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The Fishman Beley Family Law Primer - Family Law 101
Practice and Procedure
HOW PROCEEDINGS ARE STARTED
The Pleadings
In family law cases, the parties start proceedings by the filing and service of “pleadings”, usually a form of Petition or Petition for Divorce. If the matter will be contested, the respondent will file an Answer or Answer and Petition if there is a counter-claim for divorce. Again, where support or property issues are engaged, the respondent will complete a Form 70D.
The pleadings form the Record which will be the framework within which the court will adjudicate final relief at a trial. These forms can be found in The Court of King's Bench Rules (KBR).
The Pleadings define the issues for the court and give it jurisdiction to grant relief or make orders. Unless relief is specifically requested, the court will not be able to grant it. If a new cause of action or requirement for relief is later discovered, the party will have to seek an amendment.
Demand for Financial Information
The Petition must be served with a Demand for Financial Information – Form 70D1. This form will help to ensure the early exchange of relevant financial information can be used to bring a motion for disclosure which may lead to costs and fines of up to $5,000 for disobedience.
FAMILY LAW PRACTICE IN THE MODERN ERA - CULTURE SHIFT
Dramatic changes in the law and practice of Family Law in Manitoba have been made in the last few years. The practice of Family Law has been revamped almost from the ground up effective February 1, 2019. In addition, The Family Maintenance Act (now The Family Law Act) and The Arbitration Act have been significantly amended and The Child Support Service Act has been enacted in Manitoba, while the federal government has made sweeping changes in children's law.
The Court of King’s Bench Rules and in particular the provisions of Rule 70 govern the practice of Family Law matters in Manitoba. These rules have been significantly revamped effective as of February 1, 2019, with objectives of streamlining the practice of family law, focussing on settlement and the byword is “proportionality”.
Greater emphasis is now placed on resolution and the predictability of the court process. While there is no impetrative as to when proceedings are commenced, or the courts engaged, once the parties are ready to go, the heavily revamped system is intended to have their litigation resolved in a trial within 12-15 months of their first case conference.
While in the past there was a separation between the functions performed by judges in the course of a case (interim motions, case conferences, and trials were generally handled by different judges), the new system leans towards a one-judge model. The prior distinction that the Case Conference Judge was disqualified from hearing an interim motion or a trial has been eliminated.
Practice Directions
The changes in the Rules and guidance on their effective use are updated periodically and unpredictably with Notices and Practice Directions, which can be found here.
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February 13, 2020 - New Family Division Case Flow Model Updates and Clarifications
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February 3, 2020 - New Model for Scheduling and Case Flow Management Practice before the Master
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August 6, 2019 - The One Judge Model Effective September 3, 2019 (Civil Actions)
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June 28, 2019 - Best Practices in Transitional Cases Under the New Family Division Case Flow Model
THE FIVE MEANINGFUL EVENTS
The progress of a Family Law case through the court system is now seen in terms of 5 meaningful events.
WHAT IS TRIAGE?
Triage is the new first step in the litigation process and, as its title implies, this is the stage at which the case is given its initial evaluation by the court. At this gateway process, the Triage Judge will attempt to settle what can be settled, create a roadmap for the resolution or litigation to follow, and determine if a Prioritized Hearing should take place before the first Case Conference.
The first Case Conference will be scheduled within 30 days of Triage or any prioritized hearing.
Triage meetings will take place on Mondays. The parties and their lawyers, if they are represented, will be required to attend at the Triage Conference which will be presided by the duty judge of the week and will usually last for a half-day.
Before Triage is scheduled, the parties will need to certify that they are ready to engage the system, that is, that they have completed disclosure and other prerequisites.
SCREENING FOR TRIAGE - PREREQUISITES
To get to the Triage stage, the parties will need to satisfy the court that the case is ready for its attention. That the prerequisites have been completed will need to be certified by the lawyers. or the self-represented parties, in a form that is not meant for modification. The Prerequisite Form 70.D3 can be found here.
While prerequisites will vary depending on the issues, they will typically require that complete financial disclosure has been undertaken and on the road to completion, that the parties have met in an attempt to settle matters, and that certain other preliminary processes have been undertaken.
The Triage Coordinator, who presides over a list on Tuesday mornings, will examine the Certificates of Prerequisite Completion and determine if the matter is ready. Failure to complete the prerequisites will bar the parties from Triage.
