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The Family Maintenance Act
This is an unofficial archived version of The Family Maintenance Act
as enacted by SM 1987-88, c. 9 on July 17, 1987.

R.S.M. 1987, c. F20

The Family Maintenance Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions.

1

In this Act;

"child" includes a child to whom a person stands in loco parentis; ("enfant")

"court" means the Court of Queen's Bench or the Provincial Court; ("tribunal")

"custody" means the care and control of a child by a parent of that child; ("garde" )

"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")

"parent" means a biological parent or adoptive parent of a child and includes a person declared to be the parent of a child under Part II; ("parent")

"spouse" where used in relation to another spouse means the person who is married to that spouse, and "spouses" means two persons who are married to each other. ("conjoint")

Best interests test applies.

2(1)

In all proceedings under this Act the best interests of the child shall be the paramount consideration of the court.

Child's views to be considered.

2(2)

Where the court is satisfied that a child is able to understand the nature of the proceedings and the court considers that it would not be harmful to the child, the court may consider the views and preferences of the child.

Court may direct investigation.

3(1)

In a proceeding under this Act, the court may direct an investigation into any matter by a person who

(a) has had no previous connection with the parties to the proceeding or to whom each party consents; and

(b) is a family investigator, social worker or other person approved by the court for the purpose.

Investigation only to determine best interests.

3(2)

A court may direct an investigation under subsection (1) only if satisfied that it is necessary in order to determine the best interests of the child.

Refusal to co-operate.

3(3)

Where a court directs an investigation pursuant to subsection (1) and a party refuses to cooperate with the investigator, the investigator shall so report to the court which may draw any inference therefrom it considers appropriate.

PART I

SPOUSES

Mutual support obligation.

4(1)

Spouses have the mutual obligation to contribute reasonably to each other's support and maintenance.

Conduct

4(2)

The obligation under subsection (1) exists without regard to the conduct of either spouse and in determining whether to make an order under this Act for support and maintenance of a spouse a court shall not consider the conduct of the spouses in respect of the marriage relationship.

Obligation where cohabit for five years.

4(3)

The obligation under subsection (1) also exists where a man and a woman, not being married to each other, have cohabited continuously for a period of not less than five years in a relationship in which the applicant has been substantially dependent upon the other for support, if an application under this Act is made while they are cohabiting or within one year after they cease cohabiting and section 10 applies with the necessary changes to that application.

No application where spouses agree.

4(4)

No application shall be made under subsection (3) where the man and woman have, in writing, made an agreement with respect to maintenance including an agreement to waive maintenance.

Personal expenses.

5

The right of a spouse to support and maintenance within the meaning of section 4 includes the right, while living with the other spouse, to periodic reasonable amounts for clothing and other personal expenses and the right to sole discretion free of all interference from the other spouse in the use of those amounts.

Onus of self-support after separation.

6

Notwithstanding section 4, a spouse has the obligation after separation to take all reasonable steps to become financially independent of the other spouse.

Factors affecting order.

7(1)

In determining whether to make an order under this Part or section 46 and what provisions the order should contain and, in particular, in determining what is reasonable under sections 4, 5 and 6 for the purposes of the order, a court shall consider all the circumstances of the spouses including the following:

(a) The financial needs of each spouse.

(b) The financial means, earnings and earning capacity of each spouse.

(c) The standard of living of the spouses.

(d) Any obligation of a spouse for the support and maintenance of a child or a person other than the other spouse.

(e) Any contribution of a spouse within the meaning of subsection (2).

(f) The amount of any property settlement made between the spouses.

(g) Where one spouse is financially dependent upon the other spouse, the measures available for the dependent spouse to become financially independent of the other spouse, and the length of time and cost involved in taking those measures.

(h) Any impairment of the income earning capacity and financial status of either spouse resulting from the marriage.

(i) Where one spouse is financially dependent upon the other spouse, whether and to what extent the dependent spouse is complying with the requirements of section 6.

(j) The length of time that the marriage has subsisted.

Domestic service as financial contribution.

7(2)

Any housekeeping, child care or other domestic service performed by a spouse for the family is a contribution to support and maintenance within the meaning of section 4 in the same way as if the spouse were devoting the time spent in performing that service in gainful employment and were contributing the earnings therefrom to support and maintenance.

Financial information.

8(1)

Spouses have the mutual obligation to provide each other upon request with information and accountings respecting the financial affairs of the marriage and the domestic establishment relating thereto and, without restricting the generality of the foregoing, with

(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.

Penalty for non disclosure.

8(2)

Where a spouse fails to comply with subsection (1), a court on application by the other spouse, may, in addition to or in substitution for any other penalty to which the non-complying spouse is liable under this Act, order that spouse to pay to the applicant an amount not exceeding $5,000.

Application for order.

9(1)

A spouse, or any person on behalf of a spouse, may apply to a court for an order under this Part where the other spouse is in breach of an obligation under the Part, or where the applicant spouse desires an order for separation or an order for custody of or access to any child of the marriage or where the applicant spouse desires an order fixing the amount of maintenance payable to the respondent.

Effect of separation agreement.

9(2)

Where two spouses have separated by mutual agreement, and one of them has agreed in writing to release the other from liability for support and maintenance or to accept from the other specified periodic amounts for support and maintenance, no order shall be made under this Act for the support and maintenance of the spouse who has so agreed.

