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INTERIM MOTIONS IN FAMILY PROCEEDINGS
1. Interim Motions - The Theory
3. Affidavits in Interim Motions
3. Expungment or Striking Affidavits
An interim motion is an application brought to court for relief pending the hearing or trial of an action. In family proceedings, interim motions are extremely useful. Primarily, they are used to settle issues of custody and access, support, and preservation of the person and property, on a temporary basis, while the parties ready the action for trial. Further discussion of their use will be found below.
The Interim Order will generally stand until trial. In the "interim" - that period between the commencement of proceedings and the final adjudication at trial - it can regulate the dealings between the parties and create rights. An Interim Motion may also be useful in the pre-trial period to assist in moving the case along. The Interim Order is capable of enforcement in the same way as the Final Order. Because of the fact that most cases do not go to trial, the Interim Order can be extremely important in influencing settlement.
2 The Statutory Basis of Interim Motions
An interim motion in a family proceeding is handled differently than in general civil proceedings. The general "civil" rules do not apply except where there is a conflict with the provisions of Rule 70:
Rule 70.02 The Rules apply to family proceedings, except
where this Rule expressly or by implication provides otherwise.
Before a court can grant interim relief, an action must have been started (or in the case of injunctive relief pursuant to Rule 40.01, upon an undertaking to commence an action), and there must be statutory provision to grant interim relief.
1. Interim Relief under The Family Maintenance Act
The Family Maintenance Act, in s.43 provides:
"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."
And in s.44, that Act provides:
"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."
The court must satisfy itself that "hardship" will result if no order is made, and that it is deemed "just" to make the order.
2. Interim Relief under The Divorce Act
The Divorce Act provides for interim orders in ss.15(3) and 16(2). The test
in these cases is the same as on the final hearing.
3. Interim Relief under The Family Property Act
There is only a limited right to an interim order under The Marital Property
Act. The courts do occasionally make orders for the "preservation"
or "use" of property. The provisions of s.18.1 read as follows:
18.1(1) Pending the disposition of an application under this Act, the court may make such interim order as it considers necessary and reasonable for the proper application of the Act.
18.1(2) An interim order may be made subject to any terms and conditions that the court considers appropriate.
Other statutes make specific provision for interim applications in particular situations, such as access proceedings in protection cases under The Child and Family Services Act, for example. The statute in question should always be consulted.
Generally, interim motions in family matters are used to protect persons, preserve property, obtain financial support, or to deal with the care and control of children.
Some examples of these are:
Interim proceedings are also useful to govern the conduct of the proceedings themselves, and the process of getting matters ready for trial, such as:
This listing is by no means exhaustive.
4 Distinctions Between Interim and Final Orders
It is important to note some of the distinctions between interim relief and final relief, as well as the relationship between the two kinds of relief. Consider the following propositions:
The power of an interim order expires with the pronunciation
of the decision at trial, whatever that resolution might be (Papp v. Papp
[1970] O. R. 331 (C. A.).
This can be an important point. On pronouncement of the final order, if the court calls for support to commence, say, on the first of the following month, the interim order which had called for payments on the 1st and 15th of this month expires. Perhaps a payment on the 15th not yet due under the interim order would thereafter not be payable.
The court cannot grant interim relief, unless there
is jurisdiction to grant such a request on a final basis.
This may be so rudimentary a requirement as the filing of an Answer, in which the request for the final relief is made. A claim for "support" in the answer or petition will well-found an interim claim for support. It is arguably required that a request for "interim relief", itself, be made in the petition or answer (Segal v. Segal (1988), 14 R.F.L. (3d) 453).
Where the court could not or probably would not grant
certain final relief at trial, it cannot or ought not, as the case may be,
grant similar interim relief.
While the interim application is generally not an opportunity to delve into the merits of the final application, where the court has serious doubt about the final outcome, it will consider whether an interim order is appropriate. Where the issue goes to jurisdiction, there should be no question that the court might do on an interim basis what it could not do on a final basis. Where there are issues of fact, to be proven at the trial, the court might be forced to postpone making an interim order.
For example, in a child support case, where paternity is disputed, it probably would be correct for the court to refuse to make an interim order of support. A finding at trial negative on the paternity issue would mean there is no ultimate support obligation for the respondent and, therefore, there was none in the interim. At that point, the chances of recovery of monies paid in the interim are probably not very good. Not every paternity case will fall into this void. Courts, where they have been able to rest on one of the presumptions of paternity under The Family Maintenance Act, have made interim awards of support in disputed paternity cases.
The court cannot grant final relief on an interim basis.
A finding of paternity, for example, is a final disposition made by the court. It is a recognition for all purposes of a status. There cannot logically be a finding of interim parentage. Other forms of relief are available on a final basis only. Trivial examples are divorce, or sale of property. The interim order cannot eliminate the court's final decision-making at the trial. One tactic to avoid this difficulty is to ask the court to sever the preliminary issue, and move to a quick adjudication of it (Palansky v. Palansky, (unreported) July 20, 1989; appeal dismissed).
5. Survival of the Interim Order
An important issue is the survival of an Interim Order after proceedings have been concluded. Counsel should be aware that an Interim Order under the Family Maintenance Act might survive a Final Order under the Divorce Act and that an Interim Order under the Divorce Act might survive a Final Order under that act, where the final order does not deal with the subject matter. This is of particular importance to the holders of restraining orders under the Family Maintenance Act. Unless specifically dismissed at the final hearing of the Divorce, these restraining orders will continue in force.
6. Commencement of Proceedings - Interim Motions
Interim proceedings can be commenced once the court process has been initiated by the filing of a "grounding action", such as a petition.
The commencement of proceedings, such as a Petition under the Divorce Act or The Family Maintenance Act, by a Notice of Application, or by Statement of Claim under the provisions of a statute, will constitute such a "grounding action". Subject to the provisions of the applicable statute, or pursuant to the inherent jurisdiction of the court, the court may consider the motion and grant relief.