The prerequisites that must be certified vary depending on the case, but in every case the court have to be satisfied that the parties are ready, have completed or undertaken various pre-trial steps such as exchanging Affidavits of Documents, financial disclosure and discoveries so that they are well on the road to being ready for their ultimate trial. In addition, the parties will have to have had at least one settlement meeting.
Prerequisites which cannot be completed or at which one of the parties is stalling can be addressed by a master of the court at their daily sittings.
In addition to the Prerequisite Form, each of the parties will file a Triage Brief, setting out the issues in the case, supporting documents and if there is an Interim Motion that either wants dealt with, the Motions and Affidavits in support. These Briefs should be comprehensive so that the Triage Judge can effectively grasp and lead a settlement oriented discussion of all issues in the case as if at trial. The parties and counsel are admonished to come to Triage ready to deal with the outstanding issues and work towards quick resolution.
THE TRIAGE HEARING
Triage Hearings will take place on Tuesdays. The Triage Judge is charged with the task of identifying the issues, narrowing them and attempting settlement, setting “prioritized matters” for qualified hearings before the first case conference, within 30 days, and setting the first case conference. The parties are required to attend and are expected to be informed and to actively participate.
The Triage Judge has broad powers including those of a Case Conference Judge, to hear motions and to hear appeals from the Master. The Triage Judge has the power to make reviewable interim orders, give directions or set the matter down for an Interim Motion or send it to Case Conference.
The availability of Interim Motions, previously the mainstay of family cases, has been essentially reduced and almost done away with. Given that an interim motion will, except in rare cases, be heard after the Triage meeting and will likely be heard by the same judge as the Triage Judge, most of the issues will likely have been effectively canvassed at the Triage Hearing.
If the case is not resolved at the Triage Hearing, the matter will quickly (within 30 days) go to case conference, where the parties will have to satisfy the court that the case is ready for resolution. If the matter is not settled at case conference, the Case Conference Judge will set a trial date, approximately 12-15 months from then, and perhaps further case conferences.
Trials once scheduled will not be adjourned (except in extremely rare circumstances). To adjourn a trial, an application will need to be made to the Chief Justice of the court. All indications are that this permission will be rarely given.
The judge who presides at the Triage conference may also be the judge at the Case Conference and trial.
PRIORITIZED HEARING
If a Triage Judge has determined, for reasons of practicality or proportionality, that a prioritized hearing is necessary, then the date for such an interim motion will be set within 30 days of the Triage Conference and before the first Case Conference. A first Case Conference date will be set concurrently, to occur 30 days after the prioritized hearing.
A prioritized hearing will be used for:
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Applications to vary or set aside Protection Orders
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To confirm a Master’s report on dates of cohabitation/separation for the purposes of the accounting
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A Summary Judgment motion as directed by a Triage Judge
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Matters that should not wait for the first case conference
Orders of the Triage Judge and orders made by a Prioritized Hearing Judge may be reviewable by the Case Conference Judge if indicated, although Final Orders confirming dates of separation/cohabitation or orders to set aside or vary Protection Orders will not be reviewed by either the Case Conference Judge or Trial Judge.
INTERIM MOTIONS
Because trials in the past often took years to be heard, interim motions were available to prevent hardship, maintain order between the parties, to secure rights and obligations temporarily - such as interim custody, access or support – or to move the case along.
The new case flow model discussed below has removed most of the circumstances in which Interim Motions are required or will be heard.
Once the Petition for Divorce or Petition for separation is filed, the court has jurisdiction to grant an interim order. An interim motion, unless the necessity has been dispensed with by the court, will not be heard until after the first Triage meeting.
Interim motions are almost always determined on affidavit evidence, that is, the sworn written statements of the parties and their witnesses. Occasionally, there will be cross-examinations taken on the affidavits, or examinations of third parties, but these are usually done in lawyers' offices and the judge will only be referred to the printed transcript. Some matters might now be determined by the Case Conference Judge on oral submissions.
EMERGENT MOTIONS
Where there are situations that can be classified as “Emergent” the court may entertain a motion before Triage provided it meets the criteria set out in in the rules as follows:
Exception — emergent situations
70.24(12) A judge may hear a motion or application prior to the triage conference for a family proceeding if the motion or application relates to a situation involving one of the following:
a) an immediate or imminent risk of harm to a party or a child of a party;
b) the removal of a child from Manitoba;
c) the loss or destruction of property.