Restricted application of subsec. (2).

9(3)

Subsection (2) does not apply in the case of a separation agreement

(a) where the spouse who is required by the agreement to provide support and maintenance is in default thereunder; or

(b) where the support and maintenance that a spouse agreed therein to provide was inadequate having regard to the circumstances of both spouses at the date of the agreement; or

(c) where the spouse who in the agreement released the other from liability for support and maintenance or agreed to accept from the other specified periodic amounts for support and maintenance has become a public charge or a person in need of public assistance.

Dum casta clauses inoperative.

9(4)

Where an agreement provides that support for a spouse shall only continue while the spouse is chaste that provision is invalid and unenforceable and all other provisions of the agreement shall be enforced without regard to that provision.

Order.

10(1)

Upon an application under this Part, a court may make an order containing any one or more of the following provisions and may make any provision in the order subject to such terms and conditions as the court deems proper:

(a) That one spouse pay to the other spouse, or to a third person on behalf of the other spouse, such lump sum or periodic sums or both for support and maintenance or for clothing and other personal expenses as the court may determine.

(b) That the spouses be no longer bound to cohabit with one another.

(c) That one spouse shall not enter upon any premises where the other spouse is living separate and apart.

(d) That one spouse shall not molest, annoy or harass the other spouse or any child in the custody of the other spouse.

(e) That court costs and reasonable solicitor's costs, in such amounts as the court may determine, be paid by one spouse, or by both spouses in such proportions as the court may determine.

(f) That one spouse, or the employer, partner or principal of one spouse, as the case may be, provide the other spouse with any information, accountings or documents requested under section 6 and, where the Crown is the employer, this clause binds the Crown.

(g) That any information, accountings or documents ordered to be provided under clause (f), and any examination or cross-examination thereon, shall be treated as confidential and shall not form part of the public record of the court.

(h) That the obligation and liability for support continue after the death of the spouse liable to pay and be a debt of his or her estate for such period as is fixed in the order.

(i) 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 such period as is fixed in the order.

Offer to settle by respondent.

10(2)

A respondent may at any time prior to the hearing of the application for support and maintenance serve on the applicant an offer under seal to pay a lump sum or to make periodic payments or both to the applicant in satisfaction of the claim for support and maintenance.

Offer to settle by applicant.

10(3)

An applicant may at any time prior to the hearing of the application for support and maintenance serve on the respondent an offer under seal to accept a lump sum or periodic payments or both in satisfaction of the claim for support and maintenance.

Offer not to be communicated to judge.

10(4)

Where an offer under subsection (2) or (3) is rejected, no communication of that fact shall be made to the judge at the hearing until all questions of liability to pay and the amount of support and maintenance have been decided but the judge shall, in exercising his discretion as to costs, take into account the fact that an offer was made, the amount of the offer and the time when it was made.

Orders under Child Custody Enforcement Act.

11

In an application for custody of or access to a child under this or any other Act, a judge may, if he considers it necessary in the circumstances, by order

(a) authorize the applicant or someone on his behalf to locate and apprehend a child and section 9 of The Child Custody Enforcement Act applies with the necessary changes to the order;

(b) direct any person or public body to provide the court with such particulars of the address of the proposed respondent to the application as are contained in the records in the custody of the person or body and section 13 of The Child Custody Enforcement Act applies with the necessary changes to the order.

Reconciliation.

12(1)

A court before proceeding to hear any application brought before it under this Part shall direct such inquiries to the applicant spouse and, where the respondent spouse is present, to the respondent spouse as it deems necessary in order to ascertain whether a possibility exists of their reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, and if at that or any later stage in the proceedings it appears to the court from the nature of the case, the evidence or the attitude of the spouses or either of them that there is a possibility of their reconciliation, the court

(a) shall adjourn the proceedings to afford the spouses an opportunity of becoming reconciled; and

(b) may direct the spouses to consult a person with experience or training in marriage counselling or guidance, or some other suitable person, for assistance with a view to their possible reconciliation.

Resumption of hearing.

12(2)

Where 30 days have elapsed from the date of any adjournment under subsection (1) and either of the spouses applies to the court to have the proceedings resumed, the court shall resume the proceedings.

Occupancy of family residence.

13(1)

Where under this Part a court makes an order containing a provision under clause 10(l)(b), it may include in the order a provision that one of the spouses has the right to continue occupying the family residence, notwithstanding that the other spouse alone is the owner or lessee of the residence or that both spouses together are the owners or lessees of the residence, for such length of time and subject to such conditions as the court may order.

Postponement of sale.

13(2)

Where an order made under this Part grants to one spouse the right under subsection (1) to continue occupying the family residence, the court may include in the order a provision that such rights as the other spouse may have as owner or lessee to apply for partition and sale or to sell or otherwise dispose of the residence be postponed subject to the right of occupancy contained in the order.

Right of occupancy restricted.

13(3)

No right of occupancy of a spouse ordered under this section shall continue after the rights of the other spouse as owner or lessee or of both spouses as owners or lessees, as the case may be, are terminated.

Unmarried cohabitation.