An interim motion is almost always heard and determined by the court on the basis of a Notice of Motion and supporting affidavit evidence (Rules 39.01(1) and 70.35(1)), although in an appropriate case the court may consider viva voce evidence.
The interim motion and affidavit must be served (Rule 37.06(6)), and filed (Rule 70.32.1(3) within the time provided by the Rules, that is, by 2:00 p.m. four days before the set down date. The initiating party is limited to one affidavit (Rule 70.32.1(4). The responding party is constrained to file responding material (Rule 39.01(3)) in a timely fashion, as well. The moving party may file a further affidavit limited to responses to new material (Rule 70.32.1(5). While there is no limit to the length, or the number of affidavits filed, practical considerations of advocacy will apply. Further affidavits of the parties are only permitted with leave of the court (Rule 70.32.1(6).
In an appropriate case, the court will abridge the time for service of the motion, or grant "short leave". Where situations of urgency or necessity require, the court may also entertain an "interim motion without notice" to the responding party, formerly called an ex parte motion. Special rules and considerations apply to this form of interim motion, and will be dealt with below as a separate topic.
Each of the parties is entitled, subject to the Rules, to cross-examine the deponent of any affidavit filed on the motion (Rule 39.02(1)), or to cross-examine any proposed witness (Rule 39.02(1)). The Rules provide that the cross-examination must be done expeditiously, "with reasonable diligence" (Rules 39.02(3) and 39.03(3)), and that without leave of the court no further affidavit may be filed after the examination.
Thus each party must declare their position early, and proceedings should not be dragged out with endless responding affidavits and cross-examinations. The transcript of the cross-examination may (some argue "must") then be filed. Unlike a discovery, the transcript as a whole is evidence in the cause, and either party may refer to it on the argument of the motion.
Procedure in the Family Division on motions is somewhat
different than in ordinary civil motions and will be discussed at some length
in the next section.
| Motions Docket | |
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1. Overview
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Practice respecting interim motions changes from time to time, and as result in large measure is communicated to the profession in an informal manner by pronouncements in court or by "notices" distributed to the profession.
The notice of motion (in the Winnipeg Centre of the Family Division) will be returnable for 9:00 a.m. on a Tuesday morning, where the matter will appear on the Family Law Motions docket list. Currently this list is called in Courtroom 223 of the Old Law Courts Building, located at the corner of Broadway and Kennedy Street.
The calling of the docket is generally presided over by a deputy registrar (usually the same person who acts as the motions co-ordinator) of the court. Other courtrooms, judge's or master's offices are manned concurrently by a master and the weekly standby motions judge, respectively. Matters are referred to the master or the judge by the deputy registrar.
The deputy registrar calls the list in the order posted, after collecting consent adjournment forms, and after having dispatched those present at 9:00 a.m. who require a referral to the standby master or judge.
Counsel who arrive by 9:00 a.m., or prior to the calling of the list are able to line up to see the deputy registrar to secure consent adjournments or obtain referrals to the standby master or judge. A consent adjournment form can be filled out and handed to the clerk whereupon counsel may leave. If a contested adjournment or simple uncontested motion is required, counsel may receive a file requisition form, and then personally retrieve the file from the court's General Office on the main floor of the New Law Courts Building. Once the list is underway, counsel must wait their turn.
The list, to be found posted on the notice boards in the hallways of the courthouse is also deposited on the counsel table. The listing will show, in sequence by the court file number, the case name, its number on the list, and the names of counsel of record.
The number of times that a matter has been on the docket is critical, as the court will allow any given matter only 4 appearances on the list, after which it will be struck-off if not ready to proceed immediately. Once a matter is struck-off, counsel must file a requisition and pay the appropriate fee to have it brought back on. This may also require a re-service.
Motions without notice should not be set down for the Tuesday morning list, but brought forward when ready at any time before the duty judge. These motions are discussed more fully in the section "Motions Without Notice" below.
Once the matters suitable for consent adjournment or immediate referral are dealt with, the list is called. The deputy registrar deals with the remainder in the following way:
(a) Where Matters are to be Adjourned by Consent
The deputy registrar will allow matters to be adjourned a total of 3 times after the first appearance on the list. If not ready to proceed, on the 4th appearance, it will be struck-off. Adjournments can be arranged by telephone up until 3:00 p.m. on the Monday preceding, by filing the appropriate form before the list is called, or by speaking to the adjournment when the list is called.
(b) If a Matter is Ready to Proceed
Where both counsel are ready to argue, time of up to one hour's duration will be assigned for a date in the upcoming weeks, depending on the time of year and the availability of judges, for the oral argument. If longer than one hour is required, or if there will be viva voce evidence on the motion (a rare event, indeed), the parties will be referred to the trial co-ordinator's office for the necessary arrangements to be made. Unless a judge is "seized", as that term is applied to motions in the Family Division, then it will be heard by one of the judges on duty during the week in which the hearing date is set.
In order to qualify to have the matter heard counsel must complete a fill-in-the-blanks motions brief, or undertake to do so, setting out what the issues are, what material will be used and certify that no further material will be filed.
The court generally will not disclose who the judge will be. It is likely to be a family division judge, however there is a continuing rotation of civil judges into the division usually in three-month stints.
The assignment of time is dependent upon counsel's ability to co-ordinate their diaries with the available "judge-time". As a practical matter, prior to their matter being called counsel should co-operatively compare their availability and attempt to accurately estimate the length of time required. Subject to the availability of counsel, a judge, and the efficient use of court-time, counsel will usually be able to obtain a hearing within one to 4 weeks. If the logistics fail, and no time is available, the matter can be adjourned "to call in for time". In this circumstance, counsel will contact the motions co-ordinator by telephone to canvass possible times which will then be compared and settled between counsel. In a rare case, where counsel cannot agree the matter may have to come back before a Master of the court to settle the hearing date.
