2nd Session, 41st Legislature
This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.
Bill 224
THE FAMILY LAW REFORM ACT (PUTTING CHILDREN FIRST)
| Bilingual version (PDF) | Explanatory Note |
(Assented to )
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Family Law Act set out in Schedule A is hereby enacted.
Court of Queen's Bench Amendment Act
The Court of Queen's Bench Amendment Act set out in Schedule B is hereby enacted.
Subject to subsection (2), this Act comes into force on the day it receives royal assent.
Coming into force of Schedules
The Schedules to this Act come into force as provided in the coming into force section at the end of each Schedule.
THE FAMILY LAW ACT
TABLE OF CONTENTS
Section
PART 1
INTRODUCTORY PROVISIONS
1 Definitions
2 Best interests of the child
3 Minimizing impact on child
4 Child's views to be considered
5 Court may direct evaluation
6 Resolving disputes
PART 2
DETERMINING PARENTAGE
7 Overview of this Part
DIVISION 1
INTRODUCTORY PROVISIONS
8 Definitions
9 Date of conception
10 Providing reproductive material
11 Parentage to be determined by this Part
12 Donor not automatically parent
DIVISION 2
HOW PARENTAGE IS DETERMINED
13 Parentage presumed if sexual intercourse
14 Parentage if assisted reproduction without a surrogate
15 Declaratory order re parentage — general
16 Declaratory order — surrogacy agreement
17 Declaratory order — posthumous conception
18 Declaratory order — posthumous conception with a surrogate
19 Declaratory order — additional parent
DIVISION 3
GENERAL PROVISIONS
20 Effect of new evidence on a declaratory order
21 Parentage tests
22 No distinction between child born inside or outside marriage
23 Void and voidable marriages
24 Orders filed with Vital Statistics
DIVISION 4
DECLARATORY ORDERS MADE OUTSIDE MANITOBA
25 Definitions
26 Recognition of orders made in Canada
27 Recognition of orders made outside Canada
28 Recognition of findings made outside Manitoba
29 Order filed with Vital Statistics
PART 3
CHILD CUSTODY, ACCESS AND GUARDIANSHIP
DIVISION 1
INTRODUCTORY PROVISIONS
30 Best interests of the child
31 No application during adoption placement period
DIVISION 2
PARENTAL CUSTODY AND ACCESS
32 Joint rights of parents in children
33 Order for custody or access
34 Variation of order for custody or access
35 Non-custodial parent's right to school and medical records
36 Order to locate and apprehend a child
DIVISION 3
GUARDIANSHIP
37 Guardianship order
DIVISION 4
ACCESS BY GRANDPARENTS AND OTHERS
38 Definition "family member"
39 Application for access by grandparents and others
40 Order for access
DIVISION 5
NOTICE OF CHANGE OF RESIDENCE
41 Notice of change of residence
DIVISION 6
RELOCATION
42 Meaning of "relocation"
43 Notice of proposed relocation
44 Relocation unless objection
45 Court order
46 Power of court if multiple proceedings
47 Variation of custody, access or guardianship order
PART 4
CHILD AND SPOUSAL SUPPORT
DIVISION 1
DEFINITIONS
48 Definitions
DIVISION 2
CHILD SUPPORT
49 Duty to support child
50 Duty to provide financial information
51 Child support order
52 If parentage an issue
53 Order to vary, suspend or terminate child support order
54 Child support agreement
DIVISION 3
RECALCULATION OF CHILD SUPPORT PAYMENTS
55 Definitions re recalculation
56 Child support recalculation service
57 Recalculation
58 Prohibiting recalculation
59 Right to object to recalculation
60 Appointing recalculation service
61 Obtaining financial information to recalculate
DIVISION 4
SPOUSAL SUPPORT
62 Definition — "spouse"
63 Application of this Division to certain divorced spouses
64 Duty of mutual support
65 Onus of self-support after separation
66 Duty to provide financial information
67 Effect of separation agreement on support order
68 Spousal support order
69 Factors in making support order
70 Priority of child support
71 Review of spousal support
72 Order to vary, suspend or terminate spousal support order
DIVISION 5
GENERAL SUPPORT MATTERS
73 Matters that may be provided for in support orders
74 Enforcement of support orders
75 Assignment of support orders
76 Compensation for late support payments
77 Order cancelling arrears
78 Regulations
PART 5
MISCELLANEOUS ORDERS RE SPOUSES AND PARTNERS
79 Order of exclusive occupation of family home
80 Order respecting conduct
81 Order to vary or terminate
82 Order of non-cohabitation
83 Finding re length of common-law relationship
PART 6
GENERAL POWERS OF THE COURT
84 Jurisdiction of Queen's Bench and Provincial Court
85 Conduct of proceedings
86 Exclusion of the public or from publication
87 Spouse a compellable witness
88 Reconciliation efforts
89 Appeals
90 Interim order
91 Consent order
92 Incorporating terms of agreement in court order
93 Terms and conditions of orders
94 Review of order
95 Order to provide address
PART 7
MISCELLANEOUS PROVISIONS
96 Offence
97 Regulations
98 No limitation period
99 Rights are additional
PART 8
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMING INTO FORCE
100 Transitional re Family Maintenance Act
101 Transitional re Child and Family Services Act
102 Transitional regulations
103-130 Consequential amendments
131 Repeal
132 C.C.S.M. reference
133 Coming into force
THE FAMILY LAW ACT
PART 1
INTRODUCTORY PROVISIONS
|
Contents 1 Definitions 2 Best interests of the child 3 Minimizing impact on child 4 Child's views to be considered 5 Court may direct evaluation 6 Resolving disputes |
DEFINITIONS
The following definitions apply in this Act.
"common-law partner" means either of two persons who are not married to each other who
(a) have cohabited in a conjugal relationship for a period of at least three years, or for a period of at least one year if they are together the parents of a child; or
(b) together have registered a common-law relationship under The Vital Statistics Act. (« conjoint de fait »)
"common-law relationship" means the relationship between two persons who are common-law partners of each other. (« union de fait »)
"court" means the Court of Queen's Bench (Family Division) or, to the extent that it has jurisdiction under subsection 84(2), the Provincial Court (Family Division). (« tribunal »)
"custody" means the care and control of a child by a parent of the child or a person in loco parentis to the child. (« garde »)
"domestic violence" means domestic violence within the meaning of The Domestic Violence and Stalking Act. (« violence familiale »)
"government" includes an agency of the government. (« gouvernement »)
"marriage-like relationship" means a relationship outside marriage in which two persons live together in a conjugal relationship, and includes a common-law relationship. (« cohabitation maritale »)
"parent" means a parent under Part 2 or an adoptive parent. (« parent »)
"spouse" means a person who is married to another person. (« conjoint »)
"stalking" means stalking within the meaning of The Domestic Violence and Stalking Act. (« harcèlement criminel »)
BEST INTERESTS OF THE CHILD
In making an order under this Act, the most important consideration for the court must be the best interests of the child.
Subsection (1) does not apply to a declaratory order of parentage under Part 2, except an order under section 19 (additional parent).
If a child might be affected by a proceeding under this Act, a court must
(a) consider the impact of the proceeding on the child; and
(b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties.
Child's views to be considered
The court may consider the views and preferences of a child when it is satisfied that the child is able to understand the nature of the proceedings and that doing so would not be harmful to the child.
The court may, if it considers it necessary to determine a child's best interests in a proceeding under this Act,
(a) appoint a family evaluator under section 49 of The Court of Queen's Bench Act or section 20.4 of The Provincial Court Act; or
(b) appoint a social worker or other person to evaluate a matter.
A person appointed under subsection (1) must not have had any previous connection with the parties unless he or she conducted an earlier evaluation of them or is someone to whom each party consents.
If a party refuses to co-operate with a person appointed under subsection (1), the person appointed must report that fact to the court, and the court may draw any inference it considers appropriate.
DISPUTE RESOLUTION
Dispute resolution by the parties
The parties to a dispute must act in a way that strives
(a) to minimize conflict;
(b) to promote co-operation;
(c) to meet the best interests of any child involved in the dispute; and
(d) to the extent the parties consider it appropriate to do so, to resolve the dispute by reaching an agreement through negotiation or another dispute resolution process.
PART 2
DETERMINING PARENTAGE
|
Contents 7 Overview of this Part DIVISION 1 — INTRODUCTORY PROVISIONS 8 Definitions 9 Date of conception 10 Providing reproductive material 11 Parentage to be determined by this Part 12 Donor not automatically parent DIVISION 2 — HOW PARENTAGE IS DETERMINED 13 Parentage presumed if sexual intercourse 14 Parentage if assisted reproduction without a surrogate 15 Declaratory order re parentage — general 16 Declaratory order — surrogacy agreement 17 Declaratory order — posthumous conception 18 Declaratory order — posthumous conception with a surrogate 19 Declaratory order — additional parent DIVISION 3 — GENERAL PROVISIONS 20 Effect of new evidence on a declaratory order 21 Parentage tests 22 No distinction between child born inside or outside marriage 23 Void and voidable marriages 24 Orders filed with Vital Statistics DIVISION 4 — DECLARATORY ORDERS MADEOUTSIDE MANITOBA 25 Definitions 26 Recognition of orders made in Canada 27 Recognition of orders made outside Canada 28 Recognition of findings made outside Manitoba 29 Order filed with Vital Statistics |
This Part sets out how a child's parents are determined depending on the circumstances of the child's conception and birth.
1. For a child conceived by sexual intercourse, parentage is determined under section 13.
2. For a child conceived as a result of assisted reproduction where there is no surrogate, parentage is determined under section 14.
3. For a child conceived as a result of assisted reproduction where there is a surrogacy agreement, parentage is determined by a court order under section 16.
4. If reproductive material or an embryo was provided by a deceased person, parentage of a child conceived after the person's death is determined by a court order under section 17 or 18.
In some cases of assisted reproduction, there may be an agreement between the birth mother and others that the child is to have more than two parents. Section 19 allows the court to make an order to that effect if it is in the best interests of the child.
This Part also contains general provisions respecting parentage, including such things as genetic testing and the recognition of declaratory orders and findings of parentage made outside Manitoba.
DIVISION 1
INTRODUCTORY PROVISIONS
The following definitions apply in this Part.
"assisted reproduction" means a method of conceiving a child other than by sexual intercourse, such as by artificial insemination or in vitro fertilization. (« procréation assistée »)
"birth mother" means a person who gives birth to a child, regardless of whether her own reproductive material was used in the child's conception. (« mère naturelle »)
"child" includes a child over the age of 18. (« enfant »)
"donor" means a person who provides reproductive material or an embryo for use in assisted reproduction, other than for his or her own reproductive use. (« donneur »)
"embryo" means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being. (« embryon »)
"intended parent" or "intended parents" means a person who intends, or two persons who are married or in a marriage-like relationship who intend, to be the parent or parents of a child and who, for that purpose, make an agreement
(a) described in section 16 with a surrogate; or
(b) under subsection 19(2) (additional parent). (« parent potentiel » et « parents potentiels »)
"reproductive material" means a human sperm or ovum or another human cell or a human gene, and includes a part of any of them. (« matériel reproductif »)
"surrogate" means a birth mother who is a party to an agreement described in section 16. (« mère porteuse »)
A child born as a result of assisted reproduction is deemed to have been conceived on the day the reproductive material or embryo was implanted in the birth mother.
Providing reproductive material
A reference in this Part to a person providing reproductive material or an embryo is a reference to the provision of
(a) the person's own reproductive material; or
(b) an embryo created with the person's own reproductive material.
Parentage to be determined by this Part
For all purposes of the law of Manitoba, the following rules apply:
1. A person is the child of his or her parents.
2. A child's parent is a person determined to be the child's parent under this Part or The Adoption Act.
3. The relationship of parent and child and kindred relationships flowing from that relationship must be determined under this Part.
4. A child has only two parents unless there is a court order under section 19.
References in enactments and instruments
If an enactment or an instrument refers to a person by describing the person's relationship to another by birth, blood or marriage, the reference must be read to include a person who comes within that relationship because of a parent-child relationship as determined under this Part.
Despite subsections (1) and (2), this Part must not be interpreted as affecting an instrument, or a disposition of property, made before this Part comes into force.
