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Manitoba Regulation 553/88
Court of Queen's Bench Rules
This version consolidates the following amendments: 150/89; 25/90; 31/90; 146/90; 31/91; 155/91; 240/91; 12/92; 13/93; 14/94; 67/94; 127/94; 214/94; 98/95; 182/95; 42/96; 184/96; 185/96; 186/96; 201/96; 229/96; 26/97; 187/97; 228/97; 6/98; 160/98; 69/99; 120/99; 158/99; 159/99; 160/99; 66/2000; 50/2001; 32/2002; 121/2002; 151/2002; 204/2002; 205/2002; 43/2003; 167/2003; 104/2004; 106/2004; 120/2004; 188/2004; 207/2004; 11/2005; 12/2005; 48/2005; 92/2005; 93/2005; 120/2006; 199/2006; 67/2007; 76/2007.
PART XVII
PARTICULAR PROCEEDINGS
64 Mortgage Actions
65 Reciprocal Enforcement of United Kingdom Judgments
66 Partition Proceedings
67 Proceedings under The Infants' Estates Act
68 Proceedings for Judicial Review
69 Default Judgment Under The Hague Convention
70 Family Proceedings
71 Assessment of Lawyer's Bill
72 Appointment of Committees Passing of Accounts
73 Payment Into and Out of Court
74 Surrogate Practice Non-Contentious Proceedings
75 Surrogate Practice Contentious Proceedings
76 Small Claims Actions
77 Proceedings Under The Expropriation Act
PART XVIII
COMING INTO FORCE
78 Coming into force
TARIFF "A"
Tariff of Lawyer's Fees
TARIFF "B"
Tariff of Disbursements
PART XVII
PARTICULAR PROCEEDINGS
MORTGAGE ACTIONS
64.01 In this rule, "subsequent encumbrancer" means a person who has a lien, charge or encumbrance on the mortgaged property subsequent to the mortgage in question in the action.
64.02 A mortgagee may, in an action, claim,
(a) foreclosure or a sale of the mortgaged premises;
(b) payment of the mortgage debt by any party personally liable therefor; and
(c) possession of the mortgaged premises.
PERSONS TO BE JOINED
64.03(1) All persons interested in the equity of redemption shall be named as defendants in the action subject to subrule (2).
64.03(2) The plaintiff may commence the action without naming subsequent encumbrancers as defendants where it appears expedient to do so by reason of their number or otherwise, but the plaintiff may make a motion without notice on a reference after judgment to add as defendants all subsequent encumbrancers who were not originally made parties.
64.03(3) Where after judgment it appears that persons are interested in the equity of redemption besides those who are already made parties, such persons may be made parties in the master's office on such terms as may be just.
POWERS OF COURT
64.04(1) The court may, on motion either before or after judgment, direct a sale instead of foreclosure without previously determining the priorities of encumbrancers or giving the usual or any time to redeem.
64.04(2) If the judgment directs a sale on default in payment, then, on default being made and an order for sale being obtained, the property shall be sold, with the approval of the master, and the purchaser shall pay his purchase money into court to the credit of the action.
64.04(3) The purchase money, when so paid, shall be applied and paid out of court in payment of what has been found due to the plaintiff and the other encumbrancers, if any, according to their priorities, together with subsequent interest and subsequent costs.
64.04(4) In a redemption action where the plaintiff is declared foreclosed, directions may be given either by the final order foreclosing the plaintiff, or by subsequent order, that all necessary enquiries be made, accounts taken, and proceedings had for redemption or foreclosure, or redemption or sale, as against any subsequent encumbrancers, or for the adjustment of the relative rights and liabilities of the original defendants as among themselves; and such order shall have the same force and effect as a judgment obtained by the original defendant.
64.04(5) On default in payment being made according to the judgment or report in a foreclosure or redemption action, a final order of foreclosure may be granted, on motion without notice, against the party making a default.
Default in payment - redemption action
64.04(6) In a redemption action, on default in payment being made according to the report, the defendant shall be entitled, on motion without notice, to a final order of foreclosure against the plaintiff, or to an order dismissing the action with costs to be paid by the plaintiff.
64.05(1) In mortgage actions the period allowed for redemption in the first place shall be six months; and, when it becomes necessary to fix a date for redemption after the lapse of the first period, the further time allowed shall be one month.
64.05(2) There shall be one day appointed for redemption by all parties and no appointment of a new day shall be made unless the court so orders for special reasons.
WHERE DEFENDANT DESIRES A SALE
64.06(1) Where a defendant in an action for foreclosure desires a sale, but does not otherwise desire to defend the action, the defendant shall, within the time allowed for filing a statement of defence, file and serve a memorandum, entitled in the action, to the following effect: "I desire a sale of the mortgaged premises instead of foreclosure," and shall pay into court the sum of $250. to meet the expenses of the sale, and thereupon judgment shall be entered for sale.
64.06(2) A person made a party in the master's office and desiring a sale shall, before the master's report is settled, make a similar deposit and obtain an order, which may be issued on requisition, directing sale instead of foreclosure; and thereupon all subsequent proceedings shall be had and taken as if the judgment had been in the first instance for sale.
Plaintiff elects defendant conduct sale
64.06(3) If the plaintiff prefers that the sale be conducted by any defendant desiring the sale, the plaintiff may so elect, and shall thereupon notify the defendant of such election, and the defendant making the deposit shall be entitled to a return thereof (Form 64A).
64.06(4) In other cases the master shall deal with the deposit in making his or her report.
PROCEDURE ON MORTGAGE REFERENCES GENERALLY
64.07(1) Rule 55 (Procedure on a Reference) applies to a reference in an action for foreclosure, sale or redemption, except as provided in this rule.
64.07(2) The reference shall be to a master.
64.07(3) On a reference in an action for foreclosure, sale or redemption, the plaintiff shall file sufficient evidence to enable the master to determine who appears to have a lien, charge or encumbrance on the mortgaged property.
64.07(4) The master shall direct all such persons as appear to have any lien, charge, or encumbrance on the property, subsequent to the plaintiff's mortgage, to be made parties to the action, and to be served with a notice in Form 64B.
Require service of appointment and notice
64.07(5) The master, before proceeding to hear and determine, shall require an appointment (Form 64C) and a notice (Form 64D) to be served at least five days before the hearing on all persons made parties before the judgment appearing to have any lien, charge, or encumbrance on the land, subsequent to the plaintiff's mortgage.
Non-attendance treated as disclaimer
64.07(6) Where a person who has been duly served with a notice under subrule (4), or with an appointment under subrule (5), neglects to attend at the time appointed, the master shall treat such non-attendance as a disclaimer by the person so making default; and any claim of such person shall be thereby foreclosed, unless otherwise ordered on application duly made for that purpose.
Take account of amounts due, assess costs, settle priorities
64.07(7) When all parties have been duly served, the master shall take an account of what is due to the plaintiff, and to the other encumbrancers, if any, for principal money and interest, and assess their costs and settle their priorities, and appoint a time and place, or times and places, for payment according to the practice of the court.