(c) Where a Particular Judge is "Seized" of a Matter
"Continuations" or "variations" are generally heard by
the judge who granted the preceding order. These are dealt with usually on
Friday mornings which are generally set aside by the court for each of the
judges to deal with their continuations, reviews, and matters of which they
are "seized". Generally when a trial date is set it will exclude
Friday mornings for this reason,
[NOTE RE SEIZED: The term "seized" is used loosely in the motions system context, and not necessarily in the same way as that term has come to be defined at law. In this context it describes matters with respect to which a particular judge has had a connection. Where a judge has dealt with a matter previously, unless it was only for the purposes of a consent order where no adjudicative function was performed, a judge is described as being "seized". This designation applies to variations of final orders, or where the judge has dealt with a matter on a prior interim motion. The term is applied even where the prior matter has long ago been completed, and the judge might legitimately be referred to as "functus" on the matter. The purpose of this rule of "practice" is to attempt to keep litigants before one judge insofar as possible, to avoid "judge-shopping", and to encourage the final disposition of a case by a trial. The Court of Appeal has repeatedly exhorted the Family Division to adopt this practice. It does not usually apply to civil side judges who have heard the family matter initially]
While a judge who has dealt with a case on a interim basis is not technically, or automatically proscribed from hearing the trial, as is the judge at pre-trial for example, the general practice is that the interim judge does not hear the trial. An objection to the "interim" judge acting as the trial judge would have to be well-founded in bias or some other ground. Litigants may have very good arguments to make where the interim judge has received and relied on evidence that might very well be excluded at a trial, or where the judge has made prejudicial pronouncements about the credibility or character of one of the parties in the course of an interim motion.
(d) Referral to the Master or Standby Judge
Having obtained a "file requisition" form and having obtained, and signed for, the file from the office located on the main second floor of the new Law Courts Building, counsel will then deliver the file to the clerk in the courtroom, indicated on the form. The clerk will gather the files and call in the judge who will deal with the matters usually in the order they were brought in. Masters do not have clerks and counsel can bring the file in directly, subject of course to allowing those ahead to finish their business first.
Referrals will be given to the master where there are contested adjournments, and to the judge where the matters are by consent, uncontested and short, or urgent and minor.
Generally, arguments before the master will be limited to 10 minutes, and before the judge to 5 minutes. The file will be left with the court officer, unless there is a further referral, such as from the master to a judge or back to the docket court, in which case the file remains with counsel.
(e) Contested Adjournments before the Master
The master may grant the adjournment, refuse it, or make it subject to conditions. Depending on the master's ruling, the lawyers may be:
The master's discretion is limited by statute. As a provincially-appointed official there is no s. 96 power. This is similar to the limitation of the power of a Provincial Court judge who may operate only in accordance with the authority of the enabling statute, without the inherent jurisdiction enjoyed by the justices of the so-called superior court. While The Queen's Bench Act and Rules provide that the master has pretty broad jurisdiction, it is traditionally under-utilized in Manitoba compared to other provinces, notably Ontario, where masters rule on issues of interim support and the like.
Rule 37.03(2) expresses that matters "within the jurisdiction of a master shall be made to a master", but Rule 37.03(2)(c) provides that where "the motion is for interim relief in a family proceeding where custody, access, support or property is at issue...the motion may be made to a judge". In practice, this rule is treated as requiring the matters of interim custody, access, support, or property in family cases to be heard by judges, and not masters.
The master can and does make rulings on adjournments subject to terms and conditions and has the discretion to award costs. A typical concern of counsel is that the adjournment be subject to conditions, such as, the imposition of time limits for the party opposite will file his or her material or to undertake and complete examinations.
3. Judicious Use of the Telephone
The setting of time to have a motion argued, the obtaining of adjournments,
or the advice that a matter will be the subject of a consent court order,
are all matters which can and, where possible, should be dealt with by telephone.
The deputy registrar in charge of the Motions Docket will receive the telephone
requests of counsel for such purposes up to 3:00 p.m. on the preceding Monday.
Such adjournments count for the purposes of the "4-appearances-on-the-list-and-the-motion-is-struck-out"
rule, however, but they do save counsel's time (and therefore the client's
cost).
| Preparation of Affidavit Material | |
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Jurisdiction
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Custody and Access
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Support
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Sole Occupancy; Postponement
of Sale
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Restraining and Preservation
Orders
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Financial Disclosure
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Preparation of Affidavit Material
The form and content of affidavits filed in support of the interim motion is critical. The affidavit should clearly set out the facts, and evidence, upon which the party will want the court to rely. While counsel will have the opportunity to argue, the oral argument is not the time to attempt to shore up the evidence or otherwise improve upon the material which has been filed. A frequent criticism levelled at practitioners by the Bench is with respect to the quality of the affidavits filed in interim proceedings.
1. The Rules Concerning Affidavits
An understanding of the use of affidavits on interim motions begins with a knowledge of the Rules. The important ones are set out below:
4.07(1) An affidavit used in a proceeding shall,
(a) be in Form 4D;
(b) be expressed in the first person;
(c) state the full name of the deponent and, if the deponent is a party or a lawyer, officer, director, member, or employee of a party, shall state that fact;
(d) be divided into paragraphs, numbered consecutively, with each paragraph being confined as far as possible to a particular statement of fact; and
(e) be signed by the deponent and sworn or affirmed
before a person authorized to administer oaths or affirmations.
4.07(2) An affidavit shall be confined to the statement of facts within the
personal knowledge of the deponent or to other evidence that the deponent
could give if testifying as a witness in court, except where these rules provide
otherwise.
39.01(4) An affidavit for use on a motion may contain statements of the deponent's
information and belief, if the source of the information and the fact of the
belief are specified in the affidavit.
70.35(1) All interlocutory proceedings shall be commenced by notice of motion
supported by affidavit which shall clearly and concisely set forth the fact
upon which the moving party relies, and the affidavit shall not contain argument.
Counsel should early on develop a consistent and reliable habit for taking affidavits. Because of the routine nature of the event, to avoid later embarrassment or worse, the only safe practice is to adopt a proper procedure and never deviate from it so that you can safely say you have complied, on the particular occasion in question, because you always do.