If a child is adopted, the child's parents are as set out in The Adoption Act and this Part does not apply.
Donor not automatically parent
When a child is born as a result of assisted reproduction, a donor who provided reproductive material or an embryo
(a) is not, by reason only of the donation, the child's parent;
(b) may not be declared by a court, by reason only of the donation, to be the child's parent; and
(c) is the child's parent only if determined, under this Part, to be the child's parent.
DIVISION 2
HOW PARENTAGE IS DETERMINED
PARENTAGE PRESUMED IF SEXUAL INTERCOURSE
Parentage if sexual intercourse
On the birth of a child conceived by sexual intercourse, the child's parents are the birth mother and the child's biological father.
Unless the contrary is proved, a male person is presumed to be a child's biological father in any of the following circumstances:
1. He was married to or in a marriage-like relationship with the child's birth mother on the day of the child's birth.
2. He was married to the child's birth mother and, in the 300-day period before the child's birth, the marriage was ended
(a) by his death;
(b) by a judgment of divorce; or
(c) as referred to in section 23 (void or voidable marriage).
3. He was in a marriage-like relationship with the child's birth mother and, in the 300-day period before the child's birth, the relationship ended for any reason.
4. He married the child's birth mother after the child's birth and acknowledged that he is the father.
5. He and the child's birth mother have acknowledged in writing that he is the child's father.
6. He has been found or recognized by a court, whether in Manitoba or otherwise, to be the child's father in a proceeding other than under this Part.
No presumption in certain cases
If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made.
PARENTAGE IF ASSISTED REPRODUCTION
WITHOUT A SURROGATE
Parentage if assisted reproduction without a surrogate
On the birth of a child conceived through assisted reproduction without a surrogate, the child's birth mother is a parent of the child.
In addition to the child's birth mother, a person who was married to or in a marriage-like relationship with the birth mother when the child was conceived is also a parent of the child unless there is proof that, before the child was conceived, the person
(a) did not consent to be the child's parent; or
(b) withdrew a consent to be the child's parent.
Exception re posthumous conception
This section does not apply if conception took place posthumously as described in section 17.
DECLARATORY ORDER RE PARENTAGE — GENERAL
Declaratory order respecting parentage — general
Subject to sections 16 to 19 (which make express provision for certain cases of assisted reproduction), any person who has an interest may apply to the court for a declaratory order that a person is or is not a parent of a child, whether born or unborn.
Notice of an application must be given to the Director of Child and Family Services under The Child and Family Services Act for the purpose of ensuring that the child has not been placed for adoption.
No hearing if child placed for adoption
The court must not hear an application under this section if, in response to a notice under subsection (2), the Director certifies to the court that
(a) the child has been placed for adoption; and
(b) more than 21 days have elapsed since a parent of the child consented to the child's adoption under The Adoption Act or signed a voluntary surrender of guardianship under The Child and Family Services Act.
If the court finds that a person is or is not a parent of a child, the court may make a declaratory order to that effect.
Order if child or parent deceased
The court may make a declaratory order under this section despite the death of the child or person who is the subject of the application, or both.
When an application concerns a child conceived by sexual intercourse or through assisted reproduction under section 14 (without a surrogate), the court
(a) must give effect to any applicable presumption or rule set out in sections 13 and 14;
(b) may consider evidence of the biological paternity of a child conceived by sexual intercourse; and
(c) may consider evidence as to whether there was consent to parentage under subsection 14(2) if the child was born as a result of assisted reproduction.
DECLARATORY ORDER — SURROGACY AGREEMENT
The intended parent or intended parents under a surrogacy agreement may apply to the court for a declaratory order that they are the parent or parents of a child born to the surrogate.
Conditions for making an order
The following conditions must be met before an order is made:
1. Before the child was conceived through assisted reproduction, an agreement was made between a potential surrogate and the intended parent or intended parents.
2. The agreement provides that the potential surrogate will be the birth mother of a child conceived through assisted reproduction and that, on the child's birth,
(a) the surrogate will not be a parent of the child;
(b) the surrogate will surrender the child to the intended parent or intended parents; and
(c) the intended parent or intended parents will be the child's parent or parents.
3. The intended parent, or one or both intended parents, provided reproductive material or the embryo used in the assisted reproduction.
An application must be made within 30 days after the child is born, unless the court extends the time.
The court must grant the order sought under this section if it is satisfied that
(a) the conditions set out in subsection (2) have been met;
(b) before the child was conceived, no party to the surrogacy agreement withdrew from the agreement; and
(c) after the child's birth,
(i) the surrogate gave written consent to surrender the child to the intended parent or intended parents, and
(ii) the intended parent or intended parents took the child into their care.
Surrogate's consent may be waived
The court may waive the surrogate's consent required under subclause (4)(c)(i) if the surrogate
(a) is deceased or incapable of giving consent; or
(b) cannot be located after reasonable efforts have been made to locate her.
Agreement not evidence of consent
An agreement under subsection (1) is not consent for the purposes of subclause (4)(c)(i) but may be used as evidence of the parties' intentions respecting the child's parentage.
DECLARATORY ORDER — POSTHUMOUS CONCEPTION
A person who was married to or in a marriage-like relationship with a deceased person referred to in subsection (2) at the time of death may apply to the court for a declaratory order that he or she and the deceased person are the parents of a posthumously conceived child, whether born or unborn.
| ExampleA dying man wishes to father a child. He banks his sperm so that his female spouse or partner can use it to conceive a child after he dies.
ExampleTwo females, A and B, are married or in a marriage-like relationship. A is dying and wishes to be the parent of a child. She provides an egg that is subsequently fertilized by a sperm donor, and the resulting embryo is implanted in B after A's death. |
Conditions for making an order
The following conditions must be met before an order is made:
1. The child was conceived through assisted reproduction without a surrogate.
2. The deceased person who provided the reproductive material or embryo used in the assisted reproduction did so for his or her own reproductive use and died before the child was conceived.
3. There is proof that the deceased person
(a) gave written consent allowing his or her spouse or other person with whom the deceased was in a marriage-like relationship to use his or her reproductive material or embryo after the deceased's death;
(b) gave written consent to be the parent of a child conceived after the person's death; and
(c) did not withdraw either consent before death.
An application must be made within 30 days after the child is born, unless the court extends the time.
The court must grant the order sought under this section if it is satisfied that the conditions set out in subsection (2) have been met.
DECLARATORY ORDER — POSTHUMOUS
CONCEPTION WITH A SURROGATE
A person who was married to or in a marriage-like relationship with a deceased person at the time of death may apply to the court for a declaratory order that he or she and the deceased person are the parents of a posthumously conceived child born to a surrogate.
| ExampleA dying man wishes to father a child. He banks his sperm so that it can be used to conceive a child after he dies. His female spouse or partner cannot carry a child herself so she uses the sperm to conceive a child, after his death, with a surrogate. |
Conditions for making an order
The following conditions must be met before an order is made:
1. There is a surrogacy agreement that meets the requirements of subsection 16(2).
2. An intended parent who provided reproductive material or an embryo for use in the child's conception died before the child was conceived by way of a surrogate.
3. There is proof that the deceased person consented as required by item 3 of subsection 17(2).
An application must be made within 30 days after the child is born, unless the court extends the time.
The court must grant the order sought under this section if it is satisfied that
(a) the conditions set out in subsection (2) have been met;
(b) the deceased intended parent provided reproductive material or an embryo that was used in the child's conception;
(c) before the child was conceived, no party to the surrogacy agreement withdrew from the agreement; and
(d) after the child's birth,
(i) the surrogate gave written consent to surrender the child to the intended parent, and
(ii) the intended parent took the child into his or her care.
DECLARATORY ORDER — ADDITIONAL
PARENT
On application, a court may make a declaratory order that a child conceived through assisted reproduction has an additional parent.
|
Example — Two females, A and B, are married or in a marriage-like relationship. A male friend provides A with sperm to conceive a child. A and B make an agreement with the male friend that when the child is born all three of them will be the child's parents. Example — A birth mother agrees to carry a child for a couple who intend to be the child's parents. The birth mother and the intended parents make an agreement that when the child is born all three of them will the child's parents. |
An order may be made only if there is an agreement that meets these requirements:
1. It is made before a child is conceived through assisted reproduction.
2. It is made between
(a) the birth mother, the birth mother's spouse or person with whom she is in a marriage-like relationship, and a person who will provide reproductive material or an embryo; or
(b) the birth mother and the intended parent or intended parents if at least one intended parent will provide reproductive material or an embryo.
3. It provides that the potential birth mother will be the birth mother and that, on the child's birth, the parties to the agreement intend to be the child's parents.
Any party to an agreement may apply to court for a declaratory order respecting the parentage of the child.
If a party to an agreement dies after the child is conceived but before a declaratory order is made respecting the child's parentage, any other party may make or continue an application under this section seeking a declaratory order that includes the deceased party to the agreement as a parent.
An application must be made within 30 days after the child is born, unless the court extends the time.
The court may grant the order sought under this section if it is satisfied that
(a) there is an agreement that complies with subsection (2);
(b) before the child was conceived, no party to the agreement withdrew from the agreement; and
(c) the order is in the child's best interests.
DIVISION 3
GENERAL PROVISIONS
Effect of new evidence on a declaratory order
On application, the court may confirm or set aside a declaratory order that was made under this Part, or make a new order, if evidence that was not available at the previous hearing becomes available.
Rights and property interests not affected
Setting aside an order under subsection (1) does not affect rights and duties that have already been exercised or interests in property that have already been distributed.
Definition — "parentage tests"
In this section, "parentage tests" means tests used to identify inheritable characteristics, including
(a) human leukocyte antigen tests;
(b) tests of the deoxyribonucleic acid (DNA); and
(c) any other test the court considers appropriate.
At the request of a party to an application under this Part, the court may make an order granting leave to have a tissue or blood sample, or both, taken from a named person for the purpose of conducting parentage tests and to submit the results in evidence.
No tissue or blood sample may be taken from a person without the person's consent.
If a person named in an order under subsection (2) is too young to consent, consent may be given by the person's parent or guardian.
If a person refuses to give a tissue or blood sample for the purpose of conducting parentage tests or if a required consent is not given, the court may draw any inference it considers appropriate.
An order under subsection (2) may require a party to pay all or part of the cost of the parentage tests.
No distinction between child born inside or outside marriage
There is no distinction between the status of a child born inside marriage and a child born outside marriage.
For the purposes of this Part, if a marriage between two people is void but
(a) one or both of them went through the form of marriage in good faith; and
(b) they lived together afterwards;
they are deemed to have been married during the period they were living together, and the marriage is deemed to have ended when they stopped living together.
For the purposes of this Part, if a voidable marriage is declared a nullity, the persons who went through the form of marriage are deemed to have been married until the date of the declaratory order of nullity.
Orders to be filed with Vital Statistics
The registrar or clerk of the court must file in the office of the Director of Vital Statistics a statement respecting every declaratory order of parentage made under this Part.
Acknowledgment of paternity may be filed
A written acknowledgment of paternity referred to in item 5 of subsection 13(2) may be filed in the office of the Director of Vital Statistics.
DIVISION 4
DECLARATORY ORDERS MADE
OUTSIDE MANITOBA
The following definitions apply in this Division.
"extra-provincial declaratory order" means an order of an extra-provincial tribunal that declares whether a person is a child's parent. (« ordonnance déclaratoire extraprovinciale »)
"extra-provincial finding" means a finding as to whether a person is a child's parent that is made incidentally in the determination of another issue by an extra-provincial tribunal, and that is not an extra-provincial declaratory order. (« décision extraprovinciale »)
"extra-provincial tribunal" means a court or tribunal, outside Manitoba, that has authority to make
(a) orders declaring whether a person is a child's parent; or
(b) findings as to whether a person is a child's parent. (« tribunal extraprovincial »)
Recognition of Canadian extra-provincial declaratory orders
Subject to subsection (2), a court must recognize an extra-provincial declaratory order made in Canada and, once recognized, the order has the same effect as if it were a declaratory order under this Part.
Declining to recognize an order
A court may decline to recognize an extra-provincial declaratory order made in Canada and make an order under this Part if
(a) evidence becomes available that was not available during the proceeding at which the extra-provincial declaratory order was made; or
(b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress.