Significant controversy has arisen with respect to the difference between an “emergent” matter and one that is “urgent”. The Practice Direction of February 13, 2020 addresses the matter as follows:
For example, the situation may be considered an emergency if
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There is a risk of violence or immediate harm to one of the parties or the child, OR
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The child is on the way to the airport and may be taken out of the province, OR
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Circumstances exist that would give rise to an order under s. 21 of The Family Property Act
The Practice Direction qualifies this by stating that “… emergent relief may be justified in situations where one parent has abruptly, unilaterally and without explanation or apparent justification, completely cut or has “virtually eliminated” all access and/or contact between the other parent and a child or children.” This is not intended to open up the category of what is or is not “emergent”, but to demonstrate the kind of situation that might be seen as “constructive” harm.
If the court is not satisfied that the matter “emergent”, it will not be heard before Triage. If the matter is only “urgent”, the parties are admonished to complete the prerequisites quickly and move on to Triage.
CASE CONFERENCES
The Case Conference Judges’ powers have been expanded dramatically and other changes have been made to the process. The same Case Conference Judge will preside at all subsequent case conferences and will hear all interim motions in the proceeding.
The role of the Case Conference Judge is to manage the pre-trial conduct of a family proceeding in a manner that will achieve proportionality. A trial date must be set at the first Case Conference and no trial will be adjourned without the permission of the Chief Justice of the Court. The Case Conference Judge may also preside at the trial. If the Case Conference Judge had heard a motion for Summary Judgment, then that judge must preside at the trial.
The Case Conference Judge may, on motion by a party or on their own motion, without materials being filed, make any order or give any direction that the judge considers necessary or advisable to facilitate the just, most expeditious and least expensive determination or disposition of a family proceeding. These may include procedural and substantive matters and may be made upon oral submissions.
POWERS OF THE CASE CONFERENCE JUDGE
Examples of the orders and directions available to a Case Conference Judge are listed at QBR 70.24(34) as follows:
Substantive Matters
1) Make an order against a party on any issue in the family proceeding, with or without notice to the non-attending party, if the party fails to attend the case conference without reasonable excuse.
2) Order a party to pay child support on an interim basis, that is reviewable on motion to the case conference judge, taking into account the current annual income of the party with the obligation to pay child support and the applicable table of the guidelines, provided the amount of child support ordered does not exceed the applicable table amount for an annual income of $150,000.
3) Impute income to a party on an interim basis, that is reviewable on motion to the case conference judge, for the purposes of making an order under paragraph 2 if the party has failed to disclose financial information when under an obligation to do so.
4) Order that the enforcement of support or arrears be suspended in accordance with section 61.2 of The Family Law Act.
5) Vary a protection order or prevention order under The Domestic Violence and Stalking Act, with or without conditions, to permit a party to attend a proceeding and communicate with another party at the proceeding.
6) Vary an order under clause 10(1)(j) of The Family Law Act, with or without conditions, to permit a party to attend a proceeding and communicate with another party at the proceeding.
7) Order that child support be recalculated in accordance with section 24.3 of the guidelines.
Procedural Matters
8) Adjourn a case conference or any hearing in the proceeding, other than the trial or final hearing date.
9) Direct the parties to attend a further case conference.
10) Direct a party to bring a motion for summary judgment.
11) Order that a pleading be amended or specifying the time when pleadings are closed under the rules.
12) Direct a party who intends to file a motion to do so within a specified time.
13) Order that procedures for discovery of documents and examination of parties be dispensed with or limited.
14) Direct, in accordance with rule 70.30, that at the trial the evidence be adduced, in whole or in part, by affidavit.
15) Direct that a case conference, or a portion of a case conference, be recorded.
16) If a proceeding to strike or expunge all or part of a pleading or document has been or will be commenced, provide directions respecting the proceeding, including that the proceeding be limited or dismissed.
17) Order that one or more matters in issue be severed and proceed to a final hearing.
18) Order that two or more proceedings be heard at the same time or consolidated in accordance with Rule 6.
19) Direct that a party file and serve written material and specify the time for doing so.
20) Order that within specified time periods, specified actions in the proceeding be taken, including
a) filing trial records, agreed statements of facts, agreed books of documents and briefs of the law; and
b) exchanging documents, including exchanging
i) witness lists,
ii) experts' reports, and
iii) resumes of experts.
21) Give directions as to the preparation and entry of an order.