14(1)

Where a man and a woman who are not married to each other have cohabited for a period of one year or more and there is a child of the union, this Act applies with such modifications as the circumstances require if an application for an order is made thereunder by or on behalf of the man or the woman while they are still cohabiting or within one year after they cease cohabiting.

Entering upon premises.

14(2)

Where a man and a woman who are not married to each other have cohabited, either the man or the woman may apply to a court for an order under this Part containing a provision of the kind mentioned in clause 10(1)(c) or (d) and, for the purposes of such an application, this Act applies with such modifications as the circumstances require as though the man and the woman were married to one another.

PART II

CHILD STATUS

Definitions.

15

In this Part, "director" means the Director of Vital Statistics.

Void and voidable marriage.

16

For the purpose of section 24

(a) where a man and woman go through a form of marriage with each other with at least one of them doing so in good faith and they cohabit and the marriage is void, they shall be deemed to be married during the time they cohabit; and

(b) where a voidable marriage is decreed a nullity, the man and woman shall be deemed to be married until the date of the decree of nullity.

Person is child of parents.

17

For all purposes of the law of Manitoba a person is the child of his parents, and his status as their child is independent of whether he is born inside or outside marriage.

Application.

18

This Part applies to an enactment made before, on or after October 1, 1983 and to an instrument made on or after October 1, 1983 but it does not affect

(a) an instrument made before October 1, 1983; or

(b) a distribution of property made before October 1,1983.

Declaration.

19(1)

Any person having an interest may apply to the court for a declaratory order that a woman is or is not in law the mother of a child.

Order.

19(2)

Where the court finds on the balance of probabilities that a woman is or is not the mother of a child, the court may make a declaratory order to that effect.

Declaration.

20(1)

Subject to subsection (7), any person having an interest may apply to the court for a declaratory order that a man is or is not in law the father of a child whether born or unborn and notice of the application shall be served forthwith on the Director of Child and Family Services appointed under The Child and Family Services Act.

Director of Child and Family Services may move for hearing.

20(2)

Where the Director of Child and Family Services certifies to the court that the mother of the child in question in the application has sought the aid of a child caring agency under The Child and Family Services Act and is considering surrendering the child for adoption, the Director may make the application returnable before a court by serving seven days notice on the applicant and the court shall take all reasonable steps to expedite the hearing of the application.

Order.

20(3)

Where the court finds on the balance of probabilities that a man is or is not the father of a child, the court may make a declaratory order to that effect.

One presumption.

20(4)

Where the court finds that a presumption of paternity under section 23 applies, the court shall make a declaratory order confirming that the paternity is recognized in law unless it is established on the balance of probabilities that the presumed father is not the father of the child.

Conflicting presumptions.

20(5)

Where circumstances exist that give rise under section 23 to conflicting presumptions as to the paternity of a child and the court finds on the balance of probabilities that a person is the father of a child, the court may make a declaratory order to that effect.

Order during lives of parent and child.

20(6)

Subject to subsection (7), a declaration of parentage under this Part shall not be made unless the person and the child whose relationship is sought to be established are living.

Exception if presumption.

20(7)

Where only the father or the child is living, a declaratory order that a man is in law the father of a child may be made under this section if circumstances exist that give rise to a presumption of paternity under section 23.

No declaration where child placed for adoption.

20(8)

The court shall not hear an application under this section where the Director of Child and Family Services files with the court a certificate that the child who is the subject of the application was placed for adoption prior to notice of the application being served upon him.

Blood tests.

21(1)

On the application of a party to a proceeding under section 19 or 20 the court may, subject to conditions it considers appropriate, give the party leave to obtain blood tests of persons named by the court and to submit the results in evidence.

Incapacity.

21(2)

Where a person named by the court is not capable of consenting to having a blood test taken, the consent shall be deemed to be sufficient

(a) where the person is a minor of the age of 16 years or more, if the minor consents;

(b) where the person is a minor under the age of 16 years, if the person having the custody or guardianship of the minor consents; and

(c) where the person is not capable of consenting for any reason other than minority, if the person having his charge consents and a medical practitioner certifies that the giving of a blood sample would not be prejudicial to his proper care and treatment.

Inference from refusal.

21(3)

Where a person named by the court refuses to submit to a blood test the court may draw any inference it considers appropriate.

Order to be recognized.

22(1)

Subject to this section, a declaratory order made under section 19 or 20 shall be recognized for all purposes.

New evidence.

22(2)

Where a declaratory order has been made under section 19 or 20 or an application for such an order has been dismissed and evidence that was not available at the previous hearing becomes available the court may, on application, hold a new hearing and discharge the previous order.

Effect of new order.

22(3)

Where an order is discharged under subsection (2),

(a) rights and duties which have been exercised and observed; and

(b) interests in property which have been distributed as a result of the order before its discharge;

are not affected.

Presumption of paternity.

23

Unless the contrary is proved on the balance of probabilities, and subject to section 34 a man shall be presumed to be the father of a child in one or more of the following circumstances:

(a) He was married to the mother at the time of the child's birth.

(b) He was married to the mother by a marriage that was terminated by

(i) death or judgment of nullity that occurred within 300 days or such longer period as the court may allow, before the birth of the child; or

(ii) divorce where the decree nisi was granted within 300 days, or such longer period as the court may allow, before the birth of the child.

(c) He married the mother after the child's birth and acknowledged that he is the father.