Mortgage account on oath of assignee
64.07(8) On any proceeding for foreclosure by, or for redemption against, an assignee of a mortgagee, the statement of the mortgage account, under the oath of such assignee, shall be sufficient prima facie evidence of the state of such account.
64.07(9) On a reference under a judgment for redemption, the master shall take an account of what is due to the defendant for principal money, interest, and costs, and shall appoint a time and place for payment.
64.07(10) The master shall set out in the report on the reference,
(a) the names of,
(i) all persons who were parties on the reference,
(ii) all subsequent encumbrancers who were served with notice of the reference, and
(iii) all subsequent encumbrancers who failed to attend on the reference and prove their claim;
(b) the amount and priority of the claims of the parties who attended and proved their claims on the reference, and the report shall show those parties as the only encumbrancers of the property; and
(c) the date on which the report was settled.
64.07(11) The report shall be served on all parties who attended on the reference.
WHERE JUDGMENT FOR REDEMPTION OR FORECLOSURE, ETC.
64.08 Where the judgment is for redemption or foreclosure, or redemption or sale, such proceedings shall be thereupon had, and with the same effect, as in an action for foreclosure or sale, and in such case the last encumbrancer shall be treated as the owner of the equity of redemption.
CONVEYANCE BY MORTGAGEE
Conveyance to person matching payment
64.09(1) Subject to the provisions of any statute, on payment of the amount found due, the mortgagee shall, unless the judgment otherwise directs, assign and convey the mortgaged property to the party making the payment, or that party's appointee, free and clear of all encumbrances done by the mortgagee, and shall deliver up all deeds and writings in the mortgagee's custody or power relating thereto.
Order for payment of deficiency
64.09(2) If the purchase money is not sufficient to pay what has been found due to the mortgagee (where the mortgagor or person liable to pay the debt is a defendant and the amount due has been claimed) the mortgagee shall be entitled, on motion without notice, to an order for the payment of the deficiency.
CHANGE IN ACCOUNT
64.10(1) Where the state of account as ascertained by an order or a report is changed before the day appointed for payment, the mortgagee may, before the day appointed, give notice of the change of account to the party by whom the money is payable, with particulars of the change of account and of the sum to be paid.
Final order after change of account
64.10(2) Where notice of change of account has been given, and the sum therein mentioned appears proper to be allowed and paid, a final order may be granted without further notice, or the judge hearing the application for the final order may require notice to be given and appoint a new day.
Application to determine amount after a change
64.10(3) Any party given notice of change of account who is dissatisfied, may apply to have the amount to be paid determined and a new day appointed.
Appointment of new payment day
64.10(4) Where the state of account has been changed before the day appointed for payment and no notice of change of account has been given, and the amount to be paid has been reduced, a new day shall be appointed for payment; but, where the amount payable has been increased, a final order may be granted without further notice and without the appointment of a new day.
Change in account after payment day
64.10(5) Where the state of the account has been changed after the day appointed for payment, it shall not be necessary to appoint a new day unless the judge hearing the application for the final order so directs.
RECIPROCAL ENFORCEMENT OF UNITED KINGDOM JUDGMENTS
65.01 In this Rule,
"Act" means The Canada-United Kingdom Judgments Enforcement Act; (« Loi »)
"Convention" means the convention appearing as a schedule to the Act; (« Convention »)
"judgment" means a judgment to which the Convention applies. (« jugement »)
APPLICATION FOR REGISTRATION OF JUDGMENT
65.02(1) Notice of an application to the court for registration of a judgment granted by a court in the United Kingdom shall be in Form 65A.
65.02(2) The application shall be supported by an affidavit that confirms the statements contained in the notice of application and sets out any additional facts necessary to establish that the applicant is entitled to register and enforce the judgment.
65.02(3) The judgment and the original proof of service of the originating process of the United Kingdom court, or certified copies of them, shall accompany the affidavit as exhibits.
65.02(4) The affidavit may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
65.03 A judgment registered under the Act may be enforced in the same manner as an order of the court.
PARTITION PROCEEDINGS
HOW COMMENCED
66.01(1) A proceeding for partition or sale of land under The Law of Property Act may be commenced by notice of application by any person who is entitled to compel partition.
66.01(2) A proceeding for partition or sale by or on behalf of a minor shall be on notice to the public trustee.
66.01(3) A party who applies for partition or sale of land shall serve a copy of the document by which the proceedings are commenced on every person with a registered interest in the land.
M.R. 12/92; 43/2003
66.02 A judgment for partition or sale shall be in Form 66A.
66.03 All money realized in a partition proceeding from a sale of land shall forthwith be paid into court, and no money shall be distributed or paid out except by order of a judge.
PROCEEDINGS UNDER THE INFANTS' ESTATES ACT
HOW COMMENCED
Application on notice to Public Trustee
67.01 A proceeding under The Infants' Estates Act shall be commenced by notice of application on notice to the Public Trustee.
APPLICATION FOR GUARDIANSHIP OF THE ESTATE OF A MINOR
67.02(1) An application for an order appointing a guardian for the estate of a minor shall be supported by an affidavit in Form 67A.
67.02(2) The court may inquire in a summary way into the value of the minor's property.
67.02(3) A person intending to oppose an application for an order of guardianship may file a caveat against the application, in which case rule 75.02 (Caveats Against Probate) applies with necessary changes.
67.02(4) The bond required to be given by the guardian pursuant to section 6 of The Infants' Estates Act shall be in Form 67B, and any affidavit of justification by sureties shall be in Form 67C.
67.02(5) An order of guardianship shall be in Form 67D.
67.02(6) An order of guardianship may be revoked on application and when the court orders revocation the registrar shall endorse the order of guardianship as follows:
"Revoked by Judge's Order made the day of , 20 ."
APPROVAL OF THE DISPOSITION OF PROPERTY OF A MINOR
Disposition of minor's property
67.03(1) An application for approval of the sale, mortgage, lease or other disposition of property of a minor shall be supported by an affidavit setting out
(a) the nature and amount of all the property to which the minor is entitled;
(b) the nature and value of the property to be disposed of;
(c) the annual income the property yields; and
(d) the facts relied on to establish the need for the proposed disposition.
67.03(2) If a disposition of property is sought to fund an allowance for a special purpose, such as the support or education of the minor, the affidavit shall state.
(a) the amount required;
(b) the facts relied on to establish the need for the allowance; and
(c) the necessity for resorting to the property for the allowance.
CONSENT OF MINOR
67.04(1) The following orders shall not be made unless the minor's consent has been filed, together with a lawyer's affidavit stating the lawyer's belief that the minor understood the consent when the lawyer read and explained it:
(a) an order appointing a guardian of the estate of a minor who is at least 12 years old;
(b) an order approving the sale, mortgage, lease or other disposition of property of a minor who is at least 16 years old.
Judge may dispense with consent
67.04(2) A judge may dispense with the necessity of filing the minor's consent and lawyer's affidavit.
67.04(3) The judge may examine the minor with respect to his or her consent.
67.04(4) Where the minor lives outside Manitoba, the judge may direct an inquiry to be made concerning the minor's consent in such manner as is just.