Recognition of non-Canadian extra-provincial declaratory orders — required documents
An application for recognition of an extra-provincial declaratory order made outside Canada must include the following:
(a) a certified copy of the extra-provincial declaratory order;
(b) the opinion of a lawyer authorized to practise in Manitoba stating that the extra-provincial declaratory order is entitled to recognition under Manitoba law;
(c) a sworn statement by a lawyer or public official in the extra-provincial jurisdiction as to the effect of the extra-provincial declaratory order.
A certified copy under clause (1)(a) or sworn statement under clause (1)(c) that is not in English or French must be accompanied by a translation into English or French, authenticated as being accurate by a certificate of the translator.
Recognition of non-Canadian extra-provincial declaratory orders
Subject to subsection (4), a court must recognize an extra-provincial declaratory order made outside Canada and, once recognized, the order has the same effect as if it were a declaratory order under this Part if, at the time the extra-provincial declaratory order or the application for the order was made, the child, or at least one of the child's parents,
(a) was habitually resident in the jurisdiction of the extra-provincial tribunal; or
(b) had a real and substantial connection with the jurisdiction of the extra-provincial tribunal.
Declining to recognize an order
A court may decline to recognize an extra-provincial declaratory order made outside Canada and make an order under this Part if
(a) evidence becomes available that was not available during the proceeding at which the extra-provincial declaratory order was made;
(b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress; or
(c) the extra-provincial declaratory order is contrary to public policy.
Recognition of extra-provincial findings
A court must recognize an extra-provincial finding made
(a) in Canada; or
(b) outside Canada if the finding was made by an extra-provincial tribunal with jurisdiction, as determined by the conflict of laws rules of Manitoba, to determine the matter in which the finding was made;
and, once recognized, the extra-provincial finding has the same effect as if it were a finding of parentage made in Manitoba under the same circumstances.
Order to be filed with Vital Statistics
If an extra-provincial declaratory order recognized under section 26 or 27 relates to a child born in Manitoba, the registrar or clerk of the court must file a certified copy of the declaratory order and the Manitoba order recognizing it in the office of the Director of Vital Statistics.
Filing of order made outside Canada
In the case of an extra-provincial declaratory order made outside Canada, the copies filed under subsection (1) must be accompanied by a certified copy of the statement referred to in clause 27(1)(c) and any translation referred to in subsection 27(2).
PART 3
CHILD CUSTODY, ACCESS AND GUARDIANSHIP
|
Contents DIVISION 1 — INTRODUCTORY PROVISIONS 30 Best interests of the child 31 No application during adoption placement period DIVISION 2 — PARENTAL CUSTODY AND ACCESS 32 Joint rights of parents in children 33 Court order for custody or access 34 Variation of order for custody or access 35 Non-custodial parent's right to school and medical records 36 Order to locate and apprehend a child DIVISION 3 — GUARDIANSHIP 37 Guardianship order DIVISION 4 — ACCESS BY GRANDPARENTS AND OTHERS 38 Definition "family member" 39 Application for access by grandparents and others 40 Order for access DIVISION 5 — NOTICE OF CHANGE OF RESIDENCE 41 Notice of change of residence DIVISION 6 — RELOCATION 42 Meaning of "relocation" 43 Notice of proposed relocation 44 Relocation unless objection 45 Court order 46 Power of court if multiple proceedings 47 Variation of custody, access or guardianship order |
DIVISION 1
INTRODUCTORY PROVISIONS
In making an order under this Part respecting custody, access or guardianship, the court must consider the best interests of the child only.
To determine what is in the best interests of a child under this Part, the court must consider all of the child's needs and circumstances, including the following:
1. The nature, quality and stability of the relationship between
(a) the child and each person seeking custody, access or guardianship; and
(b) the child and other significant individuals in the child's life.
2. The child's physical, psychological, educational, social, moral and emotional needs, including the need for stability, taking into consideration the child's age and stage of development.
3. The effect on the child of any domestic violence, including consideration of
(a) the safety of the child and other family and household members who care for the child;
(b) the child's general well-being;
(c) whether the person who perpetrated the domestic violence is able to care for and meet the child's needs; and
(d) the appropriateness of making an order that would require persons who have custody, access or guardianship to communicate and co-operate on issues affecting the child.
4. The ability and willingness of each person who has custody, access or guardianship to communicate and co-operate on issues affecting the child.
5. The willingness of each person seeking custody or guardianship to facilitate the relationship between the child and another parent or person who has custody or access.
6. Any special needs of the child, including special needs for care, treatment or education.
7. The proposed plan of care for the child, including the capacity of a person seeking custody, access or guardianship to provide a safe home, adequate food, clothing and medical care for the child.
8. The history of the care arrangements for the child.
9. The effect on the child of any disruption of the child's sense of continuity.
10. The views and preferences of the child when the court considers it appropriate to ascertain them.
11. The child's cultural, linguistic, religious and spiritual upbringing and heritage.
12. The effect on the child of any delay in the final disposition of the proceedings.
13. When an application for access is made under section 39 (grandparents and others),
(a) the nature of any pre-existing relationship between the applicant and the child; and
(b) if the applicant is a grandparent, the benefit that a child can have from a positive, nurturing relationship with a grandparent.
No application during adoption placement period
When a child has been placed for adoption, no application for custody, access or guardianship in relation to the child may be made under this Part until an order of adoption is made or the placement is otherwise terminated.
DIVISION 2
PARENTAL CUSTODY AND ACCESS
Joint rights of parents in children
Subject to section 33, parents have joint rights in the custody of their children, unless the parents have never cohabited after the child is born, in which case the parent with whom the child resides has sole custody of the child.
COURT ORDER FOR CUSTODY OR ACCESS
Parent may apply for custody or access
A parent of a child may apply to the court for custody of the child or access to the child.
Person in loco parentis may apply
A person in loco parentis to a child may also apply for
(a) custody of the child, if there is leave of the court; or
(b) access to the child;
if the child's parents are notified of the application.
| Information Note
The term "in loco parentis" refers to a person who stands in the place of a parent to a child. The most common example is a step-parent. |
Unless required by item 3 of subsection 30(2) (domestic violence), in considering an application under this section, the court must not receive evidence of the conduct of a parent or person in loco parentis unless it is satisfied that the evidence bears directly on the person's ability to care for the child properly.
Court order for custody or access
On application under this section, the court may order
(a) that custody of the child be granted to only one parent or person in loco parentis, or to two or more of them jointly; or
(b) that a parent or person in loco parentis who is not granted custody be granted access, at the times and subject to any conditions that the court considers appropriate, for the purpose of visiting the child and fostering a healthy relationship between the parent or person in loco parentis and the child.
An order granting access may include, but is not limited to, provisions requiring all or any of the following:
(a) that the child spend specified periods of time with the person granted access, with or without supervision;
(b) that the person granted access be permitted to attend specified activities of the child;
(c) that the child be permitted to receive gifts from or send gifts to the person granted access, directly or indirectly;
(d) that the child and the person granted access be permitted to communicate with each other, directly or indirectly, whether orally, in writing, or by other means;
(e) that a person named in the order give the person granted access pictures of the child and information about the child's health, education and well-being.
VARIATION OF ORDER FOR CUSTODY OR ACCESS
Variation of order for custody or access
The court that made a custody or access order may vary or terminate it on application by a child's parent, or by a person in loco parentis who has custody of or access to a child.
Before making a variation order, the court must be satisfied that the child's needs or circumstances have changed since the original order was made or last varied, and it must consider the best interests of the child, as required by subsection 30(2) and as determined by reference to that change.
RIGHT TO SCHOOL AND MEDICAL RECORDS
Non-custodial parent's right to school and medical records
Unless the court orders otherwise, a parent who does not have custody of a child retains the same right as a parent who has custody to receive school, medical, psychological, dental and other reports affecting the child.
The right to receive records under subsection (1) is only a right to be provided with information and is not, unless the court orders otherwise, a right to be consulted about or to participate in the making of decisions by a parent who has custody.
ORDER TO LOCATE AND APPREHEND A CHILD
Order to locate and apprehend a child, etc.
On an application for custody of or access to a child under this Act or the Divorce Act (Canada), the court may make one or both of the following orders:
(a) authorize the applicant or someone on his or her behalf to locate and apprehend the child, in which case section 9 of The Child Custody Enforcement Act applies with necessary changes;
(b) require a person, the government or other entity to give the court the address of the respondent or another person if it is contained in the records in the possession or control of the person, the government or other entity, in which case section 13 of The Child Custody Enforcement Act applies with necessary changes.
An application under clause (1)(b) must be served on the person, the government or other entity from whom the address is sought.
DIVISION 3
GUARDIANSHIP
On application by a person other than a parent or person in loco parentis to the child, the court may appoint the applicant as guardian of the person of the child.
When a guardianship order is made, the applicant is for all purposes the guardian of the person of the child and has the care and control of the child and is responsible for the child's support and well-being.
On application by a parent, guardian or person in loco parentis to the child, the court may remove a guardian appointed under this section, with or without appointing another guardian.
DIVISION 4
ACCESS BY GRANDPARENTS AND OTHERS
In this Division, "family member" of a child means a parent, step-parent, sibling, grandparent, aunt, uncle, cousin, guardian and a spouse or common-law partner of any of them.
Access by grandparents and others
The purpose of this section is
(a) to facilitate relationships between children and their grandparents and other family members, when those relationships are in the child's best interests;
(b) to recognize, on an application by a grandparent for access, that children can benefit from a positive, nurturing relationship with their grandparents; and
(c) to recognize that in exceptional circumstances children can benefit from non-family members being given access.
Application for access — grandparent or other family member
A grandparent or other family member who does not otherwise have a right to apply for access to the child may apply to the court for access to the child.
Application for access — non-family members
A person who is not a family member may apply to the court for access to the child under this section if there is leave of the court and the child's parents are notified.
On an application under section 39, the court may order that an applicant be granted access to a child in the manner, at the times and subject to any conditions that the court considers to be in the child's best interests as required by section 30.
When application by non-family member
Before granting an order for access by a non-family member under subsection 39(3), the court must be satisfied that exceptional circumstances warrant doing so.
An order for access may include, but is not limited to, the provisions set out in clauses 33(5)(a) to (e).
The court may, on application, vary or terminate an order for access if the court is satisfied that the child's needs or circumstances have changed since the original order was made or last varied. The provisions of this section apply in relation to that application.
DIVISION 5
NOTICE OF CHANGE OF RESIDENCE
Before a person who has custody or guardianship of, or access to, a child changes their residence or the child's, the person must give written notice of the change to any other person who has custody or guardianship of, or access to, the child.
The notice must set out the date of the change and all available address and contact information about the new residence.
Exemption from notice requirement
On application, the court may grant an exemption from all or part of the requirement to give notice if it is satisfied that an exemption is
(a) in the child's best interests; or
(b) necessary to prevent a person who is planning to change their residence from being exposed to domestic violence or stalking.
An application for an exemption may be made without notice to any other party.
A person required to give a notice of relocation under section 43 need not give an additional notice under this section.
DIVISION 6
RELOCATION
In this Division, "relocation" means a change in the location of a child's residence — or the residence of a child's parent, guardian, or a person in loco parentis who has custody of a child — if the change can reasonably be expected to have a significant impact on the child's relationship with
(a) a parent;
(b) a guardian;
(c) a person in loco parentis who has custody of the child; or
(d) a person other than a parent who has court-ordered access to the child.
NOTICE OF PROPOSED RELOCATION
When a child's parent or guardian, or a person in loco parentis who has custody of the child, plans to relocate — whether with or without the child — he or she must give at least 60 days' written notice of the proposed relocation to the following persons:
(a) a parent;
(b) a guardian;
(c) a person in loco parentis who has custody of the child;
(d) a person other than a parent who has court-ordered access to the child;
(e) a person who has applied for custody or guardianship of, or access to, the child under this Act where the application is pending.
The notice of proposed relocation must include
(a) the date of the proposed relocation;
(b) the address of the proposed new residence; and
(c) a proposal for new care and access arrangements.
Exemption from notice requirement
On application, the court may grant an exemption from all or part of the requirement to give notice if it is satisfied that an exemption is
(a) in the child's best interests; or
(b) necessary to prevent a person who is planning to relocate from being exposed to domestic violence or stalking.