TRIALS AND TRIAL READINESS
There will be at least one Case Conference as the parties near trial so that the court will be able to ensure the matter is ready for trial. Each party in a family proceeding must file a Trial Readiness Certificate (see sample form here) no later than 45 days before the scheduled trial or final hearing date. Failure to file the certificate may find the parties before the Chief Justice of the Court on the issue of costs.
EXAMINATIONS FOR DISCOVERY
An examination for discovery is one of the more important tools in the litigator's arsenal. It is an opportunity to ask the other side questions and receive answers under oath and to require the production of relevant documents. Discoveries usually take place in a lawyer's boardroom and are attended by the parties and their counsel. A court reporter transcribes the proceedings verbatim and produces a transcript which can be used at the trial.
The purposes of Discovery are to help each side determine the case that has to be met at trial. It is an opportunity to bind the opposing party to their version of the facts and to elicit agreement on those facts which are not in dispute, eliminating the tedious need to prove various elements of the case. The transcript is used to "read in" questions and answers as part of one's case at trial, or to cross-examine at trial where an inconsistent version of the facts is being given.
Discovery is usually preceded by Discovery of Documents.
CROSS EXAMINATIONS ON AFFIDAVITS
Cross-examinations on affidavits are similar to Examinations for Discovery, but there are critical differences. Cross-examinations are used in the course of interim motions where the parties will file affidavits in support of the motion. Cross-examinations on affidavits are a means of providing the court with evidence that rounds out, contradicts or otherwise challenges the affidavit evidence.
The court rules are rather strict with respect to cross-examinations on affidavits as these are usually perceived to be of little use and/or as tactical, rather than effective. If a cross-examination is undertaken, the examining party must have the transcript produced, provided to the party opposite and filed in court at his or her own up-front cost.
In theory, the entire cross-examination transcript is in evidence but, in practice, the judges don't read the entire volume, only those questions and answers to which they are specifically referred.
DISCOVERY OF DOCUMENTS
The theory of modern litigation is that each party should know what the other side’s case is about and to that end each is entitled to know and inspect each of the documents that the other intends to rely upon at trial.
Each party can demand or be required to produce an Affidavit of Documents.
In compliance with the demand, each side has the obligation to inform the other of the documents in his or her possession which are relevant to the issues before the court, and this will include all relevant documents, not only those helpful to the side's case.
In particular, if a party plans to rely on a document at trial, it must be listed in their Affidavit of Documents. The documents listed must be available for inspection by the other side on reasonable notice. In addition to the ethical and legal considerations, discovery of an undisclosed document can be fatal to a party’s credibility. Parties to litigation are under the obligation to update their affidavit in the event documents come into possession or control after signing their original affidavit.
A “document” includes any writing, emails, text messages, or other printed document, sound recording, video tape, film, photograph, chart, graph, etc., and includes information recorded or stored by means of any device, such as electronic records or media for example.
Even if a document is claimed to be “privileged”, that is, something which need not be provided to a court or to the other side for legal reasons, its existence must be disclosed. “Privileged” documents can be those generated in contemplation of the litigation, such as correspondence between a lawyer and her client, or which may have resulted from a “without prejudice” encounter such as mediation or another protected source such as reconciliation counseling.
COSTS AND OFFERS TO SETTLE
Costs
"Costs" ordered by a court at the end of a motion or trial are the court's way of rewarding the winner, or of expressing approval or disapproval of one party or the other's conduct of the litigation.
Costs usually "follow the event", that is, that the winner gets his or her costs, although not always. The costs awarded by a court, except in extremely unusual circumstances, do not amount to an indemnity of one's actual legal costs, but are merely a contribution.
When the court makes an order for costs, it is up to the party to collect them. The Maintenance Enforcement Program, which will enforce child and spousal support orders, does not deal with orders for costs.
Tariff of Costs
While costs are always in the discretion of the court, and can be a fixed amount, they are usually awarded in accordance with the Tariff set out in the King's Bench Rules. The tariff breaks down proceedings into classes, (Class 1 to Class 4 depending on the amount of money involved, and the steps in a proceeding. Custody cases are deemed to be Class 3.)
Offers to Settle
The award of costs can be significantly affected by the existence of Offers to Settle. An Offer to Settle, governed by Rule 49 of the QBR, is a formal document, but the court will also consider less formal binding offers. Such documents are often labelled “Without Prejudice Save and Except as to Costs”.
Offers are not disclosed to the court until after the court has rendered its decision. If, at the end of the motion or trial, the court is informed of an Offer that was less favourable to the successful party than its order, that party can be awarded double costs.