M.R. 127/94; 120/2004
PROCEEDINGS FOR JUDICIAL REVIEW
68.01 A Judge on application may grant an order of mandamus, prohibition, certiorari or quo warranto.
68.02 The court may require notice to be given to any person not before the court who, in the opinion of the court, may be affected by the order sought.
DEFAULT JUDGMENT UNDER THE HAGUE CONVENTION
DEFAULT JUDGMENT
69.01(1) Where an originating process has been transmitted abroad for the purpose of service under the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and no certificate of service or delivery has been received, notwithstanding the provisions of the first paragraph of Article 15 of such Convention, the court may give judgment if the conditions set out in the second paragraph of Article 15 of the Convention are fulfilled.
69.01(2) Notwithstanding subrule (1), the court may order, in case of urgency, any provisional or protective measures.
Relief against expiration of time for appeal
69.01(3) Where an originating process has been transmitted abroad for the purpose of service under the provisions of such Convention and a judgment has been entered against a defendant who has not defended, if the conditions set out in the first paragraph of Article 16 of the Convention have been fulfilled the court, on motion, may relieve the defendant from the effect of the expiration of the time for appeal from the judgment, but the motion for such relief will not be entertained if it is filed after the expiration of one year following the date of judgment.
69.01(4) Subrule (1) shall not apply to judgments concerning the status or capacity of persons.
TABLE OF CONTENTS
70.01 Definitions
70.02 Application of rules
70.03 Commencement of family proceedings
70.04 Certificate of marriage
70.05 Financial information required with originating process
70.06 Service of petition
70.07 Answer
70.08 Reply to answer
70.09 Provision of financial information and sanctions
70.10 Consolidation of proceedings
70.11 Default in filing answer
70.12 Uncontested petitions
70.13 Uncontested petitions — affidavit evidence
70.14 Uncontested petitions — documents
70.15 Certificate of divorce
70.16 Mediation
70.17 Family evaluator
70.18 Interim proceedings
70.19 Interim relief order made without notice
70.20 Affidavit evidence on motions and applications
70.21 Motions to expunge affidavit material
70.22 Motion briefs
70.23 Application briefs and appeal briefs
70.24 Case management — Winnipeg Centre
70.24.1 Parent information program
70.25 Family Property Act references
70.26 Pre-trial conferences
70.27 Pleadings
70.28 Trial record
70.29 Use at trial of cross-examination on affidavit
70.30 Affidavit evidence at trial
70.31 Orders — general provisions
70.32 Repealed
70.33 Preparing, signing and serving orders
70.34 Changes to orders
70.35 Satisfaction of order
70.36 Appeal
70.37 Variation of final orders
70.38 Provisional order for support variations under the Divorce Act (Canada)
70.39 Provisional order under the Divorce Act (Canada) returned for further evidence
70.40 Provisional order under the Divorce Act (Canada) from other court received for confirmation
70.41 Attendance by telephone or other means
70.42 Interrogatories
70.43 Enforcement proceedings under The Family Maintenance Act
70.44 Notice of change of name
Forms
RULE 70
FAMILY PROCEEDINGS
70.01 In this Rule,
"case conference judge" means the judge assigned to a proceeding for the purpose of case management; (« juge chargé de la conférence de cause »)
"family proceeding" or "proceeding" means a family proceeding within the meaning of section 41 of The Court of Queen's Bench Act; (« instance » ou « instance en matière familiale »)
"guidelines" means the Child Support Guidelines Regulation, Manitoba Regulation 58/98, except that where the application is under the Divorce Act (Canada) and only one of the spouses or former spouses resides in Manitoba, "guidelines" means the Federal Child Support Guidelines, SOR/97-175; (« lignes directrices »)
"hearing date" means the date on which a contested matter, other than a trial, is scheduled to be heard; (« date d'audience »)
"pleadings" means the documents referred to in rule 70.27; (« acte de procédure »)
"recalculated child support order" means a child support order that has been recalculated under section 24.10 of the Child Support Guidelines Regulation, Manitoba Regulation 58/98; (« ordonnance de fixation d'un nouveau montant de pension alimentaire pour enfants »)
"recalculation order" means an order under subsection 24.3(1) of the Child Support Guidelines Regulation, Manitoba Regulation 58/98, that child support be recalculated by the recalculation service at regular intervals; (« ordonnance de fixation d'un nouveau montant »)
"recalculation service" has the same meaning as in section 24.1 of the Child Support Guidelines Regulation, Manitoba Regulation 58/98; (« service chargé de fixer le nouveau montant »)
"standard clause" means wording approved by and available from the court that is required to be used in an order referred to in subrule 70.31(11); (« clause type »)
"support determination officer" means a person appointed under section 24.2 of the Child Support Guidelines Regulation, Manitoba Regulation 58/98; (« agent de détermination de la pension alimentaire »)
"table" means a child support table set out in Schedule I of the Federal Child Support Guidelines, SOR/97-175, which Schedule is adopted in Schedule I of the Child Support Guidelines Regulation, Manitoba Regulation 58/98. (« table »)
70.02 The Rules apply to family proceedings, except where this Rule provides otherwise, expressly or by implication.
COMMENCEMENT OF FAMILY PROCEEDINGS
Divorce under the Divorce Act (Canada)
70.03(1) A family proceeding in which the petitioner claims a divorce under the Divorce Act (Canada), alone or in conjunction with other relief, shall be commenced by filing a petition for divorce in Form 70A.
Relief under The Family Maintenance Act, etc.
70.03(2) A family proceeding in which a divorce is not claimed and in which the petitioner claims relief under
(a) The Family Maintenance Act;
(b) The Family Property Act; or
(c) The Divorce and Matrimonial Causes Act, (1857);
alone or in conjunction with other relief, shall be commenced by filing a petition in Form 70B.
70.03(3) A proceeding in which guardianship of a child is sought shall be commenced by filing a notice of application for guardianship in Form 70F and the title shall show an applicant for guardianship as the guardianship applicant.
Guardianship application with child support application
70.03(4) If guardianship of a child is sought, as well as child support for the child, the application for child support shall be filed in the guardianship proceeding.
Guardianship where child already subject of child protection proceedings
70.03(5) If guardianship is sought of a child who is the subject of an existing child protection proceeding or an existing child protection order
(a) the application for guardianship shall be filed in the child protection proceeding in accordance with subrule (6); and
(b) the title of proceeding shall be amended to name all parties.
When leave required for guardianship application
70.03(6) An application for guardianship under subrule (5) may be filed in the child protection proceeding
(a) without leave of the court at any time before setting a trial date; or
(b) with leave of the court after setting a trial date.
70.03(7) A family proceeding to vary, rescind or suspend a final order shall be commenced by filing, in accordance with rule 70.37,
(a) a notice of motion to vary (Form 70H); or
(b) a notice of application to vary (Form 70G).
70.03(8) A family proceeding, other than a proceeding under subrule (1), (2), (3), (4), (5) or (7), shall be commenced by filing
(a) a notice of application (Form 70E) with an affidavit in support; or
(b) where it is not practical to proceed on affidavit evidence, a statement of claim.