An application for an exemption
(a) may be made without notice to any other party; and
(b) in circumstances specified by regulation, must be heard on an urgent basis.
When 60-day notice does not apply
The 60-day notice period in this section does not apply if a court order specifies another period.
RELOCATION UNLESS OBJECTION
Child may be relocated unless objection
When a person gives notice under section 43 that he or she plans to relocate with a child, the child's relocation may occur on or after the date specified in the notice unless a person entitled to object under subsection (2) applies, within 30 days after receiving the notice, for an order to prohibit the child's relocation.
The following persons may object to the child's relocation:
(a) a parent of the child who has custody or access;
(b) a guardian of the child;
(c) a person in loco parentis who has custody of the child.
| Information Note
A parent may have custody of a child:(1)under a court order, or(2)by operation of law, for example under section 32 of this Act (rights of parents in children). |
Relocation is not permitted under subsection (1) if there is an existing court order prohibiting it.
COURT ORDER RE RELOCATION
Definition "relocating parent"
In this section, "relocating parent" means a parent or other person who has custody or guardianship of a child and who plans to relocate with the child.
Application to permit or prohibit relocation
On application by a relocating parent or by a person entitled to object under subsection 44(2), a court may make an order permitting or prohibiting the child's relocation.
Regardless of who makes the application, the relocating parent has an onus to prove that the relocation is in the child's best interests if
(a) another person who has custody or guardianship of, or court-ordered access to, the child cares for the child for at least one-third of the overnight stays over the course of a year, or comparable time, as determined by the regulations;
(b) the child is of an age and maturity where it is appropriate to consider the child's views, and the child expresses to an independent professional a clear preference against the relocation; or
(c) the relocating parent has acted unilaterally
(i) in contravention of a court order, or
(ii) after receiving a written notice of objection from a person entitled to object to the relocation.
Regardless of who makes the application, if a person entitled to object to the relocation seeks an order prohibiting the relocation, he or she has an onus to prove that the relocation is not in the child's best interests if
(a) he or she cares for the child for less than one-fifth of the overnight stays over the course of a year, or comparable time, as determined by the regulations; or
(b) the child is of an age and maturity where it is appropriate to consider the child's views, and the child expresses to an independent professional a clear preference in favour of the relocation.
If the circumstances are such that there is an onus under both subsection (3) and subsection (4), neither subsection applies.
Decision based on best interests and additional factors
In deciding an application under this section, the court must consider the best interests of the child as required by section 30 and the following additional factors:
(a) the reasons for the proposed relocation;
(b) whether the relocating parent has given notice of the relocation as required by section 43;
(c) whether a court order or a written agreement between the parties includes restrictions on relocation;
(d) whether the relocating parent has complied with any previous court order, agreement between the parties or any other obligation concerning the child, especially provisions in a court order or agreement respecting custody, access or guardianship;
(e) whether the relocating parent has proposed reasonable and workable arrangements for other persons who care for the child to have care of or access to the child after the relocation;
(f) whether any arrangements for care of or access to the child after relocation are realistic, affordable, and not too burdensome, given the court's power to attach terms and conditions to an order, including the sharing of travel and other access expenses between the parties.
In deciding an application under this section, the court must not consider whether the relocating parent would or would not move without the child in the event that relocation with the child were prohibited.
MULTIPLE PROCEEDINGS
Power of court if multiple proceedings
If an application for custody or guardianship of, or access to, a child is pending when a relocation application is made, the court may
(a) join the proceedings or hear them together;
(b) postpone the hearing of one proceeding until the other has been determined; or
(c) make any other order the court considers necessary for an orderly determination of the issues or proceedings.
VARIATION OF CUSTODY, ACCESS OR
GUARDIANSHIP ORDER
Power of court to vary a custody, access or guardianship order
A court that makes an order under section 45 may (without a further application) vary any existing custody, access or guardianship order if it is satisfied that the child's needs or circumstances have changed as a result of the order under section 45.
PART 4
CHILD AND SPOUSAL SUPPORT
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Contents DIVISION 1 — DEFINITIONS 48 Definitions DIVISION 2 — CHILD SUPPORT 49 Duty to support child 50 Duty to provide financial information 51 Child support order 52 If parentage an issue 53 Order to vary, suspend or terminate child support order 54 Child support agreement DIVISION 3 — RECALCULATION OF CHILD SUPPORT PAYMENTS 55 Definitions re recalculation 56 Child support recalculation service 57 Recalculation 58 Prohibiting recalculation 59 Right to object recalculation 60 Appointing recalculation service 61 Obtaining financial information to recalculate DIVISION 4 — SPOUSAL SUPPORT 62 Definition of "spouse" 63 Application of this Division to certain divorced spouses 64 Duty of mutual support 65 Onus of self-support after separation 66 Duty to provide financial information 67 Effect of separation agreement on support order 68 Spousal support order 69 Factors in making support order 70 Priority of child support 71 Review of spousal support 72 Order to vary, suspend or terminate spousal support order DIVISION 5 — GENERAL SUPPORT MATTERS 73 Matters that may be provided for in support orders 74 Enforcement of support orders 75 Assignment of support orders 76 Compensation for late support payments 77 Order cancelling arrears 78 Regulations |
The following definitions apply in this Part.
"child" means a person
(a) who is under the age of 18 years and has not withdrawn from the charge of his or her parents; or
(b) who is 18 years of age or over and is unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents. (« enfant »)
"child support guidelines" means the Child Support Guidelines Regulation made under section 78. (« lignes directrices sur les pensions alimentaires pour enfants »)
"child support order" means an order made under section 51. (« ordonnance alimentaire au profit d'un enfant »)
"spousal support order" means an order made under section 68. (« ordonnance alimentaire au profit du conjoint »)
"support order" means a child support order or a spousal support order. (« ordonnance alimentaire »)
DIVISION 2
CHILD SUPPORT
DUTY TO SUPPORT
Duty of parents to provide support for child
Each parent of a child has a duty to provide reasonably for the child's support, whether or not the child is in that parent's custody.
Secondary duty to provide support
If the parents of a child fail to provide reasonably for the child's support, the following persons have a secondary duty to provide reasonably for the child's support:
1. A spouse has a duty respecting a child of the other spouse, while the child is in their care.
2. A person who is in a marriage-like relationship with another person has a duty respecting a child of the other person, while the child is in their care.
3. A person who stands in loco parentis to a child has a duty respecting that child.
A parent's duty to provide support for a child continues even if a guardian has been appointed for the child.
DUTY TO PROVIDE FINANCIAL INFORMATION
A parent, or another person found by the court to have a duty to provide for a child's support, whose income information is necessary to determine an amount of child support must — at the request of another parent or other person entitled to apply for support — provide them with financial information in accordance with the child support guidelines.
If a parent or other person fails to comply with a request for information under subsection (1), the court may do one or more of the following:
1. Order the person to comply with the request.
2. Order the person's employer, partner or principal, or any other person, to provide the information to the party requesting it, if the information is within their knowledge or is shown on a record in their possession or under their control.
3. Order the non-complying person to pay to the other parent or person an amount up to $5,000, in addition to or instead of any other penalty to which the person is liable under this Act.
On application by a party, the court may order that any information provided under this section — and any examination or cross-examination on the information — be kept confidential and not form part of the public record.
CHILD SUPPORT ORDER
The court may make an order requiring a parent or a person with a duty of support under section 49 to provide support for a child, on application by
(a) a parent or guardian of the child;
(b) another person on the child's behalf; or
(c) the child.
Order against more than one person
The court may make a child support order against more than one person.
Child support guidelines apply
A court making a child support order must do so in accordance with the child support guidelines, except as set out in subsections (4) to (7).
Agreement or other order to be taken into account
The court may award an amount different from that required by the child support guidelines if it is satisfied
(a) that special provision has been made for the child's benefit, directly or indirectly, including
(i) in an order, a judgment or a written agreement respecting the financial obligations of the persons with a duty under section 49, or
(ii) by a division or transfer of their property; and
(b) that applying the child support guidelines would result in an amount of child support that is inequitable given the special provision that has been made.
The court must record its reasons for making a decision under subsection (4).
With the parties' consent, the court may award an amount different from that required by the child support guidelines if it is satisfied that reasonable arrangements have been made for the child's support.
In determining whether reasonable arrangements have been made under subsection (6), the court must consider the child support guidelines, but it must not decide that arrangements are unreasonable solely because the amount required by the child support guidelines differs from those arrangements.
Parentage determined in a child support proceeding
In a proceeding for a child support order, the court may, regardless of whether an application is made under Part 2 (Determining Parentage), do one or more of the following:
(a) make a finding that a person is a parent of the child;
(b) make a declaratory order respecting the child's parentage under Part 2;
(c) make an order for parentage tests under section 21.
Effect of finding of parentage
A finding of parentage under clause (1)(a) has effect only for the purpose of a child support proceeding under this Part.
A party who requests parentage tests under this section must pay the cost of the tests unless the court orders otherwise.
ORDER TO VARY, SUSPEND OR TERMINATE
A CHILD SUPPORT ORDER
Application to vary, suspend or terminate order
On application, a court that made a child support order may vary, suspend or terminate the order or a part of it, and it may do so prospectively or retroactively.
Before making an order under subsection (1), the court must be satisfied that a change of circumstances as provided for in the child support guidelines has occurred since the original order was made or last varied.
Child support guidelines apply
A court making a variation order must do so in accordance with the child support guidelines, and the order may include any provision that under this Part could have been included in the original order.
Application of other provisions
Subsections 51(4) to (7) apply with necessary changes when an application is made to vary, suspend or terminate a child support order.
When an application is made to vary a child support order that
(a) was made before the child support guidelines came into force; and
(b) provides a single amount for the combined support of one or more children and a spouse or common-law partner;
the court must terminate the order and treat the application as an application for a child support order and an application for a spousal support order.
CHILD SUPPORT AGREEMENT
A child's parent or person with a duty to support a child may enter into a written agreement with
(a) another parent; or
(b) a person who has custody or guardianship of the child;
whereby the parent or person with a duty to support agrees to pay support for the child.
Order may still be applied for
An agreement does not prevent a person from applying for a child support order.
Order terminates previous agreement
A child support order terminates any previous agreement respecting child support.
DIVISION 3
RECALCULATION OF CHILD
SUPPORT PAYMENTS
DEFINITIONS
The following definitions apply in this Division.
"administrative order" means an order made by the recalculation service under section 57. (« ordonnance administrative »)
"payor" means a person who is obligated to pay support for a child under a child support order. (« débiteur alimentaire »)
"recalculated amount" means the child support that a payor must pay under an administrative order made by the recalculation service under section 57. (« prestation rajustée »)
"recalculation service" means the child support recalculation service continued by section 56. (« Service de rajustement »)
"recipient" means a person who has a right to receive support for a child under a child support order. (« créancier alimentaire »)
RECALCULATION
Child support recalculation service
The child support recalculation service is continued, with responsibility for recalculating child support under this Division based on updated income information.
Recalculation of child support — administrative order
Subject to the regulations, the recalculation service may recalculate child support and make an administrative order stating the recalculated amount payable if
(a) the child support was originally determined in accordance with
(i) the child support guidelines, or
(ii) a defined formula that meets the requirements of the child support guidelines; and
(b) recalculation has been ordered by the court.
The recalculation service may recalculate child support only
(a) on the basis of updated income information; and
(b) in accordance with this Act and the child support guidelines.
Recalculated amount becomes the amount payable
Subject to section 59 (right to object), the recalculated amount stated in an administrative order is deemed for all purposes to be the amount payable under the child support order, effective on the date specified by the recalculation service. But payment of the recalculated amount may not be enforced until 31 days after the parties are notified under subsection (5).
Effective date may be retroactive
The date specified for payment under subsection (3) may be retroactive to a date no earlier than three months after the date specified by the court for recalculation to begin.
After recalculating child support, the recalculation service must give a copy of the administrative order stating the recalculated amount to the payor, the recipient and any person to whom the child support order has been assigned.
If a court determines that recalculation of child support by the recalculation service is inappropriate, the court may order that the amount of child support specified in the child support order is not to be recalculated by the recalculation service.