It is never appropriate to have a client sign an affidavit in anything less than complete form. It is a false document where there are blanks to be later filled in, or changes to be made after the client has gone. If the document is described as having been "sworn", it must have actually been sworn on a Bible, after the person swearing the document has told the officer that the person has read it, is aware of its content, and that it is true. It is probably safer to have all deponents affirm.
Changes to any part of an affidavit must be authenticated by the person taking the affidavit. This is done by bracketing the erasure or interlineation and intitialling it.
It is bad practice, and frankly quite suspicious, to have the last page of the affidavit only have the last paragraph which says "I make this affidavit in good faith", the jurat and the deponent's signature.
2. Content of the Affidavit Material
The court will make its decision on the facts and the evidence which is properly before it. See Rule 39, "Evidence on Motions and Applications".
Evidence on a motion reaches the judge in two or three very limited ways. The first and most common way is through the content of the affidavits and the exhibits properly attached to it. Another is from transcripts of cross-examinations of deponents of affidavits. The third, and least used method, is by examination of a witness pursuant to Rule 39.03(1).
If there is no evidence upon which the court can make an order, even if it is unopposed, the court should not grant the relief.
The first rule, therefore, is that the moving party's affidavit(s) should set forth sufficient facts which will constitute evidence upon which the court can rely. The court needs, firstly, to satisfy itself that there is jurisdiction and then that it has a factual basis upon which to grant relief.
The responding party's affidavit(s) in reply will be referred to also, but counsel must be aware that issues of credibility are not easily resolved by affidavits, or even by the transcripts of cross-examinations.
While it is important not to let material allegations go unchallenged or unanswered, not every statement or allegation made by the other side will fall into that category. It is important to remember that an affidavit is not a pleading, but a statement, in your client's words, of the facts to which he or she can attest.
Where it is necessary to attempt to refute an allegation, it is preferable to respond in context, rather than to paragraph numbers. Blanket denials or convoluted cross-references to numbered paragraphs in the opposing party's affidavit are cumbersome, and not likely to be followed by the judge. It is preferable to re-state the objectionable material, put it in context, and respond to it. Many lawyers fear this approach. They cynically expect that another repetition of the offensive allegation may tend to give it credence or, at the very least, make it more memorable.
Exhibits are the subject of Rule 4.07(3). They may be attached to the affidavit, or if referred to as "produced and shown to the deponent" shall not be attached but deposited with the registrar for use of the court. Documentary exhibits are to be served with the affidavit, subject to impracticality. An exhibit must be authenticated by the officer before whom it is taken. Typically, the document will be stamped with or have the words typed on it which say, changed to suit the circumstances of course :
This is exhibit "A" to the affidavit of John Smith sworn (or affirmed) before me this 1st day of January, 1999.
Underneath this information, the oath-taker will sign his or her name and indicate the official capacity qualifying their reception of the oath, such as:
It will often be of assistance to deponents to attach documents produced by others or themselves as exhibits to their affidavits. Typical exhibits in a family case might include pay-stubs, tax returns, prior orders or agreements, letters, or other materials to which the affiant will refer. The exhibits are evidence in the same way as the statements in the affidavit are evidence, and the same rules apply.
A document which is hearsay therefore, like the report of an expert who gives his opinion, is not an appropriate exhibit for two reasons, the first being that the document is hearsay to the deponent, but more importantly because the maker of the document is not compellable to be cross-examined on it. The evidence of experts should be in affidavit form, so that there is no question that the expert is aware of the use of his or her opinion and can be cross-examined upon it.
The affidavit in support of an interim motion should contain sufficient general information to enable the court, without having to review the pleadings, to have an idea of who these people are, and what their case is about. Additionally, depending on the case, the material should contain basic information about each issue. Some ideas are indicated below.
(a) Jurisdiction
Without jurisdiction, the court cannot make an order. The issue will probably not arise in most cases, except by inadvertence. The moving party will want to ensure that his or her affidavit shows:
i) that the parties were married, or if living "common law" that they have satisfied the statutory requirements under The Family Maintenance Act;
ii) that the children are children of the union, or that there is a fact situation amounting to a prima facie case of "in loco parentis" or "standing in the place of a parent";
iii) that if the father of the child is not married to the mother, provide sufficient information to establish parentage, such as admissions against interest, or other ways to come squarely within the presumptions articulated in The Family Maintenance Act, to establish the jurisdiction to make a custody, access or support order.
(b) Custody and Access
The importance of the decisions on interim custody and access motions cannot be over-estimated. Because of the inherent delay between separation of the parties and the final trial of all issues, the award on the interim motion will be of critical importance, for at least two reasons. Firstly, courts are naturally reluctant to move children unnecessarily; and secondly, how the children fare during the interim period, itself, can become a major issue.
The material should establish sufficient information so that the court may make its decision on "what is in the best interests of the children?" This will often involve some or all of the following high points:
i) a biographical sketch of the children: who they are, the roles played by the parents, the facts of their current functioning, important issues of their physical and emotional health, school performance, relationships, and special needs;
ii) the history of child-care arrangements; the ability of the parents to co-operate, or not, in relation to access. Address these issues, if appropriate. Is there a case to be made out for specification of access, or a need for supervision? Has there been any history of child abuse?
iii) your client's "plan" for the children's future care: the resources and amenities available to meet the children's short-term and long-term arrangements.