70.03(9) Where a notice of application (Form 70E), a notice of motion to vary (Form 70H), a notice of application to vary (Form 70G) or a notice of application for guardianship (Form 70F) contains an application for child support, the notice shall state whether the claim is for
(a) an amount of support in the applicable table;
(b) an amount for special or extraordinary expenses; or
(c) another amount under the guidelines.
70.04 The certificate of marriage shall be filed at the time a petition for divorce is filed under subrule 70.03(1) or 70.07(2) unless the petitioner or the petitioner's lawyer states in writing
(a) that the certificate is not readily available; and
(b) that he or she undertakes to file the certificate.
FINANCIAL INFORMATION REQUIRED WITH ORIGINATING PROCESS
Where Form 70D (financial statement) required
70.05(1) Subject to subrules (2) to (5), where an issue relating to support or division of property is raised in the originating process, the petitioner shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement) with the originating process.
Where Form 70D not required
70.05(2) Where an application for child support is made in the originating process, the petitioner does not need to file and serve Form 70D (financial statement) if
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the originating process; and
(c) the application is made by a person whose income information is not necessary to determine the amount of the order.
Where only Part 1 of Form 70D required
70.05(3) Where an application for child support is made in the originating process, and
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the originating process; and
(c) the application is made by a person whose income information is necessary to determine the amount of the order;
the petitioner does not need to file and serve Parts 2, 3 and 4 of Form 70D (financial statement) but shall file and serve Part 1.
Where only Parts 3 and 4 of Form 70D required
70.05(4) Where
(a) an issue relating to division of property is raised in the originating process; and
(b) there are no issues raised relating to support;
the petitioner does not need to file and serve Parts 1 and 2 of Form 70D (financial statement) with the originating process but shall file and serve Parts 3 and 4.
Where Federal Child Support Guidelines apply
70.05(5) Where an application is made in the originating process for child support under the Divorce Act (Canada), and
(a) the Federal Child Support Guidelines apply; and
(b) income information of the petitioner is necessary to determine the amount of the order;
the petitioner shall file and serve, in addition to the parts of Form 70D (financial statement) required by this rule,
(c) the documents required under section 21 of the Federal Child Support Guidelines attached as exhibits to the petitioner's affidavit; or
(d) an explanation in the petitioner's affidavit as to why the documents referred to in clause (c) are not attached.
SERVICE OF PETITION
70.06(1) A petition shall be served on the respondent personally or in accordance with subrules 16.03(2) and (3) (acceptance of service by lawyer), unless the court makes an order under rule 16.04 for substituted service or dispensing with service.
Petitioner not to effect personal service
70.06(2) A petition that is served personally shall be served by someone other than the petitioner.
70.06(3) A person who effects personal service of a petition shall
(a) ask the respondent to complete and sign the acknowledgment of service (Form 70C) on the back of, or attached to, the petition; and
(b) either
(i) sign as witness to the respondent's signature, or
(ii) record the fact that the respondent declined to sign the acknowledgment of service,
as the case may be.
70.06(4) An affidavit or certificate of service of a petition shall be in Form 70I, and
(a) where personal service is effected, shall state fully the means of knowledge of the deponent as to the identity of the person served; and
(b) where a signed acknowledgment of service (Form 70C) is obtained from the person served, a copy of the signed acknowledgment of service shall be attached to the affidavit.
Service requirements in particular proceedings
70.06(5) In addition to meeting other requirements in these Rules relating to service of documents, a party who is seeking
(a) a declaratory order that a man is or is not in law the father of a child, shall serve on the Director of Child and Family Services appointed under The Child and Family Services Act a copy of the document by which the relief is sought;
(b) a change in the amount of a support order or relief that may result in cancellation of arrears of support or suspension of enforcement of support, shall serve on the Director of Employment and Income Assistance, appointed under The Employment and Income Assistance Act, a copy of the document by which the relief is sought;
(c) a suspension of enforcement of support or arrears where the responding party resides outside Manitoba, shall serve on the designated officer under Part VI of The Family Maintenance Act a copy of the document by which relief is sought, whether the application is made with or without notice to the responding party;
(d) partition or sale of land under The Law of Property Act, shall, comply with subrule 66.01(3).
ANSWER
70.07(1) In this rule,
"answer" includes an answer and petition for divorce; and (« réponse »)
"respondent" includes a person who files an answer or an answer and petition for divorce. (« intimé »)
70.07(2) A respondent wishing to oppose a petition or seek relief shall file and serve an answer in Form 70J, but if the relief being sought by the respondent includes a divorce, Form 70J shall be titled "answer and petition for divorce".
Time for filing and serving answer
70.07(3) An answer shall be filed and served within the period prescribed under Rule 18 for filing and serving a statement of defence.
Financial information required
70.07(4) Subject to subrules (5) to (8), where an issue related to support or division of property is raised in the originating process or the answer, the respondent shall file and serve Parts 1, 2, 3 and 4 of Form 70D (financial statement)
(a) with the answer; or
(b) if the respondent does not file an answer, within the period prescribed under Rule 18 for filing and serving a statement of defence.
Where Form 70D not required
70.07(5) Where an application for child support is made in the answer, the respondent does not need to file and serve Form 70D (financial statement) if
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the originating process or the answer; and
(c) the income information of the respondent is not necessary to determine the amount of the order.
Where only Part 1 of Form 70D required
70.07(6) Where an application for child support is made in the originating process or the answer, and
(a) the only child support claimed is an amount in the applicable table under the guidelines and all children for whom support is sought are under the age of majority;
(b) there are no other issues of support or property raised in the answer or the originating process; and
(c) the income information of the respondent is necessary to determine the amount of the order;
the respondent does not need to file and serve Part 2, 3 or 4 of Form 70D (financial statement) with the answer but shall file and serve Part 1 with the answer, or, if an answer is not filed, within the period prescribed under Rule 18 for filing and serving a statement of defence.
Where only Parts 3 and 4 of Form 70D required
70.07(7) Where
(a) an issue related to division of property is raised in the originating process or the answer; and
(b) there are no issues raised relating to support;
the respondent does not need to file and serve Part 1 or 2 of Form 70D (financial statement) but shall file and serve Parts 3 and 4 with the answer, or if an answer is not filed, within the period prescribed under Rule 18 for filing and serving a statement of defence.
Where Federal Child Support Guidelines apply
70.07(8) Where an application for child support under the Divorce Act (Canada) is made in the originating process or the answer, and
(a) the Federal Child Support Guidelines apply; and
(b) the income information of the respondent is necessary to determine the amount of the order;
the respondent shall file and serve, in addition to the parts of Form 70D (financial statement) required by subrules (4) to (7),
(c) the documents required under section 21 of the Federal Child Support Guidelines attached as exhibits to the respondent's affidavit; or
(d) an explanation in the respondent's affidavit as to why the documents referred to in clause (c) are not attached.
REPLY TO ANSWER
Time for filing and serving reply
70.08(1) A reply to an answer or to an answer and petition for divorce shall be
(a) prepared in accordance with Form 70K; and
(b) filed and served within 20 days after the answer has been served.
Financial information required
70.08(2) Where an issue related to support or division of property is raised in the answer, the person that filed the originating process shall file and serve any financial information required by subrule (3) that the person has not already filed and served, within 20 days after the answer has been served, whether or not a reply is filed and served.