(d) He and the mother have acknowledged in writing that he is the father of the child.

(e) He was cohabiting with the mother in a relationship of some permanence at the time of the child's birth or the child was born within 300 days, or such longer period as the court may allow, after the cohabitation ceased.

(f) He has been found or recognized by a court to be the father of the child.

Orders to be filed with director.

24(1)

The registrar or clerk of every court in Manitoba shall file in the office of the director a statement respecting each order or judgment of the court which makes a finding of parentage of that is based on a recognition of parentage.

Acknowledgements may be filed with director.

24(2)

A written acknowledgement of paternity referred to in section 23 may be filed in the office of the director.

Inspection of filings.

24(3)

On application and on satisfying the director that the information is not to be used for an unlawful or improper purpose, any person may inspect and obtain from the director a certified copy of

(a) a statement or acknowledgement filed under this section;

(b) a statutory declaration filed under subsection 3(7) of The Vital Statistics Act; or

(c) a request filed under subsection 3(9) of The Vital Statistics Act.

Director need not amend.

24(4)

Subject to subsection (5), the director is not required to amend the register of births in relation to a statement or acknowledgement filed under this section.

Director shall amend.

24(5)

On receipt of a statement under subsection (1) or where there is no conflicting presumption on receipt of an acknowledgement under clause 23(d) in relation to a declaratory order made under section 19 or 20, the director shall amend the register of births accordingly.

PART III

RECOGNITION OF EXTRA-PROVINCIAL DETERMINATION OF PATERNITY

Definitions.

25

In this Part

"extra-provincial declaratory order" means an order in the nature of a declaratory order provided for in Part II but made by a court outside of Manitoba; ("ordonnance déclaratoire extra-provinciale")

"extra-provincial finding" means a judicial finding of paternity or maternity that is made incidentally in the determination of another issue by a court outside of Manitoba and that is not an extra-provincial declaratory order. ("déclaration extra-provinciale")

Recognition of orders made elsewhere in Canada.

26

An extra-provincial declaratory order that is made in Canada shall be recognized and have the same effect as if made in Manitoba.

Recognition of orders made outside Canada.

27

An extra-provincial declaratory order that was made outside Canada shall be recognized and have the same effect as if made in Manitoba, if

(a) at the time the proceeding was commenced or the order was made, either parent was domiciled,

(i) in the territorial jurisdiction of the court making the order, or

(ii) in a territorial jurisdiction in which the order is recognized;

(b) the court that made the order would have had jurisdiction to do so under the rules that are applicable in Manitoba;

(c) the child was habitually resident in the territorial jurisdiction of the court making the order at the time the proceeding was commenced or the order was made; or

(d) the child or either parent had a real and substantial connection with the territorial jurisdiction in which the order was made at the time the proceeding as commenced or the order was made.

Exceptions.

28

A court may decline to recognize an extra-provincial declaratory order and may make a declaratory order under this Act where,

(a) new evidence that was not available at the hearing becomes available; or

(b) the court is satisfied that the extraprovincial declaratory order was obtained by fraud or duress.

Filing with director.

29(1)

A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, may be filed in the office of the director but where the extra-provincial declaratory order is made outside of Canada, the copy shall be accompanied by,

(a) the opinion of a lawyer authorized to practice in the province that the declaratory order is entitled to recognition under the law of Manitoba;

(b)a sworn statement by a lawyer or public official in the extra-provincial territorial jurisdiction as to the effect of the declaratory order; and

(c)such translation, verified by affidavit, as the director requires.

Amendment of record.

29(2)

Upon the filing of an extra-provincial declaratory order under this section the director shall amend the register of births accordingly, but where the extra-provincial declaratory order contradicts paternity or maternity found by an order already filed, the director shall restore the amended record as if unaffected by it or previous orders.

Liability of director.

29(3)

The director is not liable for any consequences resulting from filing under this section material that is apparently regular on its face.

Evidence.

30

A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, is admissible in evidence without proof of the signature or office of any person executing the certificate.

Findings elsewhere in Canada.

31

An extra-provincial finding that is made in Canada shall be recognized and have the same effect as if made in Manitoba under the same circumstances.

Findings outside Canada.

32

An extra-provincial finding that is made outside Canada by a court that has jurisdiction to determine the matter in which the finding was made as determined by the conflict of laws rules of Manitoba shall be recognized and have the same effect as if made in Manitoba under the same circumstances.

Evidence.

33

A copy of an order or judgment in which an extra-provincial finding is made, certified under the seal of the court that made it, is admissible in evidence without proof of the signature or office of any person executing the certificate.

Presumption where conflicting findings.

34

There shall be no presumption of paternity where contradictory findings of paternity exist, whether extra-provincial or otherwise.

Application.

35

This Part applies to extra-provincial declaratory orders and extra-provincial findings whether made before or after they come into force.

PART IV

CHILDREN

Obligation to support children.

36(1)

Each parent of a child has the obligation, subject to The Child and Family Services Act, to provide reasonably for the child's support, maintenance and education, whether or not the child is in that parent's custody, until the child attains the full age of 18 years.

Child of spouse.

36(2)

A spouse has the obligation to provide reasonably for the support, maintenance and education of any child of the other spouse, while the child is in the custody of the spouses and until the child attains the full age of 18 years, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

Child of common law spouse.