RIGHT TO OBJECT TO RECALCULATION
A payor or a recipient who does not agree with the recalculated amount stated in an administrative order may apply to the court that made the child support order for an order under section 53 to vary, suspend or terminate the child support order.
An application under subsection (1) must be made within 30 days after the parties are given a copy of the administrative order under subsection 57(5).
When an application has been made under this section, the obligation to pay the recalculated amount stated in the administrative order is suspended pending the determination of the application, and the child support order continues in effect as if the recalculation had not been made.
If application withdrawn or dismissed
When an application under this section has been withdrawn or is dismissed by the court, the payor becomes liable to pay the recalculated amount stated in the administrative order as if the application had not been made.
OBTAINING FINANCIAL INFORMATION FOR RECALCULATION
Appointing recalculation service
A person, including an assignee of a child support order, may appoint the recalculation service to act on his or her behalf in requesting and receiving financial information necessary to recalculate child support under this Division.
Recalculation service may request information
The recalculation service may, in writing, request a person (including a payor or recipient), the government or government agency to provide, in writing, any information in their possession or control about a party to a child support order to be recalculated, respecting
(a) the payor's or recipient's address or whereabouts;
(b) the name and address of the payor's or recipient's employer; and
(c) the financial information required from the payor or recipient under this Act or the child support guidelines.
A person, the government or a government agency to whom a request is made under this section must, despite any other law, comply with the request within 21 days after receiving it.
If the recalculation service does not receive the requested information within the required 21 days, it may take any action it considers advisable, including the following:
(a) applying for a court order under subsection (4) to compel the information to be provided;
(b) recalculating the child support order on the basis of a party's deemed disclosure of updated income under subsection (5), if it is that party that has not provided the requested information.
On application by the recalculation service, the court may make an order compelling a person, the government or government agency to give the requested information to the recalculation service. The order may be made subject to any terms and conditions the court considers appropriate.
For the purpose of clause (3)(b), a party that has not provided the requested information is deemed to have disclosed updated income, determined in accordance with the regulations.
DIVISION 4
SPOUSAL SUPPORT
In this Division and Division 5, "spouse" includes a common-law partner.
Application of this Division to certain divorced spouses
A person who was divorced from his or her former spouse under
(a) the Civil Marriage Act (Canada); or
(b) a law governing divorce in a jurisdiction outside Canada;
may apply for a spousal support order under this Division if the person or his or her former spouse is habitually resident in Manitoba when the application is made. In that case, this Division and Division 5 apply with necessary changes.
DUTY TO SUPPORT
Spouses have the mutual duty to contribute reasonably to each other's support.
The duty of mutual support exists regardless of the conduct of either spouse, and the court must not consider the conduct of either spouse in determining whether to make an order for support under this Division.
A spouse's right to support under this section includes the right, while living with the other spouse, to
(a) periodic reasonable amounts for clothing and other personal expenses; and
(b) sole discretion in the use of those amounts free of any interference from the other spouse.
Onus of self-support after separation
After separation, a spouse has the duty to take all reasonable steps to become financially independent of the other spouse, despite the duty of mutual support under subsection 64(1).
DUTY TO PROVIDE FINANCIAL INFORMATION
Spouses have the mutual duty to provide each other, on request, with information and accountings respecting the financial affairs of the marriage or common-law relationship and the household relating to it, including, but not limited to,
(a) copies of each other's income tax returns, together with assessment notices;
(b) itemized statements of each other's gross and net earnings, showing all deductions; and
(c) itemized statements of each other's debts and liabilities, if any.
If a spouse fails to comply with a request under subsection (1), the court may do one or more of the following:
1. Order the spouse to comply with the request.
2. Order the non-complying spouse's employer, partner or principal, or any other person, to provide the other spouse with any of the information, accountings or documents referred to in subsection (1) that are within the knowledge of or contained in a record in the possession or control of the employer, partner, principal or other person.
3. Order the non-complying spouse to pay the other spouse an amount up to $5,000, in addition to or instead of any other penalty to which the non-complying spouse is liable under this Act.
On application by a party, the court may order that any information, accountings or documents provided under this section — and any examination or cross-examination on them — be kept confidential and not form part of the public record.
EFFECT OF SEPARATION AGREEMENT ON ORDER
Effect of separation agreement
When spouses have entered into a written agreement for spousal support in which one of them has agreed to release the other from liability for support or to accept a specified amount of support from the other, the court must not make an order under this Part for support of the spouse who has so agreed.
However, subsection (1) does not apply in the following circumstances:
(a) the spouse who is required to provide support under the agreement is in default;
(b) the court is satisfied that
(i) the support that a spouse agreed to provide under the agreement was inadequate given the circumstances of both spouses when the agreement was entered into, or
(ii) the spouse who, in the agreement, released the other from liability for support or accepted a specified amount of support from the other has become in need of public assistance.
When a court makes a spousal support order in a circumstance mentioned in subsection (2), the order terminates the agreement for spousal support.
A provision in an agreement stating that support for a spouse is conditional on the spouse abstaining from sexual relations is void, and all other provisions of the agreement are to be enforced without regard to that provision.
SUPPORT ORDER
A court may, on application by a spouse, make an order requiring one spouse to provide support for the other, and determine the amount of support.
In determining the amount, if any, and duration of spousal support, the court must consider all the circumstances of the spouses, including the following:
1. The duration of the marriage or common-law relationship.
2. The functions performed by each spouse during the time they lived together.
3. The financial means, earnings and earning capacity of each.
4. The household standard of living of each.
5. The financial needs of each.
6. Any contribution of a spouse within the meaning of subsection (2).
7. Any impairment of the income-earning capacity and financial status of either resulting from the marriage or common-law relationship.
8. If one of them is financially dependent upon the other,
(a) the measures available for the dependent spouse to become financially independent of the other, and the length of time and cost involved in taking those measures; and
(b) whether and to what extent the dependent spouse is complying with the duty to take all reasonable steps to become financially independent.
9. Any duty either has for the support of a child, or of another person other than the other spouse.
10. Any previous court order relating to the support of the spouses.
11. The existence of any agreement or arrangement relating to the support of the spouses.
12. The amount of any property settlement made between them.
Domestic service as financial contribution
Any housekeeping, child care or other domestic service performed by a spouse for the family is a contribution to support within the meaning of section 64 (duty of mutual support) in the same way as if the spouse were devoting the time spent in performing that service in gainful employment and contributing the earnings to support.
PRIORITY OF CHILD SUPPORT
A court that is considering both an application for a child support order and an application for a spousal support order must give priority to child support in determining the applications.
When, because of giving priority to child support, the court is unable to make a spousal support order, or makes an order in an amount that is less than it otherwise would have been, the court must record its reasons for doing so.
Consequences of reduction or termination of child support order
When, because of giving priority to child support, a spousal support order is not made, or the amount of the order is less than it otherwise would have been, any later reduction or termination of child support is a change of circumstances for the purpose of applying for a spousal support order or a variation of an order.
REVIEW OF SPOUSAL SUPPORT
An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for any of the following:
(a) that the review occur on or after a specified date, after a specified period of time or after a specified event has occurred;
(b) the manner in which the review will take place;
(c) the grounds on which a review will be permitted;
(d) the matters to be considered in a review.
When a court reviews spousal support, the court may, on application, do one or more of the following:
(a) confirm an agreement respecting spousal support or a spousal support order;
(b) set aside all or part of an agreement, or vary or terminate a spousal support order;
(c) make a spousal support order under section 68.
ORDER TO VARY, SUSPEND OR TERMINATE
SPOUSAL SUPPORT ORDER
Order to vary, suspend or terminate spousal support order
On application, a court may vary, suspend or terminate a spousal support order.
Before making an order under subsection (1), the court must be satisfied that a change in the means, needs or circumstances of either spouse has occurred since the order was made or last varied, and the court must consider the change in making the order.
An order under this section may be made retroactive to the date of the application, but not earlier.
DIVISION 5
GENERAL SUPPORT MATTERS
MATTERS THAT MAY BE PROVIDED FOR IN SUPPORT ORDERS
Matters that may be provided for in support orders
In a child support order or a spousal support order, the court may provide for one or more of the following:
1. That payment be made in a lump sum, periodically, annually or otherwise, or in any combination of them, for an indefinite or limited period or until a specified event occurs.
2. That payment of a lump sum be made directly or in trust.
3. That support be paid in respect of any period before the date of the order.
4. That some or all of the support payable under the order be paid to another person for the benefit of the support recipient.
5. With respect to a child support order, that some or all of the support be paid directly to the child.
6. That a spouse who has a policy of life insurance as defined in The Insurance Act designate the other spouse or a child as the beneficiary, either irrevocably or for the period set by the order.
7. That a duty and liability to pay support continue after the death of the person having the duty, and is a debt of the person's estate for the period set by the order.
8. That the parties provide each other with updated financial information annually or at other specified times.
9. That a spouse who is required to pay support maintain coverage for the other spouse and any children on his or her medical, dental or other health care plan.
10. That court costs and reasonable lawyer's costs related to the support order, in amounts that the court may determine, be paid by one party, or by the parties in the proportions the court may determine.
11. That payment under the order be secured by a charge on property or otherwise.
ENFORCEMENT OF SUPPORT
Whether or not a support order states that it may be enforced under Part VI of The Family Maintenance Act, such an order may be so enforced, and the support recipient may also enforce it under any law.
A support order or an agreement respecting child or spousal support may be assigned to the director designated under The Manitoba Assistance Act.
The director must take reasonable steps to notify the payor under a support order or agreement of any assignment. The notice may be sent by ordinary mail.
Director entitled to participate
When a support order or agreement has been assigned, the director
(a) is entitled to receive the payments due under the order or agreement; and
(b) has the same right to be notified of and participate in any proceedings under this Part or Part VI of The Family Maintenance Act to vary, suspend, terminate or enforce payments, including arrears, under an order or agreement as the person entitled to receive support under the order or agreement.
COMPENSATION FOR LATE SUPPORT PAYMENTS
Compensation for late support payments
This section applies when a payment required under a support order is not made, is made only in part, or is made after it was due.
In the circumstances mentioned in subsection (1), a court hearing an application to vary or terminate a support order under this Part may order the person required to pay support to make a compensatory payment in an amount up to $5,000 to the person entitled to receive support.
ORDER CANCELLING ARREARS
The court that made a support order may, on application, cancel arrears under the order, in whole or in part, if the court is satisfied that,
(a) having regard to the interests of the person in arrears or his or her estate, it would be grossly unfair not to do so; and
(b) having regard to the interests of the person to whom the arrears are owed or his or her estate, the cancellation is justified.
REGULATIONS
Regulations respecting child support
The Lieutenant Governor in Council may make regulations establishing guidelines for the making of child support orders under this Part, and which permits Manitoba's designation under subsection 2(5) of the Divorce Act (Canada).
Without limiting the generality of subsection (1), guidelines may be established
(a) respecting the way in which the amount of an order for child support is to be determined;
(b) respecting the circumstances in which discretion may be exercised in the making of an order for child support;
(c) authorizing a court to require that the amount payable under an order for child support be paid or secured, or paid and secured, in the manner specified in the order;
(d) respecting the circumstances that give rise to the making of a variation order in respect of child support;
(e) respecting the determination of income for the purposes of the application of the child support guidelines;
(f) authorizing a court to impute income for the purposes of the application of the child support guidelines;
(g) respecting the production of financial information, deeming income and disclosure of income, if that information is not produced, and providing for sanctions;
(h) for the purpose of subsection 61(7), respecting the determination of a party's updated income;
(i) adopting, in whole or in part, and as amended from time to time, any regulation, guideline, rule, or procedure;
(j) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Part.
The Lieutenant Governor in Council may make regulations
(a) respecting the recalculation service generally;
(b) governing recalculations by the recalculation service.
PART 5
MISCELLANEOUS ORDERS RE SPOUSES AND PARTNERS
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Contents 79 Order of exclusive occupation of family home 80 Order respecting conduct 81 Order to vary or terminate 82 Order of non-cohabitation 83 Finding re length of common-law relationship |
ORDER OF EXCLUSIVE OCCUPATION OF FAMILY HOME
In this section, "family home" means property that is owned or leased by one or both spouses or common-law partners and that is or has been occupied by them as their home.