70.08(3) Rule 70.07 applies with necessary changes to the financial information the person is required to provide under subrule (2).
PROVISION OF FINANCIAL INFORMATION AND SANCTIONS
Financial information if urgent situation
70.09(1) Where relief is urgently required, a party may commence a proceeding or file an answer or reply without complying with rule 70.05, 70.07 or 70.08 as the case may be, on filing an undertaking to file and serve the required financial information within 20 days of commencing a proceeding or filing an answer or reply.
Order requiring financial information to be filed
70.09(2) Where a party fails to file and serve the required financial information within the time prescribed, the court may, on motion without notice, make an order requiring that the financial information be filed and served within a specified time.
Particulars of financial information
70.09(3) Where the financial information provided by a party lacks particularity, the other party may demand particulars. If the particulars are not supplied within seven days, the court may, on such terms as are just,
(a) order that particulars be filed and served; or
(b) strike out the party's financial statement or the affidavit attaching documents required under section 21 of the Federal Child Support Guidelines and order that new documents be filed and served within a specified time.
Sanctions for failure to comply
70.09(4) Where a party fails to comply with an order to file and serve a financial statement, a new financial statement, particulars or other financial information, the court may make
(a) an order dismissing the party's action or striking out the answer;
(b) a contempt order against the party; and
(c) where the guidelines apply, any order under the guidelines that the court considers appropriate.
70.10 Where more than one family proceeding between the same parties has been commenced, all the proceedings shall be consolidated by the registrar,
(a) where a divorce has been claimed, under the title of proceeding and file number of the proceeding in which the divorce is claimed; and
(b) where a divorce has not been claimed, under the title of proceeding and file number of the proceeding first commenced.
DEFAULT IN FILING ANSWER
Default to be noted by registrar
70.11(1) Default in filing an answer within the time prescribed by this Rule shall be noted by the registrar upon proof of service of the petition.
70.11(2) A respondent may not file an answer after default has been noted, except with the consent of the other party or with leave of the court.
70.11(3) A respondent may file an answer at any time before default is noted.
70.12 Where a respondent
(a) is noted in default under rule 70.11; or
(b) files a notice withdrawing opposition (Form 70L);
the petition may be set down by filing a requisition
(c) for an oral hearing; or
(d) for a determination by a judge solely on affidavit evidence, without an oral hearing and without an appearance by the parties or their lawyer.
UNCONTESTED PETITIONS — AFFIDAVIT EVIDENCE
Affidavit of petitioner's evidence (Form 70M)
70.13(1) For purposes of a determination under clause 70.12(d), the petitioner shall file an affidavit of petitioner's evidence (Form 70M), adapted as required in the circumstances.
70.13(2) An affidavit filed as evidence under this rule shall contain only statements of facts that are within the personal knowledge of the deponent, except that in respect of the financial circumstances of the respondent, the affidavit may contain statements of facts that are not within the personal knowledge of the deponent if the facts are evidenced by documentation attached as an exhibit to the affidavit or are admitted by the respondent to the deponent.
UNCONTESTED PETITIONS — DOCUMENTS
70.14(1) Where a petition is set down under rule 70.12, the petitioner shall provide the court with three copies of an order (Form 70N) but if protective relief or a recalculation order is sought, four copies of an order are required.
Petition for divorce — documents
70.14(2) Where a petition for divorce is set down under rule 70.12, the petitioner shall, subject to subrule (3) and unless otherwise ordered by the court, provide the court with
(a) three copies of a divorce judgment (Form 70O);
(b) a stamped envelope addressed to each party at his or her last known address or the address given by the party when served with the petition; and
(c) three copies of an order (Form 70N) where corollary relief under the Divorce Act (Canada) or relief under another Act is sought, but if protective relief or a recalculation order is sought, four copies of an order.
70.14(3) Repealed.
70.15 A certificate of divorce issued under subsection 12(7) of the Divorce Act (Canada) shall be in Form 70P.
MEDIATION
70.16(1) Where an issue in a family proceeding has been referred to a mediator by the court pursuant to subsection 47(1) of The Court of Queen's Bench Act, the mediator,
(a) shall attempt to meet with the parties and, if they agree, attempt to mediate their dispute; and
(b) may meet with children, lawyers and such other persons as the mediator deems necessary, in an attempt to mediate the dispute.
70.16(2) Upon the conclusion of mediation, the mediator shall notify the parties, or their lawyers, in writing of the terms of any settlement that has been tentatively reached, and shall advise the court that mediation has been concluded.
70.17 Where pursuant to subsection 49(1) of The Court of Queen's Bench Act the court orders that a family evaluator be appointed, the family evaluator shall prepare and deliver to the court, in accordance with subsection 49(2) of the Act, a report which shall, unless directed otherwise, include
(a) information the evaluator considers relevant to the matters in dispute;
(b) an opinion as to the suitability of each party to have custody or access;
(c) the wishes of children, if volunteered by them;
(d) an opinion as to what plan of custody and access would be in the best interests of the children, whether it corresponds with the wishes of the children or not;
(e) the basis of the opinion; and
(f) a report upon any particular matter referred by a judge or master.
INTERIM PROCEEDINGS
70.18 An interim proceeding shall be commenced by a notice of motion (Form 70Q)
(a) which states the precise relief sought, and, where there is a claim for child support, states whether the claim is for an amount of support in the applicable table, an amount for special or extraordinary expenses, or another amount under the guidelines; and
(b) which is supported by an affidavit which clearly and concisely sets forth the facts upon which the moving party relies, and which shall not contain argument.
INTERIM RELIEF ORDER MADE WITHOUT NOTICE
70.19 A party who has obtained an interim order for relief without notice (Form 70N), except an order made under subsection 19(9) or 19(9.1) of the Divorce Act (Canada), shall immediately serve on the other party,
(a) a new notice of motion specifying
(i) the date on which the other party may appear, and
(ii) the relief that will be sought at that time;
(b) a copy of the order;
(c) copies of all affidavits filed in support of the application for the order;
(d) any further affidavits intended to be relied upon on the hearing of the new motion; and
(e) the originating petition and notice of motion, if not previously served.
AFFIDAVIT EVIDENCE ON MOTIONS AND APPLICATIONS
Subrules 39.01(2) and (3) not applicable
70.20(1) Subrules 39.01(2) and (3) do not apply to a motion or application in a family proceeding.
Time for filing and serving affidavits in support
70.20(2) Where a motion or application in a family proceeding is made on notice, the affidavits on which the motion or application is founded shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least 14 days before the hearing date or four days before the date the matter is first returnable before the court; and
(b) served within the time for service of the motion or application under these rules.
Time for filing and serving affidavits in opposition
70.20(3) All affidavits to be used at the hearing in opposition to a motion or application shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least seven days before the hearing date; and
(b) served within the time specified in clause (a).
Time for filing and serving affidavits in reply
70.20(4) All affidavits in reply to be used at the hearing shall be
(a) filed in the court office where the motion or application is to be heard, not later than 2:00 p.m. on a day that is at least four days before the hearing date; and
(b) served within the time specified in clause (a).