(c) Support
Since the concept of support is rooted in an appreciation of the relative "means and needs" of each of the parties, and the needs of the children, the court must have basic information in the case of spousal support and sufficient information to meet the standard of the Child Support Guidelines, where child support issues are before it:
i) a complete and credible financial statement is mandatory. It will demonstrate the moving party's means and needs. Form 70D is a convenient starting point since one had to be completed for the petition or answer. It can be attached as an exhibit or incorporated by reference to the petition or answer, but it will not necessarily be the same. A separate form strictly for children's expenses might be considered as well. The budget should be carefully completed and attached as an exhibit. Where useful, the budget, or other financial information provided, should be explained in the body of the affidavit;
ii) also mandatory is sufficient and reliable information about the respondent's income. This evidence may come in the form of pay-stubs, income tax returns, or other financial documents attached as exhibits. Admissions by the opposing party in the past concerning income or assets are also useful and, of course, are admissible. Because the responding party is not required to respond to a motion, there is an onus on the moving party to make out a prima facie case on the issue of ability to pay, the respondents means;
iii) if financial information about the payor spouse is not readily available, consider a preliminary motion for financial disclosure or a cross-examination under the Rules, before proceeding with a motion for interim support; consider an examination of a witness, say the respondent's employer or accountant, pursuant to Rule 39.03(1). Another approach might be to establish "lifestyle" evidence, showing the standard of living that the parties enjoyed during cohabitation, so that reasonable inferences can be drawn from the payor's financial history and therefore ability to pay;
iv) in the case of a dependent spouse, some evidence should be led to show the relationship, or nexus, of dependency to the marriage, to make out a prima facie case of entitlement. Also, the deponent's efforts or plans to become financially independent should be addressed.
(d) Sole Occupancy; Postponement of Sale
The eviction or exclusion of one spouse from the marital home is an extraordinary remedy. The court, in dealing with such interim applications under s.13(1) (occupancy) or s.13(2) (postponement of sale) of The Family Maintenance Act, will generally base its decision on determining "the balance of convenience". Occasionally, the result of a sole occupancy application will be that neither is evicted. Where there are children involved, the decision usually "follows custody", but that is by no means an inflexible rule. The following should be detailed:
i) establish the facts of ownership and current occupancy;
ii) establish the "balance of convenience" by evidence showing the inability of the parties to remain under the same roof pending the trial, the availability and cost of alternate accommodations, the necessity of the home for the children's needs (continuity, proximity to schools, friends, familiar baby-sitters).
(e) Restraining and Preservation Orders
Injunctive relief will be useful in protecting life, limb and property, pending the outcome of proceedings. The provisions of the Domestic Violence and Stalking Prevention Act are now the source of jurisdiction for what used to be called "prohibition" orders.
While such "restraining" orders will usually be ground in that Act, the court still retains its power to grant injunctive relief in appropriate cases.
Preservation of property may be a necessary incident of the court's power to control its own process, or otherwise founded in s.21(1) of The Family Property Act.
In order to justify these kinds of relief, the court will be looking for a past history showing violence, a disregard of the law, or facts which raise the probability of such harm in the future. This evidence will include:
i) where a restraining order is required to protect against violence, there should be some specificity to the historical information which is being provided. A blanket statement of "abuse" or fearfulness, without a foundation upon which such allegations might reasonably be based, will not be sufficient for a prohibition order. Events which are capable of being corroborated are best, such as occasions when the police were called or when a neighbour witnessed the event or its immediate aftermath;
ii) where the issue is preservation of property, a history of dissipation, or financial mismanagement such that the assets (necessary to fund the equalization under The Marital Property Act, for example) are in danger of disappearing, should be shown;
iii) non-removal of a child from the jurisdiction will be considered where there is a risk that one party will abscond with the child. This is a particularly serious matter, since a "status quo" could be established in this way. Where there is such a risk, clear and compelling evidence should be mustered.
(f) Financial Disclosure
Efforts to obtain full and complete financial disclosure are important not only to establish the facts necessary for the interim support motions, but also for the final hearing.
The Family Maintenance Act, in s.8(1) makes provision for the right to obtain "information and accountings respecting the financial affairs of the marriage and the domestic establishment relating thereto". This may include, without limiting the demand:
(i) tax returns;
(ii) itemized statements of gross and net earnings, showing all deductions; and
(iii) itemized statements of assets and liabilities.
Failure to comply with this right may lead the court to impose a fine on the defaulting party of up to $5,000.00 payable to the other spouse. This remedy is in addition to any other sanctions (s. 8(2)). The penalty is rarely invoked, it appears, and only where there had been an order for financial disclosure which was disobeyed.
In addition the Child Support Guidelines provide for specific forms of disclosure and the means to obtain it, including fines penalties and other sanctions.
Sections 18(3) and (4) of The Family Property Act require sworn financial statements of the applicant and respondent where there are claims under that Act.
Rules 70.05 and 70.11(3) require the court form (Form 70D) to be completed and sworn where there are issues of property or support raised by the pleadings.
The request for financial disclosure should be clear
and detailed. Correspondingly, any order drawn for financial disclosure should
be specific and unambiguous. The failure to provide financial disclosure must
be clearly and accurately documented, if there will be an attempt to enforce
the order.
| Expungement or Striking Affidavits | |
Because the court does not hear witnesses generally in interim motions, it is important for the parties to present persuasive and credible written materials before the court. Apart from references to cross-examination transcripts, the affidavit is the only evidence the court will be able to consider.
The quality of the affidavits used on the motion varies widely. Many find it easy to fall into the temptations of sloppy drafting, using an argumentative style, and including extensively irrelevant and repetitious material in affidavits. It is difficult to resist joining the fight the other side seems to always start. Bad drafting begets bad drafting.
The admission of improper evidence can make a critical difference in a case, so counsel must be vigilant and carefully weigh the potentially damaging consequences of not objecting to it. The remedy is a Motion to Strike or a Motion to Expunge as it is called in the Family Rules.
Motions to Expunge or Strike Out are an important tactical consideration in every motion. The attack can be against an entire document, or just parts of it - from paragraphs to parts of sentences or single words.
Counsel has to weigh the cost of the process of an Expungement Motion, the delay it will entail, and the potential evil of allowing the bad evidence to stand.
Some lawyers are reputed to challenge almost every affidavit in every case, whereas others almost never use the process. Like anything else, one looks for a tolerable medium to meet the client's practical needs.