36(3)

A person who is cohabiting with, but is not married to, another person has the obligation during cohabitation to provide reasonably for the support, maintenance and education of any child of that other person, while the child is in the custody of the persons or either of them and until the child attains the full age of 18 years, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

Person standing in loco parentis.

36(4)

A person who stands in loco parentis to a child has the obligation to provide reasonably for the support maintenance and education of that child until the child attains the full age of 18 years, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

Support beyond age 18.

36(5)

A court on application where it is satisfied that a child is unable, by reason of illness, disability or other cause, to withdraw from the charge of any person named in this section or to provide himself with the necessaries of life may extend the obligation to provide support to that child beyond age 18 on such terms as the court considers just in the circumstances.

Factors affecting order.

37

In determining whether to make an order under this Part or section 46 and what provisions the order should contain and, in particular, in determining what is reasonable under section 36 for the purposes of the order, a court shall consider the following factors, and any additional factors it deems relevant:

(a) The cost of residential accommodations, housekeeping, food, clothing, recreation and supervision for the child.

(b) The need for and cost of providing a stable environment for the child.

(c) The financial circumstances and other financial obligations of the persons who have the obligation to provide for the child's support, maintenance and education.

Application for order.

38

Any person on behalf of a child may apply for an order under this Part.

Joint rights of parents in children.

39(1)

Subject to subsection (2), rights of parents in the custody and control of their children are joint but where the parents have never cohabited after the birth of the child, the parent with whom the child resides has sole custody and control of the child.

Either parent may apply for custody of child.

39(2)

Either parent of a child may make an application

(a) for custody of the child; or

(b) for access to the person of the child;

and upon the hearing of the application the court may order that

(c) custody of the child be committed to the applicant or respondent or both;

(d) the non-custodial parent have access, at such times and subject to such conditions as the court deems convenient and just, for the purpose of visiting the child and fostering a healthy relationship between parent and child.

Evidence re conduct of parent

39(3)

In considering an application under this section, a court shall only receive evidence of the conduct of either parent if the court is satisfied that the evidence bears directly on the parent's ability to care properly for the child.

Access of parent to school and medical records.

39(4)

Unless a court otherwise orders, the non-custodial parent retains the same right as the parent granted custody to receive school, medical, psychological, dental and other reports affecting the child.

Order.

40

Upon an application under this Part, a court may make an order containing any one or more of the following provisions:

(a) That the person charged with the obligation to provide for the support, maintenance and education of the child pay such lump sum or periodic sums or both for the benefit of the child as the court may determine.

(b) That the amount or amounts determined under clause (a) be paid on behalf of the child to

(i) the person who has custody of the child, or

(ii) a court clerk or other court officer, or

(iii) a receiver appointed under section 58, or (iv) any other person as trustee for the child, as the court deems fît.

(c) That the amount or amounts paid under the order be used for such purposes, in such manner and subject to such terms and conditions as the court may in the order provide.

(d) That the person against whom the order is made pay court costs, and reasonable solicitor's costs, in such amounts as the court may determine.

PART V

PROCEDURE

Jurisdiction of Queen's Bench.

41(1)

An application for an order under this Act may be made to the Court of Queen's Bench.

Jurisdiction of Provincial Court.

41(2)

An application for an order other than an order under clause 10(1)(c) or section 13 may be made to the Provincial Court (Family Division).

Practice and procedure.

42

Except as herein otherwise provided, a proceeding under this Act shall be carried on in accordance with the practice and procedure of the court in which it is taken.

Interim order.

43

Where a court before which an application is made under this Act is satisfied that the delay necessary to permit compliance with section 12 or any rules of the court, or any other delay that is necessary before an order can be made, may prejudice or work a hardship upon any party to the proceedings or any child of a party to the proceedings, the court may at any time after the application is made, upon the motion of any party and upon notice to all other parties, make such interim order as it deems just.

Ex parte interim order.

44

An interim order under section 43 may, upon the motion of any party to the proceedings and if the court is satisfied that it is necessary, be made ex parte.

Review of order.

45

An order made under this Act may require the parties to return after a specified interval to the court making the order for a review of the provisions thereof, and upon the review the court may vary or discharge the order.

Application to vary or discharge order.

46

An order made under this Act or under The Wives' and Children's Maintenance Act or under The Family Maintenance Act, being chapter 47 of the Statutes of Manitoba, 1977 or an order made under The Child Welfare Act (now repealed) or under the Child and Family Services Act granting custody of, access to or maintenance for a child, may upon an application therefor be varied from time to time or discharged by the court making the order, if the court thinks it fit and just to do so, but no variation or discharge granted under this section shall be effective before the date on which the application therefor is made.

Spouse a compellable witness.

47(1)

In any proceeding under this Act, spouses are competent and compellable to give evidence against one another.

Marriage counsellor not a compellable witness.

47(2)

A person counselling or assisting spouses in reconciliation efforts during an adjournment under section 12 is not competent or compellable to give evidence for or against either spouse in any proceeding under this Act or otherwise, and evidence of any statement, admission or communication made to the person in the course of the reconciliation efforts is not admissible for or against either spouse in the proceeding.

Consent orders.