70.20(5) A party who wishes to file an affidavit and has not done so within the time allowed shall
(a) mark the first page of the affidavit, in prominent type, "Late"; and
(b) file the affidavit, together with a motion requesting leave for the late filing, returnable before the presiding judge on the hearing date.
70.20(6) Where a hearing date for a motion has been set, no other motion shall be heard on that hearing date without
(a) the consent of the other party; or
(b) obtaining leave of the court.
Delayed motions deemed abandoned
70.20(7) Where a motion has been filed and a hearing date has not been set within nine months of the date of filing, the motion is deemed to be abandoned, unless leave is granted to extend the time for setting a hearing date.
70.20(8) A party to a motion or application is entitled to file one affidavit of the party in support of or in opposition to the motion or application.
70.20(9) A party may also file one affidavit from each person who is not a party, without leave, if that person has evidence relevant to the proceeding.
Affidavit responding to new matters
70.20(10) In addition, the party who commenced the motion or application is entitled to file a second affidavit of the party to respond to new matters contained in an affidavit that was filed by a responding party.
Leave required to file additional affidavits
70.20(11) Other than the affidavits referred to in subrule (8), (9) or (10), a party to a motion or application is not entitled to file any other affidavits without obtaining leave from a master or a case conference judge or the presiding judge at the hearing.
MOTIONS TO EXPUNGE AFFIDAVIT MATERIAL
70.21(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.
70.21(2) If a case conference is required by these rules, no motion for expungement may be heard until the first case conference has been held.
70.21(3) A party making a motion to expunge under subrule (1) shall
(a) identify in the motion any specific paragraph or portion of a paragraph to be expunged and briefly state his or her reasons; and
(b) file and serve the motion within four days after being served with the affidavit.
70.21(4) Within three days of the motion being served, the responding party may file and serve a response briefly stating the reasons for opposing the motion to expunge.
70.21(5) Oral argument by a party to the motion is not permitted unless the master hearing the motion so directs.
MOTION BRIEFS
70.22(1) Rule 37.08 (motion briefs) does not apply to a family proceeding.
Exception: recalculation proceedings
70.22(1.1) A motion brief is not required
(a) in a proceeding in which the only relief sought is a recalculation order; or
(b) in a proceeding by the support determination officer seeking an order of financial disclosure, enforcement of such an order or an order that income be imputed to a party.
70.22(2) A moving party shall file and serve a motion brief (Form 70R)
(a) at least four days before the hearing date; or
(b) if the hearing date is less than seven days after the date when it was obtained, before 2:00 p.m. on a day that is at least two days before the hearing date.
Responding party's motion brief
70.22(3) A responding party shall file and serve a motion brief (Form 70R)
(a) at least two days before the hearing date; or
(b) if the hearing date is less than seven days after the date when it was obtained, before 2:00 p.m. on a day that is at least one day before the hearing date.
70.22(4) The motion brief of each party shall
(a) set out the matters in issue;
(b) include a list of documents to be referred to by either party, including the date of filing and other identifying details;
(c) set out the party's position on the issues;
(d) include relevant cases and statutory provisions if a specific point of law is to be relied upon; and
(e) include calculations if any of the following are in issue:
(i) child support,
(ii) spousal support,
(iii) remission of arrears.
70.22(5) The judge or master may, either before or at the hearing of the motion, waive or vary the requirements of this rule where there is insufficient time to comply.
APPLICATION BRIEFS AND APPEAL BRIEFS
70.23(1) If an application is contested,
(a) rule 70.22 applies, with necessary changes; and
(b) an application brief is required using Form 70R (motion brief) with necessary changes.
70.23(2) If an appeal to a judge is filed, Rule 62 (appeals) applies and an appeal brief is required.
CASE MANAGEMENT — WINNIPEG CENTRE
DEFINITIONS
70.24(1) In this rule,
"answer" includes a statement of defence; (« réponse »)
"petitioner" includes an applicant and a plaintiff; (« requérant »)
"respondent" includes a defendant. (« intimé »)
APPLICATION OF CASE MANAGEMENT RULES
Application to proceedings in Winnipeg Centre
70.24(2) This rule applies to a proceeding commenced in the Winnipeg Centre on or after November 1, 2002 other than
(a) a proceeding under Part III (child protection) of The Child and Family Services Act;
(b) a proceeding to set aside a protection order under section 11 of The Domestic Violence and Stalking Act;
(c) subject to subrule (4), a proceeding under Part VII (private guardianship and access) of The Child and Family Services Act or under The Adoption Act;
(d) a proceeding under The Reciprocal Enforcement of Maintenance Orders Act or The Inter-jurisdictional Support Orders Act;
(e) a proceeding under Part VI of The Family Maintenance Act;
(f) a proceeding under section 18 or 19 of the Divorce Act (Canada) to vary, rescind or suspend an order of support made under that Act;
(g) in a proceeding in which the only relief sought is a recalculation order; and
(h) in a proceeding by the support determination officer seeking an order of financial disclosure, enforcement of such an order or an order that income be imputed to a party.
Motion to include excluded proceedings
70.24(3) A party to a proceeding that is excluded from case management under subrule (2) may make a motion to have this rule apply to that proceeding.
Application to contested private guardianship and access proceedings
70.24(4) If a party to a proceeding referred to in clause (2)(c) contests the proceeding, this rule applies to that proceeding.
Application to proceedings commenced before November 1, 2002
70.24(5) This rule applies to a proceeding commenced in the Winnipeg Centre of the family division before November 1, 2002, other than a proceeding referred to in subrule (2), if
(a) the proceeding had been selected by the court for case management before November 1, 2002; or
(b) a party to the proceeding files a requisition with the registrar requesting that this rule apply and a case conference be scheduled.
CASE MANAGEMENT PAMPHLET
70.24(6) The registrar shall give every petitioner in a family proceeding, other than a proceeding under Part III (child protection) of The Child and Family Services Act, sufficient copies of the case management pamphlet prepared by the registrar, for service on each party.
Petitioner serves case management pamphlet
70.24(7) The petitioner shall serve the case management pamphlet on every other party at the same time and in the same manner as the originating process is served.
Case management pamphlet given to party
70.24(8) The lawyer of record for a party who receives from the court, or is served with, the case management pamphlet shall give a copy of it to the party.
RESTRICTING MOTIONS AND APPLICATIONS
No motions or applications heard before first case conference held
70.24(9) No motion or application may be heard until the first case conference has been held, except in a situation of urgency or hardship with leave of a judge.
SCHEDULING FIRST CASE CONFERENCE
Scheduling first case conference
70.24(10) The first case conference in a proceeding shall be scheduled
(a) on the setting of a hearing date for the first contested motion or first contested application in a proceeding; or
(b) at any time on the request of a party to a proceeding.
Scheduling case conference if subrule (9) applies
70.24(11) If under subrule (9) a motion or application is heard before the first case conference is held, the first case conference shall be scheduled at the hearing of the motion or application.
Requisition for case conference filed and served
70.24(12) A party requesting a case conference shall
(a) set a date for the case conference with the registrar and file a requisition for a case conference; and
(b) serve the requisition on the other party at least 14 days before the date of the case conference unless the parties agree to a shorter period of notice.