Order of exclusive occupation of family home
On application by a spouse or common-law partner, the court may order
(a) that one spouse or common-law partner be given exclusive occupation of the family home for a specified period, even if the other spouse or partner is the sole owner or lessee of the home or if both spouses or partners together are the owners or lessees;
(b) that the right that the other spouse or common-law partner may have as owner or lessee to apply for partition or sale, or to sell or otherwise dispose of the family home, be postponed.
An order under subsection (2) does not grant to a spouse or common-law partner any right that continues after the rights of the other spouse or partner, or of both spouses or partners, as owner or lessee are terminated.
ORDER RESPECTING CONDUCT
Unless it would be more appropriate to make an order under The Domestic Violence and Stalking Act, on application by a spouse, common-law partner or person who has lived in a marriage-like relationship, a court may make an order
(a) prohibiting or restricting communications between the parties, including how and when communications may occur;
(b) prohibiting or restricting the other party's attendance at or near a place where the applicant regularly attends, including the applicant's home, workplace or business.
An order under subsection (1) may include exceptions and be made subject to any terms and conditions the court considers appropriate to
(a) permit communication for the purpose of pursuing court proceedings;
(b) allow the parties to attend a court hearing or a meeting, mediation, evaluation or other event related to court proceedings or the settlement of court proceedings or the settlement of family matters that will avoid court proceedings; and
(c) permit the parties to exercise a right to periods of care and control of or access to a child of the marriage or the relationship.
ORDER TO VARY OR TERMINATE
The court that made an order under section 79 or 80 may, on application, vary or terminate the order if it considers it fair and reasonable to do so, having regard to any material change in circumstances that has occurred since the order was made or last varied.
ORDER OF NON-COHABITATION
On application by a spouse, a court may order that the spouses are no longer bound to cohabit with one another.
FINDING RE LENGTH OF COMMON-LAW RELATIONSHIP
Finding re length of common-law relationship
When an application is made under this Act that relates to a common-law relationship, the court may make a finding as to the period of time during which common-law partners cohabited in a common-law relationship, and the date their cohabitation began and ended.
PART 6
GENERAL POWERS OF THE COURT
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Contents 84 Jurisdiction of Queen's Bench and Provincial Court 85 Conduct of proceedings 86 Exclusion of the public or from publication 87 Spouse a compellable witness 88 Reconciliation efforts 89 Appeals 90 Interim order 91 Consent order 92 Incorporating terms of agreement in court order 93 Terms and conditions of orders 94 Review of order 95 Order to provide address |
JURISDICTION OF QUEEN'S BENCH AND PROVINCIAL COURT
Jurisdiction of Queen's Bench (Family Division)
An application may be made to the Court of Queen's Bench (Family Division) for any order under this Act.
Limited jurisdiction of Provincial Court
An application may be made to the Provincial Court (Family Division) for any order under this Act except the following:
(a) an order under item 2 of section 73 that a lump sum payment of support be made in trust;
(b) an order under item 11 of section 73 that payment of support be secured by a charge on property;
(c) an order under subsection 79(2) respecting occupation of the family home or postponing rights respecting the family home.
HOW PROCEEDINGS ARE TO BE CONDUCTED
A court must ensure that a proceeding under this Act is conducted
(a) with as little delay and formality as possible; and
(b) in a manner that strives to
(i) minimize conflict between the parties and, if appropriate, promote co-operation, and
(ii) protect children and parties from domestic violence.
EXCLUSION OF THE PUBLIC OR FROM PUBLICATION
Exclusion of the public or from publication
A court may make an order
(a) excluding any person, other than a party, from attending a hearing; or
(b) prohibiting publication of the identity of a party or child in reports of a hearing;
if the court considers that a person's presence at a hearing or publication would be detrimental to a child's health or well-being or have an adverse effect on, or cause undue hardship to, the party or a child.
SPOUSE A COMPELLABLE WITNESS
In any proceeding under this Act, spouses are competent and compellable to give evidence against one another.
RECONCILIATION EFFORTS
Court to ask about reconciliation
When an application under this Act relates to a marriage or common-law relationship, the court may at any time
(a) ask the applicant and, if present, the respondent, whether there is a possibility of their reconciliation;
(b) adjourn the proceedings to give the parties an opportunity to reconcile;
(c) refer the parties to a counselor to assist them in their efforts to reconcile;
unless the circumstances of the case are such that it would clearly not be appropriate to do so.
No evidence permitted re counselling
Unless the parties agree otherwise, no person who counsels spouses or common-law partners in reconciliation efforts, and no party to those efforts, is competent or compellable to give evidence in a proceeding under this Act or otherwise, as to
(a) a written or oral statement made by a person during counselling; or
(b) any knowledge or information acquired by anyone during counselling.
Subsection (2) does not apply to a proceeding under Part III (Child Protection) of The Child and Family Services Act.
APPEALS
A party may appeal an order made under this Act, including an interim order, to the Court of Appeal.
The time limit for filing an appeal is 30 days after the order is signed, unless the Court of Appeal extends the time.
After hearing an appeal, the Court of Appeal may
(a) confirm or set aside the order;
(b) make any order that the court that made the order could have made; or
(c) direct a new hearing.
Order under appeal remains in effect
An order under appeal remains in effect and may be enforced until the appeal is determined, unless the court that made the order or the Court of Appeal orders otherwise.
INTERIM ORDER
When an application is made under this Act other than for a declaratory order of parentage under Part 2, the court may make an interim order if it is satisfied that a delay in making an order might prejudice or cause hardship to a party to the proceedings or to a child.
An interim order must be made on the application of a party with notice to the other party or parties, unless the court is satisfied that it is necessary to make an interim order without giving notice.
To the extent practicable, the court must make an interim order in accordance with any requirements or factors that would apply if the order were not an interim order.
CONSENT ORDER
A court may make an order under this Act without a hearing if the parties consent and have agreed on the content of the order.
INCORPORATING TERMS OF AGREEMENT IN COURT ORDER
Order may incorporate agreement
A court may incorporate into an order made under this Act all or part of a written agreement made by the parties to the proceeding and, unless the court orders otherwise,
(a) the order replaces the part of the agreement that is incorporated; and
(b) the rest of the agreement remains in effect.
TERMS AND CONDITIONS OF ORDERS
Terms and conditions of orders
A court may include in an order made under this Act any terms or conditions the court considers appropriate in the circumstances.
REVIEW OF ORDER
Subject to this Act, an order made under this Act, other than a declaratory order of parentage under Part 2, may require the parties to return to the court that made the order for a review of the provisions of the order.
The review may be required after a specified date, after a specified period of time or after a specified event has occurred.
Court may continue, vary or terminate
On a review, the court may continue, vary or terminate the order.
ORDER TO PROVIDE ADDRESS
A potential applicant who needs to know the address or whereabouts of another person to
(a) apply for an order under this Act; or
(b) apply for similar relief under the Divorce Act (Canada) or other law;
may apply to the court for an order requiring any person, the government or another entity to provide the court with information in their possession or control about the person's address or whereabouts. On receiving the information, the court may give it to the applicant or to any other person the court considers appropriate.
An application must be served on the person, the government or other entity from whom the information is sought.
Any person, the government or another entity to whom an order is directed must comply with the order, despite any other enactment or law requiring confidentiality.
Assessing risk of domestic violence or stalking
Before the court gives a person's address or information as to the person's whereabouts to a potential applicant under subsection (1), it must consider whether doing so could expose that person to a risk of domestic violence or stalking.
PART 7
MISCELLANEOUS PROVISIONS
A person who fails to comply with a provision of this Act or a provision of an order made under this Act is guilty of an offence and is liable, on conviction, to a fine of not more than $10,000, or to imprisonment for not more than one year, or both.
The Lieutenant Governor in Council may make regulations
(a) governing all matters of procedure under this Act;
(b) respecting the giving of notices and other documents under this Act and the regulations and specifying when they are deemed to have been given or received;
(c) respecting relocation under Division 6 of Part 3, including the determination of overnight stays or comparable time under section 45;
(d) respecting forms for the purposes of this Act and providing for their use;
(e) defining any word or phrase used but not defined in this Act;
(f) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Act.
No limitation period applies to the making of an application under this Act or to the enforcement of an order made under this Act.
Rights given under this Act are in addition to and not a substitute for rights given under any other law.
PART 8
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMING INTO FORCE
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Contents 100 Transitional re Family Maintenance Act 101 Transitional re Child and Family Services Act 102 Transitional regulations 103-130 Consequential amendments 131 Repeal 132 C.C.S.M. reference 133 Coming into force |
TRANSITIONAL PROVISIONS
Transitional re Family Maintenance Act
In this section, "former Act" means The Family Maintenance Act.
Former Act applies to existing proceedings
Despite the repeal of the former Act, any proceedings commenced under Parts I to V of the former Act that are not fully disposed of before the coming into force of this section are to be dealt with and disposed of under the former Act.
This Act applies if parties consent
Despite subsection (2), with the consent of the parties, a proceeding commenced under Parts I to V of the former Act may be dealt with and disposed of under this Act.
Declarations of parentage continues
A declaration of parentage under Part II of the former Act continues in force according to its terms and may be confirmed or set aside as if the declaration were a declaratory order made under Part 2 of this Act.
Custody or access order continues
An order respecting custody of or access to a child under the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under this Act.
An order respecting the support or maintenance of a child, spouse or common-law partner made
(a) under the former Act; or
(b) under The Wives' and Children's Maintenance Act (now repealed);
continues in force according to its terms and may be enforced, varied, suspended or terminated — and, in the case of an order for child support, may be recalculated — as if the order were a support order made under this Act.
An order respecting the recalculation of child support made under the former Act by a court or the recalculation service continues in force according to its terms and may be enforced, varied, suspended or terminated as if the order were made under this Act.
Order re exclusive occupation of home continues
An order of exclusive occupation of the family residence or postponing a person's rights as owner or lessee of the family residence under the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under section 79 of this Act.
Order prohibiting or restricting communications continues
An order prohibiting or restricting communications between spouses or common-law partners under the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under section 80 of this Act.
Order of non-cohabitation continues
An order that spouses be no longer bound to cohabit with one another under the former Act continues in force according to its terms and may be terminated as if the order were made under section 82 of this Act.
Finding re length of common-law relationship continues
A court finding as to the period of time during which common-law partners cohabited in a common-law relationship under the former Act remains in effect as if the finding were made under section 83 of this Act.
Transitional re Child and Family Services Act
In this section,"former Act" means Part VII of The Child and Family Services Act.
Former Act applies to existing proceedings
Despite the repeal of the former Act, any proceedings commenced under the former Act that are not fully disposed of before the coming into force of this section are to be dealt with and disposed of under the former Act.
This Act applies if parties consent
Despite subsection (2), with the consent of the parties, a proceeding commenced under the former Act may be dealt with and disposed of under this Act.
An order appointing a guardian under section 77 of the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were a guardianship order made under this Act.
An order respecting access to a child under section 78 of the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under this Act.
The Lieutenant Governor in Council may make regulations respecting anything required to deal with the transition of matters from the former Acts referred to in sections 100 and 101 to this Act, including regulations to remedy any difficulty, inconsistency or impossibility resulting from the transition.
CONSEQUENTIAL AMENDMENTS
The Adoption Act
The Adoption Act is amended by this section.
The definition "extended family" in subsection 1(1) is amended by striking out "birth parent" and substituting "parent".
Subsection 1(1) is further amended by replacing the definition "parent" with the following:
"parent" means a parent under Part 2 of The Family Law Act; (« parent »)
Sections 24 and 25 are amended in the part before clause (a) by striking out "Part II of The Family Maintenance Act that a man be declared to be the father of the child to be adopted" and substituting "Part 2 of The Family Law Act that a person be declared to be the parent of the child to be adopted".
Clauses 50(e), 67(e) and 85(e) are amended by striking out "The Family Maintenance Act for a declaration that a man be declared to be the father of the child" and substituting "Part 2 of The Family Law Act for a declaration that a person be declared to be the parent of the child".
The Manitoba Assistance Act
Clause 5(1)(f) of The Manitoba Assistance Act is amended by striking out "both of".