48

A court may, without a hearing, make an order under this Act where the parties consent and have agreed as to the provisions of the order.

Information as to address.

49(1)

Where, upon application to a judge or master, it appears to the judge or master that,

(a) for the purpose of bringing an application for payment of maintenance or custody; or

(b) for the purpose of enforcing an order for payment of maintenance or an order for custody; the proposed applicant or person in whose favour the order is made has need to learn or confirm the whereabouts of any person, the judge or master may order any person, the government or any agency of the government to provide the judge or master with such particulars as to the whereabouts of that person as are contained in its records, and the person, government or agency shall comply with the order and the judge or master may then give the particulars to any person the judge or master considers appropriate.

Compliance with the order.

49(2)

The giving of information in accordance with an order under subsection (1) shall be deemed for all purposes not to be a contravention of any Act, regulation or common law rule of confidentiality.

Crown bound.

49(3)

Her Majesty in right of Manitoba is bound by this section.

Penalty.

50(1)

A person who fails to comply with a provision of this Act or with a provision of an order or interim order made under this Act is liable on summary conviction to a fine of not more than $500. or to imprisonment for a term of not more than 30 days or to both.

Imposition of penalty.

50(2)

Where a person is before a court for any purpose under this Act, other than under subsection (1), the court, if satisfied that the person has failed to comply with a provision of this Act or with a provision of an order or interim order made or enforced under this Act, may there and then by order impose any of the penalties provided in subsection (1).

Appeals.

51(1)

An appeal lies to the Court of Appeal from any order or interim order made under this Act.

Effect of appeals.

51(2)

Where an appeal is taken from an order made under this Act, the appeal shall not operate as a stay of proceedings, but the order may be enforced as though no appeal were pending unless the court making the order or the Court of Appeal otherwise orders.

PART VI

ENFORCEMENT OF MAINTENANCE ORDERS

Definitions.

52

In this Part

"designated officer" means a person employed under The Civil Service Act and designated by the Attorney-General for the purposes of this Part,("fonctionnaire désigné")

"order" means,

(a) an order or interim order for payment of maintenance made under this Act, The Child Welfare Act (now repealed), the Child and Family Services Act or The Wives and Children's Maintenance Act (now repealed), or

(b) a maintenance order, provisional maintenance order or interim maintenance order made in a jurisdiction outside of Manitoba and registered or confirmed within Manitoba under The Reciprocal Enforcement of Maintenance Orders Act. ("ordonnance")

Automatic application of enforcement provisions.

53(1)

The provisions of this Part apply in the case of any order, other than an order for the payment of a lump sum, made on or after January 1, 1980, unless the person entitled to receive the payments thereunder signs and files with the designated officer a statement in a form satisfactory to the designated officer indicating that this Part shall not apply in the case of that order and in that event this Part ceases to apply upon the filing of the statement.

Non-application to prior orders or lump sum orders.

53(2)

The provisions of this Part do not apply in the case of any order made before January 1, 1980 or in the case of any order for the payment of a lump sum whenever made, unless the person entitled to receive the payments thereunder signs and files with the designated officer a statement in a form satisfactory to the designated officer indicating that this Part shall apply in the case of that order and in that event this Part becomes applicable upon the filing of the statement.

Subsequent opting into or out of enforcement provisions.

53(3)

A person who signs and files a statement under subsection (1) or (2) in respect of an order may, at any time, sign and file a further statement in respect of the order indicating that the provisions of this Part shall apply or shall not apply to the order and upon the filing of each further statement those provisions become applicable or cease to apply to the order, as the statement may indicate.

Social allowance recipients.

53(4)

Where a person in whose favour an order was made is receiving social allowance or assistance under The Social Allowances Act, the Executive Director of Social Services appointed under The Social Services Administration Act or a person acting under his authority shall sign and file with the designated officer a statement indicating that the provisions of this Part shall apply in the case of that order, and upon the filing of the statement those provisions if not already applicable to the order under this Part become applicable and, notwithstanding any other provision of this Act, remain applicable so long as the person in whose favour the order was made continues to receive the social allowance or assistance.

Default under Divorce Act orders, etc.

53(5)

In the case of an order or interim order for alimony, alimentary pension or maintenance payments made by a court other than under this Act, The Child Welfare Act (now repealed), The Child and Family Services Act, or The Wives and Children's Maintenance Act (now repealed) the court may make all or any of the provisions of this Part applicable thereto, with the necessary changes.

Remittance of payments to designated officer.

54(1)

The person required to make the payments under an order shall remit each payment to the designated officer and the desigated officer, after receiving and recording the payment, shall forward the payment to the person entitled to receive it.

Records.

54(2)

The designated officer shall make and maintain such records of orders, and of payments received and forwarded under subsection (1) in respect of those orders, and such other records as will enable him to ascertain with reasonable dispatch the occurrence of any default in payment under the orders.

Certificate of designated officer.

54(3)

In any proceeding a computer print-out

(a) showing, as of the date of the print-out, the state of the account, as between the parties to the proceeding, in respect of the payments required to be made by one party to the other pursuant to an order; and

(b) certified by the designated officer as being a true copy of the record in respect of the state of that account as of that date;

is admissible in evidence, on behalf of either party, as prima facie proof of the state of the account, without prior notice to the other party of the intention to submit the print-out in evidence and without proof of the signature of the designated officer on the certificate.