A Motion to Strike out a pleading, or an affidavit, or parts of them is an Interim Motion. If the questioned material offends the rules of evidence and practice, then the court has the power to expunge or remove those inadmissible parts.
Typically, in the past, and as it continues to be in the Civil Division, the Motion to Expunge was decided by the judge who would then deal with the substantive motion. The difficulties are obvious. If the offensive material is ruled inadmissible, the judge then has the conundrum of having to consciously attempt to ignore it.
Additionally, these motions to a judge can be as time consuming and expensive as the substantive motion, of which it is but a constituent part, and take as long to get heard. Fortunately, as a defence against the worst of this kind of material ruling the field, the court has developed a stream-lined means of having a master of the court, in effect, do an editing job.
4. What to Strike Out - Examples
Hearsay
While the rules allow for the use of hearsay evidence on motions, the right is not an unfettered one. This departure from the ordinary rules of evidence is allowed only where the source is appropriately identified, and the deponent expresses belief in the statement.
The hearsay is put before the court in a formal way such as:
There is no magic in this formulation, but it does work. The following versions of this same fact would be incorrect and liable to being struck out or expunged:
Scandalous and Vexatious Material
Affidavits in family proceedings, like other proceedings, must not contain "scandalous", "vexatious", or irrelevant material.
The term "scandalous", in the context of affidavits or other evidence, refers to material that is offensive, an unnecessary statement which bears cruelly upon a person's character, and which is not necessary or relevant to the cause. "Vexatious" material might consist of allegations or accusations intended more to bother the other party than to pursue legitimate aspects of the litigation. Because such material is offensive, but also tends to delay or embarrass the fair hearing of the cause, it is liable to be expunged.
No Argument
Rule 70.35(1) is an injunction against the use of "argument" in the affidavit material. The affidavit should be confined facts. It may occasionally be difficult to tell the difference between a factual statement and an opinion. An argument is also not allowed because it is not evidence. The facts themselves should be persuasive without counsel having to point it out.. Argument should be saved for the Motions Brief or the courtroom.
5. Specific Rules and Statutory Provisions
The Queen's Bench Rules
Format
4.07(1) An affidavit used in a proceeding shall:
(a) be in form 4D;
(b) be expressed in the first person;
(c) state the full name of the deponent and, if the deponent is a party or a lawyer, officer, director, member or employee of a party, shall state that fact;
(d) be divided into paragraphs, numbered consecutively, with each paragraph being confined as far as possible to a particular statement of fact; and
(e) be signed by the deponent and sworn or affirmed before a person authorized to administer oaths or affirmations.
Contents
4.07(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.
Striking out a pleading or other document
25.11 The court may on motion strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious;
(c) is an abuse of the process of the court; or
(d) does not disclose a reasonable cause of action or defence.
Contents - hearsay on motions
39.01(4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are exhibited in the affidavit.
One affidavit by party
70.32.1(4) A party to a motion or application shall be entitled to file one affidavit of the party in support of or in opposition to the motion or application.
Affidavit responding to new matters
70.32.1(5) In addition, the moving party shall be entitled to file a second affidavit of the party to respond to new matters contained in the affidavit of the responding party.
Master may expunge affidavits
70.32.2(1) A master may on motion expunge all or part of an affidavit to be used on a motion or application in a family proceeding, on the ground that the affidavit or part is scandalous, frivolous, vexatious, irrelevant, repetitive or otherwise not in compliance with the rules.
Interlocutory proceedings
70.35(1) All interlocutory proceedings shall be commenced by notice of motion supported by affidavit which shall clearly and concisely set forth the fact upon which the moving party relies, and the affidavit shall not contain argument.
The Divorce Act
No evidence of conduct
15(6) In making an order under this section, the court shall not take into
consideration any misconduct of a spouse in relation to the marriage.
16(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
The Family Maintenance Act
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.
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.
6. How to Strike Out - Before the Master
The Motion to Expunge is a special creature of Family Law, probably idiosyncratic to Manitoba. The content and suitability of the opposing party's affidavits can be examined in a special form of motion, prior to the hearing of the substantive motion, before a master.
While it is still possible to bring a motion to expunge before a judge at first instance, that practice is frowned upon in favour of the statutory regime set out in Rule 70.32.2 giving that jurisdiction to the masters of the court. Strict compliance with the rules, however, is demanded, as the master does not have the discretionary powers as do the judges of the court.
7. Rules and Practice on the Motion to Expunge
Time Limits and Set Down
The Motion to Expunge must be brought within 4 days of service, unless opposing counsel will consent to an extension of time, and the Response must be filed within 3 days of the motion being served.
Usually counsel adapt the Notice of Motion form to not only spell out the parts which they would like struck out, but also to include the reasons or argument in support of the claim. The response is a similarly adapted form of brief,
The Motion to Expunge is set down for a Tuesday morning at 8:30 a.m. and of course must be timed so as to give counsel opposite time to reply. Counsel must file an affidavit of service to ensure that the matter is "heard".
No oral argument
The hearing, in fact, takes place in the absence of counsel as oral argument is not permitted. The master may request oral argument, although that is something that is rarely done.
Disposition and Costs
The master's disposition of the motion is usually known by the Thursday of the same week and is disclosed by means of the distribution of the Disposition Sheet by fax to counsel. Costs usually follow the event, that is, depending on success. Counsel are not required to take out an Order as the court will act on the disposition sheet, literally blacking out the offensive material with a felt marker. In some cases the party will have to resubmit the affidavit in edited form.
Appeals
An appeal is available to a judge of the court, but these are generally discouraged.
| Ex Parte Motions - The Emergency Case | |
1. When to Use the "Ex Parte" Motion
Ex parte interim applications, or "motions without notice", as they are currently called, are allowed by the Rules. Because of the extraordinary nature of this relief, strict rules are in force, and the relief is not granted lightly.