The Change of Name Act
The Change of Name Act is amended by this section.
The definition "custody" in subsection 1(1) is replaced with the following:
"custody" means the care and control of a child by
(a) a parent of the child, or
(b) a person in loco parentis to the child; (« garde »)
Subsection 4(1) is amended
(a) by replacing clause (a) with the following:
(a) with the written consent of each other parent who has custody; or
(b) in clause (b), by striking out "the parent who does not have custody" and substituting "each other parent who does not have custody".
The following is added after subsection 4(4):
Application by person in loco parentis
When an order has been made granting custody of a child to a person in loco parentis, that person may apply to change the child's name with the consent of the parents and, if consent cannot be obtained, notice of the application to change the child's name and their right to object under subsection 6(1) must be given to the parents.
Subsection 5(1) is replaced with the following:
Director may dispense with notice
Where notice of the application mailed under section 4 cannot be delivered or where the last known place of residence of a parent who does not have custody is the same as the applicant's address, the director may require the applicant to make a reasonable attempt to locate a parent who does not have custody and where the attempt is unsuccessful, the director may dispense with notice to that parent.
The Child and Family Services Act
The Child and Family Services Act is amended by this section.
Subsection 1(1) is amended
(a) in the definition "court", by striking out ", and in Part VII"; and
(b) by replacing the definition "parent" with the following:
"parent" means a parent under Part 2 of The Family Law Act or an adoptive parent; (« parent »)
Subsection 16(1) is amended
(a) in clause (b), by adding "or parents" after "surviving parent"; and
(b) in clause (c) of the English version, by striking out "both parents" and substituting "the parents".
Subsection 16(2) is replaced with the following:
Voluntary surrender of guardianship by mother
The birth mother of a child may, by agreement on a prescribed form, surrender guardianship of the child to an agency where no circumstances exist that would give rise to a presumption under section 13 of The Family Law Act that a male person is the child's biological father.
Declaration of parentage to replace parents
If a declaration of parentage has been made or recognized under Part 2 of The Family Law Act that has the effect of replacing the birth mother or the biological father as the parent or parents of the child, the person or persons declared to be the child's parent or parents, as the case may be, may, by agreement on a prescribed form, surrender guardianship of the child to an agency.
Declaration of parentage to add parents
If a declaration of parentage has been made under Part 2 of The Family Law Act that has the effect of adding an additional parent, then all parents may, by agreement on a prescribed form, surrender guardianship of the child to an agency.
Subsections 16(3) to (5) are amended by striking out "subsection (1) or (2)" and substituting "subsection (1), (2), (2.1) or (2.2)".
Part VII is repealed.
The Provincial Court Act
The Provincial Court Act is amended by this section.
Section 20 is amended
(a) in the section heading of the English version, by striking out "maintenance" and substituting "support";
(b) in the English version, by adding "support," before "alimony"; and
(c) by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The following is added after subsection 20.4(2):
Where a judge appoints a family evaluator under subsection (1) and a party refuses to co-operate with him or her, the family evaluator shall report the refusal to the court. The court may draw any inference from the refusal it considers appropriate.
The Court of Queen's Bench Act
The Court of Queen's Bench Act is amended by this section.
The definition "family proceeding" in section 41 is amended as follows:
(a) by replacing clause (d) with the following:
(d) the obligation to provide support
(i) as between a parent and a child of the parent, or
(ii) by a person, other than a parent, for a child,
(b) by replacing clause (h) with the following:
(h) The Family Law Act or The Family Maintenance Act (including Parts I to V now repealed),
Clause 72.1(5)(a) is amended by striking out "or" at the end of subclause (i), adding "or" at the end of subclause (ii) and adding the following after subclause (ii):
(iii) a person other than a parent and a child;
The Child Custody Enforcement Act
Section 7 and subsection 9(7) of The Child Custody Enforcement Act are amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The Dependants Relief Act
The Dependants Relief Act is amended by this section.
The definition "child" in section 1 is amended by striking out "and" at the end of clause (a) and by adding the following after clause (a):
(a.1) a child who is conceived and born within two years after the deceased's death and who lives for at least 16 days, if the requirements of section 1.1 are met; and
The following is added after section 1:
Notice re child conceived posthumously
If a person might use reproductive material or an embryo provided by a deceased person to conceive a child posthumously through assisted reproduction, the person must give written notice of that fact, within five months from the grant of probate or administration, to
(a) the deceased's personal representative;
(b) successors under The Intestate Succession Act; and
(c) beneficiaries under a will, if there is one.
Despite subsection (1) and section 1, the Court of Queen's Bench may extend the following periods if it is satisfied that exceptional circumstances warrant doing so:
(a) the five-month notice period set out in subsection (1);
(b) the two-year period referred to in clause (a.1) of the definition "child" in section 1.
Necessary proof re posthumous conception
When an application for an order under section 2 is made on behalf of a child conceived posthumously, the applicant must prove that the deceased
(a) provided reproductive material or an embryo that was used to conceive the child;
(b) gave written consent allowing the reproductive material or embryo to be used for the posthumous conception; and
(c) gave written consent to be the parent of a child conceived after his or her death.
Declaratory order as conclusive proof
If the deceased has been declared to be the child's parent under section 17 or 18 of Part 2 of The Family Law Act and the time to appeal the declaratory order has elapsed or any appeal has been disposed of, the order is conclusive proof of the matters set out in subsection (3).
In this section,
(a) the terms "assisted reproduction", "embryo", "marriage-like relationship" and "reproductive material" have the same meaning as in The Family Law Act; and
(b) sections 9 (date of conception) and 10 (providing reproductive material) of The Family Law Act apply for purposes of interpreting this section.
Section 3 is amended
(a) by adding "or potential dependant" after "dependant";
(b) by renumbering it as subsection 3(1); and
(c) by adding the following as subsection 3(2):
Definition of "potential dependant"
In subsection (1), "potential dependant" means a child who has been or may be conceived posthumously, but is not yet born.
Subsection 6(1) is amended by adding "or, in the case of a posthumously conceived child, not later than six months after the child's birth" at the end.
The Domestic Violence and Stalking Act
The Domestic Violence and Stalking Act is amended by this section.
Clause 2(1)(e) is replaced with the following:
(e) is a parent of his or her child under Part 2 of The Family Law Act or by adoption, regardless of their marital status or whether they have ever lived together.
Clause 14(1)(d) is replaced with the following:
(d) a provision granting the subject temporary exclusive occupation of the residence, regardless of ownership, but subject to any order made under
(i) subsection 79(2) of The Family Law Act,
(ii) clause 10(1)(b.2) of The Family Maintenance Act (now repealed), or
(iii) subsection 10(5) of The Family Maintenance Act (now repealed);
Clause 14(1)(p) is amended
(a) in the English version, by striking out "an order has been made" and substituting "an order was made"; and
(b) by striking out "The Family Maintenance Act" and substituting "The Family Maintenance Act (now repealed)".
Subsection 14(2) is amended by striking out "subsection 10(6) (right of occupancy restricted) of The Family Maintenance Act" and substituting "subsection 79(3) (limit on exclusive occupation of family home) of The Family Law Act".
Section 22 is amended
(a) by adding the following after clause (a):
(a.1) an order obtained under subsection 80(1) (order respecting conduct) of The Family Law Act;
(b) in clause (b), by striking out "The Family Maintenance Act" and substituting "The Family Maintenance Act (now repealed)".
The following is added after section 27:
Transitional re Family Maintenance Act
Despite the repeal of clauses 10(1)(c) (no entry to spouse's premises) and (d) (non-molestation) and Division 2 (non-molestation order by magistrate) of Part V of The Family Maintenance Act (now repealed), an order or interim order made under those provisions continues in force and may be revoked but may not be otherwise varied. Section 19 applies with necessary changes to an application to revoke a provision of such an order.
Effect of order under this Act on prior non-molestation order
Despite subsection (1), when a protection order or prevention order is made under this Act in respect of persons who are also parties to a non-molestation order under clause 10(1)(d) of The Family Maintenance Act (now repealed),
(a) if the non-molestation order was made by a designated magistrate under Division 2 of Part V of The Family Maintenance Act (now repealed), the order is revoked; and
(b) if the order was made by a judge of the Provincial Court, that provision of the order is revoked.
Applicant and respondent must be the same persons
For greater certainty, the parties referred to in subsection (2) must be the same applicant and respondent in both orders.
The Drivers and Vehicles Act
Subsections 24(1) and 74(2) of The Drivers and Vehicles Act are each amended by replacing clauses (a) to (d) with the following:
(a) by the applicant's parents;
(b) if the registrar is satisfied that it is not practical or desirable to obtain the approval and signature of the applicant's parents, by any of them;
(c) if one of the applicant's parents is dead, by a surviving parent;
(d) if the registrar is satisfied that the approval and signature of no parent should be required, or if the applicant's parents are dead, by the applicant's legal guardian; or
The Family Maintenance Act
The Family Maintenance Act is amended by this section.
Section 52 is amended in the definition "maintenance order"
(a) by replacing subclause (a)(i) with the following:
(i) The Family Law Act,
(b) in the part after subclause (a)(v), by striking out "order under section 46.0.1" and substituting "payment under section 76 of The Family Law Act".
Section 52 is further amended by adding the following definitions:
"court" means the Court of Queen's Bench or the Provincial Court; (« tribunal »)
"deputy registrar" means a deputy registrar of the Court of Queen's Bench; (« registraire adjoint »)
"judge" means a judge of the court; (« juge »)
"master" means a master or referee of the Court of Queen's Bench; (« conseiller-maître »)
Subsection 55(2.2) is amended by replacing subclause (d)(ii) with the following:
(ii) the child support recalculation service continued under section 56 of The Family Law Act for the purpose of carrying out its powers and duties.
Subsection 61.4(3) is amended by striking out "under section 46.0.1" and substituting"under section 76 of The Family Law Act".
The Family Property Act
The Family Property Act is amended by this section.
Clause 6(2)(a) is replaced with the following:
(a) made under The Family Law Act or The Family Maintenance Act (now repealed); or
Clause 35(2)(b) is replaced with the following:
(b) is in compliance with a court order made under
(i) the Divorce Act (Canada),
(ii) item 6 of section 73 of The Family Law Act, or
(iii) clause 10(1)(i) of The Family Maintenance Act (now repealed); or
Clause 41(1)(b) of the English version is amended by striking out "pay maintenance" and substituting "pay support or maintenance".
The Highway Traffic Act
Clauses 168(2)(a) to (d) of The Highway Traffic Act are replaced with the following:
(a) by the applicant's parents;
(b) if the registrar is satisfied that it is not practical or desirable to obtain the approval and signature of the applicant's parents, by any of them;
(c) if one of the applicant's parents is dead, by a surviving parent;
(d) if the registrar is satisfied that the approval and signature of no parent should be required, or if the applicant's parents are dead, by the applicant's legal guardian; or
The Human Tissue Gift Act
Subsection 10(4) of The Human Tissue Gift Act is amended by striking out "the mother or father, or the step-mother or step-father" and substituting "the parent or step-parent".
The Infants' Estates Act
The Infants' Estates Act is amended by this section.
The definition "parent" in section 1 is replaced with the following:
"parent" means a parent under Part 2 of The Family Law Act or an adoptive parent. (« parent »)
Clause (2)(b) is amended by striking out "the other parent" and substituting "any other parent".
Section 3 is amended by striking out "either or both parents" and substituting "one or more of the parents".
The Inter-jurisdictional Support Orders Act
The Inter-jurisdictional Support Orders Act is amended by this section.
Subsection 11(3) is amended
(a) in the part before clause (a), by striking out "section 19 or 20 of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act"; and
(b) in the part after clause (b), by striking out "subsections 20(2) and 20(4) to (8) and sections 21 to 24 of The Family Maintenance Act apply" and substituting "Part 2 of The Family Law Act applies".
Subsection 35(2) is amended
(a) by replacing the section heading with "Family Law Act applies"; and
(b) by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The Intestate Succession Act
The Intestate Succession Act is amended by this section.