Earlier date for case conference
70.24(13) A party may request an earlier date for a case conference by obtaining an earlier date from the registrar then filing and serving a requisition for a case conference at least 14 days before the date.
CASE MANAGEMENT INFORMATION STATEMENT
Case management information statement for first conference
70.24(14) For the first case conference, each party shall file and serve a case management information statement (Form 70S) no later than 2:00 p.m. on a day that is at least two days before the date of the first case conference.
Case management information statement for subsequent conference
70.24(14.1) For a subsequent case conference, each party shall file and serve a case management information statement (Form 70S) in accordance with subrule (14), unless the case conference judge otherwise directs.
Contents of case management information statement
70.24(15) The case management information statement shall include the following:
(a) if the proceeding is settled, an undertaking by the party who will be filing the final order or other concluding document that it will be filed within 30 days after the date of the case conference;
(b) if the proceeding is not settled, details of the outstanding issues.
SCHEDULING SUBSEQUENT CASE CONFERENCES
Scheduling a subsequent case conference
70.24(16) A case conference, other than the first case conference, may be scheduled
(a) at any time by a party to the proceeding in accordance with subrule (12); or
(b) at the conclusion of a case conference, at the discretion of the case conference judge.
ADJOURNING A CASE CONFERENCE
No adjournment if 200 day rule applies
70.24(17) No adjournment shall be allowed with respect to a case conference set down under clause (33)(b) except with leave of a judge obtained at least 14 days before the case conference date.
Adjourning first case conference
70.24(18) For the first case conference, a party may, with the consent of the other party, request an adjournment of a case conference, by filing a request for adjournment (Form 70T) at least 14 days before the date of the case conference. The request must set out
(a) the date to which the case conference is requested to be adjourned; and
(b) the circumstances necessitating the request for the adjournment.
One adjournment of first case conference
70.24(19) A case conference judge may grant only one adjournment of the first case conference, unless there are extraordinary circumstances.
Adjourning other than first case conference
70.24(20) With respect to adjourning a case conference other than the first one, a party may, with the consent of the other party, request an adjournment by filing a request for adjournment (Form 70T) at least 14 days before the date of the case conference.
CANCELLING A CASE CONFERENCE
70.24(21) A case conference may be cancelled by a case conference judge if the matter has been settled, discontinued or determined and the party requesting the cancellation files
(a) the final consent order or other concluding document; or
(b) an undertaking that the final consent order or other concluding document will be filed within 30 days after the date of that case conference.
ATTENDING A CASE CONFERENCE
Personal attendance by parties and lawyers
70.24(22) Each party and the lawyer who proposes to conduct the trial or hearing on the party's behalf, shall personally attend a case conference unless subrule (23) applies.
Telephone or video conference in extenuating circumstances
70.24(23) In extenuating circumstances, a party or a party's lawyer may attend a case conference by way of a telephone or video conference if
(a) facilities for a telephone or video conference are available at the court or provided by a party; and
(b) the telephone or video conference is arranged by the party and notice of the arrangement is given to the other parties and to the court.
POWERS OF CASE CONFERENCE JUDGE
Powers of case conference judge
70.24(24) The case conference judge may do one or more of the following:
(a) make consent orders and hear or dispose of a proceeding or an issue in a proceeding where the proceeding or issue is not contested;
(b) give such directions as the case conference judge considers necessary or advisable for the just, expeditious and cost-effective determination of the proceeding;
(c) adjourn the case conference and any scheduled hearing in accordance with these rules;
(d) repealed, M.R. 11/2005;
(e) set the proceeding down for trial, specify when and by whom the trial record is to be filed or adjourn any scheduled trial;
(f) order the payment of costs by a party or a party's lawyer and fix the costs.
Returning documents to parties
70.24(24.1) On the request of a party, any documents made available to the case conference judge shall be returned to the parties after the case conference, except those documents which the parties agree may be retained for the use of the judge who presides at the trial or hearing.
70.24(25) A case conference judge may deal with a failure to follow any provision of these rules by making any order that the judge considers appropriate, including
(a) an order for costs against a party or a party's lawyer;
(b) an order staying proceedings;
(c) an order striking out all or part of a pleading; and
(d) an order compelling the attendance of a party or a party's lawyer at a case conference.
70.24(26) If an order is made under clause (25)(b) or (c), the party against whom the order is made may make an application by notice of motion to the case conference judge to set aside the order.
CASE CONFERENCE MEMORANDUM
70.24(27) After a case conference, the case conference judge shall issue a memorandum setting out the results of the case conference, including
(a) any orders made or directions given;
(b) the issues that are resolved;
(c) the issues requiring a trial or hearing; and
(d) if the judge schedules a subsequent case conference or a party requests one, the date of the subsequent case conference and the steps to be taken before that case conference.
Memorandum to be filed and sent out
70.24(28) A memorandum under subrule (27) shall be filed and sent to the parties or their lawyers and, subject to subrule (29), is binding on the parties.
70.24(29) A party who disputes the accuracy of a memorandum issued under subrule (27) shall, within 14 days after receipt of the memorandum, notify the court and the other party of the objection and may request that the case conference be re-opened to address the matter in dispute, and the case conference judge may re-open the case conference for the purpose of addressing the objection.
70.24(30) Discussions at a case conference are without prejudice and shall not be referred to in motions or at the trial or hearing of the proceeding, except as disclosed in a memorandum under subrule (27).
TRIAL
Trial date set at case conference
70.24(30.1) A matter may only be set down for trial at a case conference unless a judge otherwise orders.
Case conference judge not to preside at trial
70.24(31) A judge who presides at a case conference in a proceeding shall not, except with the consent of the parties, preside at the trial or hearing.
DISMISSING PROCEEDINGS IN CERTAIN CIRCUMSTANCES
Notice of dismissal of proceeding 200 days after filing date
70.24(32) If 200 days after the date the originating process was filed,
(a) a case conference has not been scheduled; or
(b) default has been noted but the proceeding has not been set down for a hearing or a determination by a judge;
the registrar shall serve the petitioner, and the respondent if an answer has been filed, with a notice of dismissal as set out in subrule (33).
70.24(33) The registrar's notice shall state that an order dismissing the proceeding will be made without further notice unless, within 30 days after the date of the notice, one of the parties
(a) files the final consent order or concluding document disposing of all the issues in the proceeding;
(b) arranges for a case conference date to be set; or
(c) arranges for the matter to be set down for a hearing or a determination by a judge.
70.24(34) The registrar shall serve the notice by sending it by regular lettermail to
(a) the lawyer of record for the petitioner but if the petitioner is not represented by a lawyer, to the petitioner at his or her address as set out in the court file; and
(b) if an answer has been filed, to the lawyer of record for the respondent, but if the respondent is not represented by a lawyer, to the respondent at his or her address as set out in the court file.
Lawyer to serve notice of dismissal on client
70.24(35) A lawyer who is served with a registrar's notice under subrule (34) shall
(a) immediately serve the notice on his or her client by regular lettermail; and
(b) file proof of service within 14 days after the date the notice was served on the lawyer.
