(p) the cost of retail sales tax actually paid or payable on the lawyer's fees that are allowable under rule 58.05.

R.M. 150/89; 6/98; 140/2010

December 12, 1988 G. Kroft, J.

Chairman