The following is added after section 1:
Inheritance by posthumously conceived child
A child of the intestate, conceived and born after the intestate's death, inherits as if the child had been born in the intestate's lifetime and had survived the intestate, if the following conditions are met:
(a) the spouse of the intestate, or a person in a marriage-like relationship with the intestate when the intestate died, gives written notice, within five months from the grant of administration, to
(i) the intestate's personal representative,
(ii) successors, and
(iii) beneficiaries under a will, if there is one;
that he or she may use reproductive material or an embryo of the intestate to conceive a child through assisted reproduction;
(b) the child is born within two years after the intestate's death and lives for at least 16 days;
(c) the intestate has been declared to be the child's parent under Part 2 of The Family Law Act.
Inheritance from another relative
The right of a child described in subsection (1) to inherit from the relatives of an intestate begins on the date the child is born.
Despite subsection (1), the Court of Queen's Bench may extend the five-month notice period or the two-year time limit set out in that subsection if the court is satisfied that exceptional circumstances warrant doing so.
In this section,
(a) the terms "assisted reproduction", "embryo", "marriage-like relationship" and "reproductive material" have the same meaning as in The Family Law Act; and
(b) sections 9 (date of conception) and 10 (providing reproductive material) of The Family Law Act apply for purposes of interpreting this section.
The Judgments Act
The Judgments Act is amended by this section.
Subsection 9(1) of the English version is amended
(a) in the section heading, by striking out "alimony" and substituting "support"; and
(b) by adding "support," before "alimony".
The following provisions of the English version are amended by adding "support," before "alimony" wherever it occurs:
(a) section 20, in the part before clause (a);
(b) subsection 21(1), in the part before clause (a);
(c) clause 21(2)(b);
(d) subsection 21(4), in the part before clause (a).
Clause 21(1)(c) is amended
(a) by striking out "The Wives' and Children's Maintenance Act before the repeal thereof" and substituting "The Wives' and Children's Maintenance Act (now repealed) or Parts I to V of The Family Maintenance Act (now repealed)"; and
(b) by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The Legal Aid Manitoba Act
The Legal Aid Manitoba Act is amended by replacing clause 17.2(1)(a) with the following:
(a) in a case where a parent under Part 2 of The Family Law Act is responsible for the care and control of a child, the parent of the child;
The Marriage Act
Clause 18(1)(b) of The Marriage Act is amended as follows:
(a) in subclause (ii), by striking out "surviving parent" and substituting "surviving parent or parents";
(b) in subclause (iv), by striking out "the other parent" and substituting "the other parent or parents";
(c) in subclause (v) of the English version, by striking out "both parents" and substituting "the parents".
The Off-Road Vehicles Act
Clauses 13(2)(a) to (d) of The Off-Road Vehicles Act are replaced with the following:
(a) by the applicant's parents;
(b) if the registrar is satisfied that it is not practical or desirable to obtain the approval and signature of the applicant's parents, by any of them;
(c) if one of the applicant's parents is dead, by a surviving parent;
(d) if the registrar is satisfied that the approval and signature of no parent should be required, or if the applicant's parents are dead, by the applicant's legal guardian; or
The Parental Responsibility Act
The definition "parent" in section 1 of The Parental Responsibility Act is amended by replacing clause (a) with the following:
(a) in a case where a parent under Part 2 of The Family Law Act is responsible for the care and control of a child, the parent of the child;
The Manitoba Public Insurance Corporation Act
The Manitoba Public Insurance Corporation Act is amended by this section.
Subsection 70(1) is amended
(a) in the definition "child of a victim", by striking out "person related to a victim as a child by blood or adoption or" and substituting "child under Part 2 of The Family Law Act, an adopted child, or a child"; and
(b) in the definition "parent of a victim", by striking out "person related to a victim as a parent by blood or adoption or" and substituting "parent under Part 2 of The Family Law Act, an adoptive parent, or a person".
Section 200 is amended striking out "the mother or father" and substituting "a parent".
The Public Schools Act
The definition "legal guardian" in subsection 1(1) of The Public Schools Act is amended by adding ", The Family Law Act" after "The Child and Family Services Act".
The Real Property Act
The Real Property Act is amended by this section.
Clause 34(1)(a) is amended by striking out "either parent" and substituting "a parent".
Subsection 34(2) of the English version is amended by striking out "both parents" and substituting "the parents".
The Vital Statistics Act
The Vital Statistics Act is amended by this section.
Section 1 is amended
(a) by adding the following definition:
"birth mother" means a person who gives birth to a child; (« mère naturelle »)
(b) by repealing the definition "married woman".
Section 3 is amended by adding the following before subsection (1):
In subsections (2) to (7), "parent" means a birth mother and
(a) the birth mother's spouse; or
(b) another person who together with the birth mother declares that he or she is the child's parent by signing the statement respecting the birth under subsection (2) or a joint request under subsection (7).
Clauses 3(2)(a) to (d) are replaced with the following:
(a) the parents of the child or one of them;
(b) an employee in the health facility in which the child is born;
(c) if there is no person to whom clause (a) or (b) applies or if the child's parents are unable to act because of death, illness, absence from Manitoba or otherwise, a person standing in their place as parents; or
(d) if there is no person to whom clause (a), (b) or (c) applies, any person who has knowledge of the birth;
Subsections 3(5) to (9) are replaced with the following:
Registration if parents married
If the birth mother is a married person on the day the child is born, the child's birth must be registered in one of the following ways:
(a) showing the particulars of the birth mother and her spouse as the child's parents;
(b) showing the particulars of only the birth mother as the child's parent, if the birth mother declares that her spouse is not a parent of the child;
(c) showing the particulars of the birth mother and a person other than her spouse as the child's parents, if both the birth mother and the other person sign the statement respecting the birth and the birth mother declares that her spouse is not a parent of the child.
Registration if parents unmarried
If the birth mother is not a married person on the day the child is born, the child's birth must be registered in one of the following ways:
(a) showing the particulars of the birth mother and another person as the child's parents, if both the birth mother and the other person sign the statement respecting the birth;
(b) showing the particulars of only the birth mother as the child's parent.
At any time after a child's birth has been registered showing that only the birth mother is the child's parent under clause (5)(b) or (6)(b), the birth mother and a person who acknowledges that he or she is a parent of the child may complete and deliver or mail a joint written request in an approved form to the director for the person to be registered as a parent of the child. The director may amend the registration according to the joint request on payment of the prescribed fee.
Limit on amending birth registration
Once a birth has been registered showing the birth mother and another person as the child's parents, the registration may only be amended with respect to the identity of the parents by a declaratory order or an order of adoption.
Subsection 3(9.3) is repealed.
Subsection 3(14) is replaced with the following:
Amending registration after Manitoba declaratory order
On receiving a statement respecting a declaratory order of parentage made under Part 2 of The Family Law Act that relates to a child born in Manitoba, the director shall, subject to subsection (16), amend the birth registration according to the declaratory order. Every birth certificate issued after the amendment must be issued as if the original registration had been made as amended.
Amending registration after extra-provincial declaratory order
On receiving an extra-provincial declaratory order of parentage that relates to a child born in Manitoba, together with the Manitoba order recognizing that order and any other documents referred to in subsection 29(2) of The Family Law Act, the director shall, subject to subsection (16), amend the birth registration according to the extra-provincial declaratory order. Every birth certificate issued after the amendment must be issued as if the original registration had been made as amended.
Contradictory declaratory orders
Despite subsections (14) and (15), when the director
(a) receives an extra-provincial declaratory order that contradicts a statement respecting a declaratory order of parentage previously received; or
(b) receives a statement respecting a declaratory order of parentage or an extra-provincial declaratory order that contradicts an extra-provincial order previously received;
the director must not give effect to either order and must restore the birth registration to its original.
Amending registration after written acknowledgment
When the director receives a written acknowledgment of paternity referred to in item 5 of subsection 13(2) of The Family Law Act that in the director's opinion substantially conforms to a joint request under subsection (7), the director may amend the birth registration according to the acknowledgment on payment of the prescribed fee.
Subsection 8(1) is amended
(a) by replacing the section heading with "Registration of given name by director"; and
(b) in the part after clause (b) of the English version, by striking out "both parents" and substituting "the parents".
Subsection 30(7) is replaced with the following:
Notice to Director of Child and Family Services
Within three days of receiving a statement respecting the birth of a child to an unmarried birth mother under the age of 18 years, the director shall send a copy of the statement to the Director of Child and Family Services.
Subsection 32(5) is amended
(a) by repealing clause (e); and
(b) by replacing clause (f) with the following:
(f) the name of each parent and his or her age at the time of the birth;
The Wills Act
The Wills Act is amended by this section.
The following is added after section 35:
Inheritance by posthumously conceived child
Except when a contrary intention appears by the will, a child of a testator, conceived and born after the testator's death, inherits as if the child had been born in the testator's lifetime and had survived the testator if the following conditions are met:
(a) the spouse of the testator, or a person in a marriage-like relationship with the testator when the testator died, gives written notice, within five months from the grant of probate or administration with will annexed, to
(i) the testator's personal representative,
(ii) beneficiaries under the will, and
(iii) successors under The Intestate Succession Act,
that he or she may use reproductive material or an embryo of the testator to conceive a child through assisted reproduction;
(b) the child is born within two years after the testator's death and lives
(i) for the length of time set out in any survivorship clause in the will, or
(ii) if there is no survivorship clause, for at least 16 days;
(c) the testator has been declared to be the child's parent under Part 2 of The Family Law Act.
Inheritance from another relative
The right of a child described in subsection (1) to inherit from the relatives of a testator begins on the date the child is born.
Despite subsection (1), a court may extend the five-month notice period or the two-year time limit set out in that subsection if the court is satisfied that exceptional circumstances warrant doing so.
In this section,
(a) the terms "assisted reproduction", "embryo", "marriage-like relationship" and "reproductive material" have the same meaning as in The Family Law Act; and
(b) sections 9 (date of conception) and 10 (providing reproductive material) of The Family Law Act apply for purposes of interpreting this section.
The Youth Drug Stabilization
(Support for Parents) Act
The definition "parent" in section 1 of The Youth Drug Stabilization (Support for Parents) Act is amended
(a) by replacing clause (a) with the following:
(a) a parent under Part 2 of The Family Law Act or an adoptive parent; or
(b) in clause (b), by striking out "biological or adoptive mother or father" and substituting "parent".
REPEAL
The Family Maintenance Act, R.S.M. 1987, c. F20, except Part VI, is repealed.
C.C.S.M. REFERENCE
This Act may be referred to as chapter F18 of the Continuing Consolidation of the Statutes of Manitoba.
COMING INTO FORCE
This Act comes into force on a day to be fixed by proclamation.
THE COURT OF QUEEN'S BENCH AMENDMENT ACT
Court of Queen's Bench Act amended
The Court of Queen's Bench Act is amended by this Schedule.
Section 1 is amended by adding the following definition:
"family division hearing officer" means a family division hearing officer appointed under subsection 13.1(1); (« agent d'audience de la Division de la famille »)
The following is added after section 13:
Appointment of family division hearing officers
The Minister of Justice may appoint one or more family division hearing officers to
(a) hear and determine, in one or more judicial centres, certain matters respecting family proceedings; and
(b) make orders specified in the regulations respecting those matters.
The Lieutenant Governor in Council may make regulations
(a) specifying orders that family division hearing officers may make, including, but not limited to, procedural orders, consent orders and orders in relation to uncontested matters;
(b) specifying additional duties of family division hearing officers;
(c) governing the practice and procedure before family division hearing officers;
(d) respecting any other matter concerning family division hearing officers that the Minister considers necessary or advisable.
An order made by a family division hearing officer may be appealed within 30 days after it is signed, in the same manner as an order of a master or registrar may be appealed under the rules. The appeal is to be a new hearing.
Section 14 is amended by striking out everything before clause (a) and substituting the following:
A master, family division hearing officer, registrar, deputy registrar, assessment officer or official examiner, when exercising the powers and discharging the duties provided by statute, by regulation or by the rules,
Subsection 20(1) is amended by adding ", family division hearing officer" after "master".
Subsection 93(1) is replaced with the following:
No rules to conflict with an Act or regulation
Nothing in section 92 authorizes the making of rules that conflict with an Act or with a regulation made under subsection 13.1(2) (family division hearing officers), but rules may supplement the provisions of an Act or such a regulation.
This Act comes into force on a day to be fixed by proclamation.