Action in cases of default.

55(1)

Where the designated officer ascertains that default in payment has occurred under an order, he shall take such lawful steps as he deems requisite for the purpose of enforcing payment of the amount in default.

Information from various sources.

55(2)

The designated officer may require any person, the government or any agency of the government to disclose to the designated officer any particulars of the whereabouts of the person in default that it may have in its possession or control, and the person, government or agency shall notwithstanding anything to the contrary in any Act of the Legislature disclose the particulars to the designated officer and the giving of information in accordance with this section shall be deemed for all purposes not to be a contravention of any Act, regulation or common law rule of confidentiality.

Crown bound.

55(3)

Her Majesty in right of Manitoba is bound by subsection (2).

Enforcement proceedings.

55(4)

Whether or not any other enforcement proceedings are being taken, the designated officer may initiate one or more of the following:

(a) Proceedings to obtain a garnishing order.

(b) Registration of the order in a land titles office under section 59 and proceedings under The Judgments Act in pursuance of the registration.

(c) Proceedings to obtain a writ of execution.

(d) Proceedings to realize upon any bond or security deposited under subsection 57(4).

(e) Proceedings to obtain the appointment of a receiver under section 60.

(f) Proceedings to bring the person in default before a deputy registrar for an examination under section 56.

(g) Proceedings to bring the person in default before a judge or master for a hearing under section 57.

(h) Proceedings for the imposition of a penalty under section 50.

Screening proceedings before the deputy registrar.

56(1)

Whether or not any other enforcement proceedings are being taken, the designated officer may, by summons served personally or in any other manner a judge or master may direct upon the person in default, require the person

(a) to appear before a deputy registrar at a time and place stated in the summons, there to be examined in respect of the default and in respect of the employment, income, assets and financial circumstances of the person; and

(b) at or before the examination, to complete and file with the court a financial statement in a form satisfactory to the deputy registrar.

Action by deputy registrar.

56(2)

At the conclusion of an examination under subsection (1), the deputy registrar in addition to providing the financial information to the designated officer may

(a) refer the matter back to the designated officer for appropriate action under subsection 55(4);

(b) order the person in default to appear for a hearing under section 57;

(c) where a statement has not been filed under subsection 53(4) and the person entitled to receive the payments has agreed in writing to a payment plan proposed by the person in default, order payment of the arrears in accordance with the plan;

(d) where an application for variation of the order and cancellation of the arrears has been filed,

(i) where there is written verification that the person in default is unemployed and he proposes an acceptable interim payment plan, make an interim enforcement order in accordance with the plan, or

(ii) serve the person in default with a summons to appear under section 57;

(e) subject to subsection 53(4) and subsection (4) where the person in default has proposed a payment plan which the deputy registrar considers reasonable, make an interim order in accordance with the proposed plan;.

(f) adjourn the examination with or without conditions for a period not exceeding 28 days to permit

(i) the person in default to retain counsel, or (ii) the person in default to pay the arrears, or

(iii) the person in default to file and serve an application for a variation of the maintenance order and cancellation of the arrears, or

(iv) subject to subsection 53(4), the person entitled to the payments to opt out of the enforcement program pursuant to subsection 53(3), or

(g) subject to subsection 53(4), the person entitled to the payments to file a consent to a payment plan proposed by the person in default, or

(vi) the person in default to provide such further evidence as the deputy registrar may require including evidence of employment status, or

(vii) a recalculation by the designated officer of the amount in arrears where that amount has been brought into question by the person in default.

Warrant.

56(3)

Where

(a) the person in default has been served with a summons under subsection (1) and fails to appear as required before the deputy registrar; or

(b) the person in default fails to comply with an order of the deputy registrar;

a judge, a master or a deputy registrar may issue a warrant for the person to be arrested and brought before a judge or master for a hearing under section 57 or a deputy registrar for a hearing under subsection (1).

Notice of interim order.

56(4)

Where the deputy registrar has made an order under clause (l)(e), the designated officer shall notify the person entitled to the payments of the order and of that person's right under subsection (5) to have the matter heard by a judge or master.

Hearing.

56(5)

Where the person entitled to payment objects in writing to the interim order made under clause (l)(e), the designated officer shall issue a summons under subsection 57(1).

Enforcement proceedings before judge or master.

57(1)

Whether or not any other enforcement proceedings have been taken or could be taken, the designated officer may proceed with the hearing in that person's absence or issue a summons requiring a person in default under an order to

(a) appear at a hearing before a judge or master at a time and place specified in the summons to show cause why the order should not be enforced under this section; and

(b) file with the court, either before or at the time of the hearing, a financial statement in a form satisfactory to the judge or master.

Summons.

57(2)

A summons issued to initiate proceedings pursuant to this section shall be served personally or in such other manner as a judge or master may order and where a person who has been served with a summons fails to appear for a hearing, a judge or master may proceed with the hearing in that person's absence or issue a warrant for the person to be arrested and brought before a judge or master for a hearing under this section.

Enforcement hearing.