While the use of the motion without notice is to be discouraged, there will be situations of real or apprehended emergency where it may be necessary. Situations, which may call for such an extreme remedy will contain some of the following ingredients:
(i) There is a real likelihood the respondent upon learning of the applicant's intention to separate will act in an extreme and prejudicial manner; this might involve abducting a child, or becoming physically violent and dangerous to the spouse or child; this might also include the destruction or secretion of assets;
(ii) One spouse is about to deal irrevocably with an asset, putting it. or the proceeds of disposition, beyond the reach of the applicant, or the court;
(iii) It is necessary to preserve evidence, such as the contents of a safety deposit box, which may be in doubt or incapable of future proof if the respondent has unsupervised access to it.
2. The "Short Leave" Alternative
When considering the options, and particularly, whether or not to bring a motion without notice, consideration should be given to the possibility of proceeding in some other fashion.
One major option is to attempt to proceed on "short leave", that is upon less notice to the other side than prescribed by the Rules. Rule 3.02 (1) provides that the court may abridge or enlarge any time prescribed by the Rules. The court will be more comfortable hearing a matter on "short leave", rather than none at all, for the respondent at least will have had an opportunity to be heard. This may be feasible where the petitioner can be safely hidden, for example, for a day or two while service is perfected and the matter brought quickly to court.
3. Duties on the Motion Without Notice
Rule 39.01 (6) calls for an impartial representation of the material facts by the moving party on an application without notice, and "failure to do so is in itself sufficient ground for setting aside any order" so obtained. This is a codification of case-law (Griffin Steel Foundries Ltd. v. C.A.I.M.A.W. (1978) 1 W.W.R. 35 (Man. C.A.)).
Where the respondent is known to be represented by counsel, proceeding without notice is contrary to professional ethics, and almost unthinkable. If the proceeding is intended to go ahead in any event, without notice to known counsel, at the very least, the existence of opposing counsel must be noted in the material, so the judge can be the one to make the decision.
In a genuine emergency, it may be necessary to attempt to obtain relief outside of normal court hours. The court provides a little known service for such situations. Counsel can contact the court at 981-9030, leaving their name and telephone number.
A designated court official will return the call, obtain particulars, and then relay them to a judge. If the judge determines that the matter requires immediate disposition, arrangements will be made for a hearing, as quickly as possible.
5. Practice on the Motion Without Notice
The motion without notice is brought in the same manner as an ordinary motion, that is, by the filing of a Notice of Motion and supporting affidavit, after the grounding action has been instituted. In practice, all three documents are filed simultaneously. The major distinctions are with respect to content of the affidavit material and, of course, with respect to the lack of service.
The motion should be set down at a time to be pre-arranged with the motions co-ordinator when a judge will be available and the materials prepared. It should not be set down on the regular Tuesday morning docket.
An appointment having been arranged, counsel should attempt to have all documentation ready and filed prior to the time. It will be a very rare case when the court will hear the matter without affidavits and, therefore, considerable preparation, usually done in a very hurry-up fashion, will be required.
The clerk will escort counsel to the judge's private chambers or office. The court is usually not disposed to have the client present in chambers. If counsel insists, or the court otherwise wants the moving party present, the matter will be dealt with in a courtroom. It is often valuable to have the client close at hand, so that (the inevitable) inaccuracies or omissions, can be dealt with.
The material should, however, speak for itself. There is room for some advocacy, and some may be required.
If the judge is disposed to grant the relief you have requested, the order might be signed on the spot. It is prudent to have an order (or several plausible versions) prepared in advance. Your draft order should include provision for the service of documents, and for the matter to be returned to the court for review within the 10 days required by the Rules. Time is usually of the essence in these matters, so it is imperative that the order should be drafted and signed as soon as possible. A polite inquiry, as to where the judge might later be found, therefore, or if the clerk might sign for the judge, might be well advised, so that you can avoid the situation of having an order pronounced but no copy to show to gain enforcement of it.
The Rules and practice clearly set out the need to serve the order quickly on the respondent. All other materials filed on the motion, together with a notice of motion and any affidavit in support to extend the order, must also be served.
It is good practice to obtain a certified copy of the interim order, and make several "true" copies for your client. Instruct the client to act consistently with the nature of the relief obtained, and not to part with the certified copy bearing the court seal, except perhaps to exhibit it to the police. The respondent should be avoided if possible, until there has been a sufficient cool-down period, and your client's safety and the safety of the children have been secured.
6. Responding to Orders Without Notice
The respondent, upon receipt of the ex parte order is often in shock, caught completely unawares. The respondent has a number of legal avenues from which to choose, some more useful than others:
i) a motion to "rescind or vary" the order on the basis of Rule 37.11 (1), or to have it set aside on the basis of a failure to make "fair disclosure" under Rule 39.01 (6);
ii) a motion for relief which will be argued on the basis of the respondent's material, upon the return of the ex parte motion, that is required by the Rules and will be stipulated in the Order; or
iii) an appeal to the Court of Appeal.
From a practical point of view, the respondent will usually be best represented by putting forward his or her case in opposition, by an early motion to vary or upon the review of the Order. Reliance on a technical defense or taking the appeal route is risky and may result in significant delay. This delay may have the effect of allowing the petitioner to acquire a "status quo" based on the effect of the first order which will be difficult to overcome.
7. Rules Applicable to Applications Without Notice
37.06(2) Where the nature of the motion or the circumstances render service
of the notice of motion impracticable or unnecessary, the court may make an
order without notice.
37.06(3) Where the delay necessary to effect service might entail serious
consequences, the court may make an interim order without notice.
37.06(4) Where an order is made without notice to a person or party affected
by the order, the order shall be served forthwith on the person or party unless
the court orders or these rules provide otherwise.
39.01(6) Where a motion or application is made without notice, the moving
party or applicant shall make full and fair disclosure of all material facts,
and failure to do so is in itself sufficient ground for setting aside any
order obtained on the motion or application.
40.02(1) Where an interlocutory injunction is granted on motion without notice,
it may be made for a period not exceeding 10 days.