57(3)

At a hearing under this section, the judge or master shall inquire into the circumstances of the person in default, and may make an order

(a) imprisoning that person for a period not exceeding 30 days or fining that person an amount not exceeding $500. or both;

(b) for payment of the arrears in full by a specified date;

(c) for periodic payment on the arrears;

(d) adjourning the hearing with or without conditions where the judge or master is satisfied that the person in default cannot at that time make any payments on the arrears; or

(e) dismissing the proceedings.

Additional penalties.

57(4)

Where a judge or master makes an order under clause (3)(b) or (c), the judge or master may, at that time, also order

(a) that, upon failure to make any payment by a date specified in the order, the person in default be imprisoned for a period of not more than 30 days for each default or be fined in an amount not exceeding $500. for each default, or both;

(b) that the person in default deposit a specified amount in court, or with such person as the judge or master deems fit, to be held as security and for use in the event of default or in the event of any subsequent order increasing the amount of any payment to be made under an order;

(c) that the person in default enter into a bond in a specified amount, with or without sureties who shall severally justify and be approved by the judge or master, conditioned for the fulfilment of the order; or

(d) that the person in default provide some other security for the payment of any amount required to be paid under the order.

Disposition of security.

57(5)

Where a person deposits an amount as security under subsection (4), any balance remaining undisbursed upon the discharge of the order shall be returned to the person together with interest and less such necessary administration costs as the judge or master deems fit.

Imprisonment for default in security.

57(6)

Where a person fails to make a deposit or to enter into a bond pursuant to an order under subsection (4), the judge or master that made the order may order the person to be imprisoned for a period not exceeding 30 days or until the deposit is made or the bond is entered into.

Appeal to judge.

57(7)

An order of a master under this section may be appealed to a judge of the Court of Queen's Bench and the appeal shall be by trial de novo.

Late payment hearing.

57(8)

Whether or not any other enforcement proceedings have been taken or could be taken, where a person has made payments under an order after the due date thereof, the designated officer may issue a summons for that person to appear before a judge or master for a hearing to determine the cause of the late payments and after the hearing the judge or master may make any of the orders under subsection (3) or (4).

Effect of imprisonment.

58

Imprisonment does not discharge arrears of maintenance.

Filing order in Land Titles Office.

59(1)

An order may be registered in any Land Titles Office in the province and, if so registered, is an order to which sections 9 and 21 of The Judgments Act apply.

Exemptions.

59(2)

The exemptions provided by The Executions Act and The Judgments Act do not apply with respect to any process issued by a court to enforce an order.

Application of Garnishment Act

59(3)

The Garnishment Act applies with respect to any garnishment issued to enforce an order.

Appointment of receiver.

60(1)

Where there is default in respect of an order, a judge or master upon an application made by or on behalf of the person in whose favour the order was made may appoint a receiver of any moneys due, owing or payable to, or to become due, owing or payable to, or earned or to be earned by, the person against whom the order was made to the extent of the default and, in addition, to the extent of any instalments due or to become due under the order.

Appointment of receiver without formal application.

60(2)

Where a person is before a judge or master for any purpose under this Act but other than under subsection (1), the judge or master, if satisfied that the person is in default in respect of an order, may there and then appoint a receiver under subsection (1) without prior application.

Exemptions under Garnishment Act

60(3)

Where a receiver is appointed under this section, the wages of the person against whom the order was made are exempt to the extent set out in The Garnishment Act, and that Act applies to the order appointing the receiver as though it were a garnishing order.

No limitation on arrears.

61(1)

Subject to subsection (4), there is no limitation as to time on a recovery of periodic payments in default under an order.

Death of maintenance debtor.

61(2)

Where a person against whom an order was made dies and at the time of death any payments are in default, the amount in default is, subject to subsection (4), a debt of the estate and recoverable by the person entitled to the payments in the same manner as any other debt recoverable from the estate.

Death of recipient.

61(3)

Where the person entitled to receive payments under an order dies, the personal representative of the deceased may, subject to subsection (4), recover for the estate of the deceased any payments in default at the time of the death.

Remission of maintenance payments.

61(4)

Where payments under an order are in default, a judge of the court that made the order may, on application, relieve the debtor or the estate of the debtor of the obligation to pay the whole or part of the amount in default if the judge is satisfied

(a) that having regard to the interests of the debtor or the estate of the debtor it would be grossly unfair and inequitable not to do so; and

(b) that having regard to the interests of the person entitled to the payments or the estate of that person, it is justified.

PART VII

GENERAL

Rights are additional.

62

The rights given under this Act are in addition to and not in substitution for any rights given under any other law.

Limitation period.

63

No limitation period contained in any statute or law operates to bar or affect the right to take proceedings or to enforce any order made under this Act.

Orders assignable.

64(1)

An order for the maintenance of a spouse or the support of a child made under this Act may be assigned to the Executive Director of Social Services or a person acting under the authority of the Executive Director.

Notice to persons affected.

64(2)

The Executive Director of Social Services or the person acting under the authority of the Executive Director shall serve notice, either personally or by registered mail, of the execution of an assignment under subsection (1) upon the person required to make the payments under the order.

Payments made to Executive Director.

64(3)

Where notice has been served under subsection (2), the Executive Director of Social Services or the person acting under the authority of the Executive Director shall be entitled to the payments due under the order and shall have the same right to be notified of and participate in any proceedings under this Act to enforce, vary or discharge the order as has the person who is entitled to the payments under the order.