40.02(2) Where an interlocutory injunction is granted on a motion without
notice, a motion to extend the injunction may be made only on notice to every
party affected by the injunction, unless the judge is satisfied that because
a party has been evading service or because there are other exceptional circumstances,
the injunction ought to be extended without notice to the party. 40.02(3)
Where an extension is granted on motion without notice, it may be made for
a further period not exceeding 10 days.70.06 Where a judge is satisfied that
relief is urgently required, the judge may permit a proceeding to be commenced
without compliance with Rule 70.05 upon receiving from the party commencing
the proceeding an undertaking to file and serve Form 70D within a reasonable
time.
| Advocacy of Motion | |
1. Preliminary Concerns for Counsel - Adequacy of the Material Adequate?
- Have affidavits of service been obtained, and filed?
- Has the motion's brief been filed?
- If there is an arrears issue, has the Director of Economic Security been
served and what is the department's position?
- If there is a motion for a partition or sale, have all encumbrancers been
served?
- has all of the material been filed, in a timely fashion, so that the judge
will have had an opportunity to read it?
- If relying on a cross-examination, has it been filed, or have you devised
a way to highlight the relevant portions for the judge; one technique is to
file a selection of excerpts, suitably marked.
- If relying on case-law, have these been copied for the other side and the
court, and highlighted? Case-law should be distributed to the other side in
advance, and may also be provided to the court early.
- Is this a case for a more elaborate motions brief? This is a good opportunity
to organize your argument, present complex calculations, tax ramifications,
and statute or case law for the court.
- Is the case actually ready to proceed, or should an adjournment be requested
to file further material, to cross-examine, or to bring a preliminary motion
for financial disclosure?
2. Preliminary Concerns for Counsel - The Oral Argument
Every lawyer will have his or her own courtroom style. The argument of an interim motion, as with all court work, is the exercise of advocacy, the art of persuasion.
Counsel should consider the following qestions and answers, before launching into the heat of argument:
Q: Does the judge have all the material that's been
filed?
A: It is often valuable to ascertain what the judge has in his or her file,
and what has actually been read. Generally, one can assume that the judge
has read all the affidavits which have been filed subsequent to the notice
of motion, but has not read material filed prior, nor any cross-examinations.
Where this is a second or third interim motion on the same file, whether or
not it is the same judge, it is not safe to assume recent familiarity with
the old material unless the judge has been specifically steered to it. Before
launching into a lengthy argument, it might be wise to inquire as to what
the judge has available and had an opportunity to read. It might be prudent
to suggest a short recess for the judge to study any unread material prior
to argument commencing. Sometimes you will sit quietly while the judge reads
the affidavit that inadvertently went missing between your office and the
filing system of the courthouse.
Q: What are the contested issues on the motion, and are there matters which
can now go by consent?
A: Prior to walking into the courtroom, what the judge knows about what is
in issue is only what is stipulated in the notices of motion or the motions
briefs. Good advocacy will involve informing the judge of agreements as soon
as possible, so that everyone can concentrate on the real issues. If this
cannot be done prior to the motion, it will be one of the first things the
judge will want to know. Counsel should confer with each other before they
enter the courtroom.
Q: How much time has been allotted for the motion and how should it be used?
A: The allotted time for the motion should be roughly apportioned in a fair
and reasonable manner. One formula suggests that the time should be allocated
30% for the opening argument, 30% for response, 10% for rebuttal, and 10%
for the judge. Rebuttal, of course, is confined to dealing with matters raised
anew by the respondent's argument, and should not be allowed to degenerate
into a repetition of the opening argument. It is reasonable and permissible
to query the judge at the outset, particularly if there is reason to believe
that one counsel will fail to observe reasonable time constraints or limitations
without external control.
Having established what the contested issues are, what the judge has read, and how much time is left, the moving party's argument should not be a mere recitation of the facts in the material. Counsel should attempt to make his or her best points in an orderly and precise way, assuming that the judge has digested the basic facts. Some judges will sit stone-faced while you and your learned friend make your arguments, while others will jump into the fray and let you know quite quickly what issues are of concern to the court. Counsel should be willing and eager to meet those challenges. A good advocate will want to attract and maintain the judge's attention.
Argument should be confined to evidence that is, in fact, before the court. It is objectionable for counsel to "lead evidence" through his or her oral argument, nor should counsel be offering personal opinions. Counsel "submits", but does not "suggest". No one is interested in what counsel "thinks" or "believes".
In oral argument, it is permissible for counsel to refer the court to material for the purposes of argument such as case-law, or calculations designed to illustrate the impact of income tax on a support award, for example. The underlying facts to which the material offered in argument is intended to apply, however, must have a sound basis in the evidence properly before the court. Courtesy dictates that these external sources have been provided to your learned friend in advance.
After the judge has rendered a decision counsel, who will have been taking notes assiduously, might wish to ask for a moment to ensure that all the issues have been resolved, and that what the judge has done is clear. A checklist prepared in advance might be helpful, or go back to the Notices of Motion and check off that each issue has been addressed.
If there is any likelihood of an appeal being considered, or if difficulty is anticipated in obtaining the other side's approval as to the form of the order, ask the judge for written reasons. The court's tape-recording monitoring system will have been activated when the judge is ready to give a decision and most will rely on the edited version of the remarks made in court to stand as reasons for decision. The judge will usually also make handwritten notes.
The court clerk will record by hand the clerk's version of the disposition which will be put on the court file. The disposition sheet is the first line of inquiry where there is a dispute as to the pronouncements. If necessary, a transcript can be ordered by a written request to Transcription Services. The judge will edit the transcript for grammar and continuity and authenticate it.
If this is a case which will be appealed, counsel should
consider asking the motions judge to grant a "stay" of the order.
In a custody case, where custody has been changed, for example, a stay might
be appropriate, and the Court of Appeal will often insist that you return
to the Queen's Bench judge to apply for a stay, before that Court will consider
it (Powell v. Guttman and Nassar (1977) 6 W.W.R. 106 (Man. C.A.).