70.24(36) If neither party takes any action under subrule (33) within 30 days after the date of the notice, the registrar shall
(a) make an order dismissing the proceeding without costs; and
(b) serve the order by regular lettermail on the parties who were served with the notice under subrule (34).
Lawyer to serve dismissal order on client
70.24(37) Subrule (35) applies to a lawyer who is served with a registrar's dismissal order under clause (36)(b) with necessary changes.
Judge may set aside dismissal order
70.24(38) A judge may, on motion, set aside a registrar's dismissal order made under clause (36)(a).
PARENT INFORMATION PROGRAM
70.24.1(1) In this rule,
"application" includes a petition and a petition for divorce; (« requête »)
"attendance certificate" means a certificate signed by a program official confirming a party's attendance at the program; (« certificat de participation »)
"designated location" means a location designated by the government where the program is offered; (« lieu désigné »)
"party" means a party to a proceeding but does not include
(a) an agency within the meaning of The Child and Family Services Act,
(b) the Director of Child and Family Services appointed under The Child and Family Services Act, or
(c) the Director of Employment and Income Assistance designated under The Employment and Income Assistance Act; (« partie »)
"program" means the For the Sake of the Children parent information program operated by the government; (« programme »)
"program official" means a person who delivers the program or his or her delegate. (« responsable du programme »)
70.24.1(2) The purpose of this rule is to promote the best interests of children by providing an information program to persons in dispute over issues respecting children, as set out in subrule (3).
70.24.1(3) Subject to the provisions of this rule, every person residing in an area set out in subrule (8) or (9), who is a party to a proceeding that is in respect of
(a) custody;
(b) access; or
(c) private guardianship under Part VII of The Child and Family Services Act;
shall attend the program.
Proceedings to vary not included
70.24.1(4) Subrule (3) does not apply to a proceeding to vary an order.
70.24.1(5) A party shall attend the program
(a) before a motion for an interim order is heard by a judge; or
(b) if no motion for an interim order is heard, before an application for a final order is heard by a judge.
70.24.1(6) A certificate of attendance or the party's affidavit confirming his or her attendance at the program must be filed no later than 2 p.m. on a day that is at least two days before the hearing date of the motion or application, unless a judge waives the filing deadline.
70.24.1(7) This rule does not apply to the following proceedings:
(a) an inter-jurisdictional proceeding, including a request for return pursuant to The Hague Convention on the Civil Aspects of International Child Abduction;
(b) a proceeding in which the parties are consenting to the order;
(c) a proceeding that is unopposed;
(d) a proceeding in which default in filing an answer has been noted by the registrar.
Mandatory personal attendance in Winnipeg & Brandon areas
70.24.1(8) A party who resides in or within 100 kilometres of
(a) Winnipeg; or
(b) Brandon;
shall attend the program and shall do so in person, at the designated location for the area where the party resides.
Mandatory attendance in certain other areas
70.24.1(9) A party who resides in or within 80 kilometres (travelled on all-weather roads) of
(a) Dauphin;
(b) Flin Flon;
(c) Swan River;
(d) The Pas; or
(e) Thompson;
shall attend the program and shall do so
(f) in person, at the designated location for the area where the party resides; or
(g) by viewing the electronic version of the program at the designated location for the area where the party resides.
Order requiring attendance at program
70.24.1(10) Where a person
(a) is a party to a proceeding referred to in subrule (3) but does not reside in an area specified in subrule (8) or (9); or
(b) is a party to a proceeding to vary an order in respect of custody, access or private guardianship, regardless of where the party resides;
a judge may, on the motion of a party, or on the judge's own motion, make an order
(c) requiring a party to attend the program by a specified date; and
(d) specifying the manner of attending the program.
Exemption if program previously attended
70.24.1(11) A party is exempt from attending the program, if the party
(a) attended the program
(i) within the two-year period before the application was filed, or
(ii) if a motion for an interim order is filed after an application is filed, within the two-year period before the motion was filed; and
(b) files a certificate of attendance, or an affidavit confirming his or her attendance at the program, in accordance with subrule (6).
Exemption if program outside Manitoba previously attended
70.24.1(12) A party who attended a comparable program in a jurisdiction outside Manitoba is exempt from attending the program, if
(a) a program official approves the comparable program;
(b) the party attended the comparable program within the time period set out in clause (11)(a); and
(c) the party files the following documents within the time period set out in subrule (6):
(i) a certificate signed by the program official approving the comparable program,
(ii) an affidavit confirming the party's attendance at the comparable program.
Deferral, attendance alternative or exemption order
70.24.1(13) In a case of urgency, hardship, or where otherwise appropriate, the judge may, on the request of a party, or on the judge's own motion, make an order
(a) deferring the requirement that the party attend the program until a specified date, which may be after a motion for interim relief is heard;
(b) requiring the party to attend the program and specifying the manner of attending the program; or
(c) exempting the party from attending the program.
Requesting an order under subrule (13)
70.24.1(14) A party may make a request under subrule (13)
(a) by a motion to a judge;
(b) to a judge at a case conference; or
(c) to a judge at a pre-trial conference.
Consent of parties not required
70.24.1(15) Despite clause 70.24(24)(a) (case conference orders) and clause 70.26(8)(c) (pre-trial conference orders), a judge may make an order under subrule (13) with or without the consent of the parties.
Parent information program pamphlet
70.24.1(16) The registrar shall give every party who files an application or a motion in a proceeding to which this rule applies sufficient copies of the program pamphlet approved by the registrar, for service on all other parties.
70.24.1(17) The party who receives the pamphlets from the registrar shall serve the pamphlet on every other party at the same time and in the same manner as the application or motion is served.
70.24.1(18) If the lawyer of record for a party receives from the court or is served with the program pamphlet, the lawyer shall give a copy of it to the party.
Responding party's failure to attend program
70.24.1(19) The responding party's failure to attend the program shall not preclude the judge from hearing the other party's motion or application and the judge may make any order that the judge considers appropriate, including any order under subrule (20).
70.24.1(20) A judge may deal with a party's failure to attend the program, or to follow any other provision of this rule, by making any order that the judge considers appropriate, including any of the following:
(a) requiring the party to attend the program within a specified period of time and in a specified manner;
(b) ordering costs against a party or a party's lawyer;
(c) refusing to consider the party's evidence;
(d) suspending the party's right to submit evidence until the party attends the program;
(e) adjourning, staying or dismissing the proceeding;
(f) striking out all or part of a pleading.
Setting aside or varying order
70.24.1(21) If a judge makes an order under subrule (19) or (20), the party against whom the order is made may make an application by notice of motion to the judge to set aside or vary the order.
FAMILY PROPERTY REFERENCES
Family Property Act references
70.25(1) This rule applies to a reference before a master for an accounting of assets and liabilities between spouses or common-law partners under section 15 of The Family Property Act or for any other matter under The Family Property Act directed by a judge for a reference before a master.
70.25(2) An order directing a reference to a master for an accounting of assets and liabilities pursuant to section 15 of The Family Property Act shall set out the valuation date determined in accordance with section 16 of that Act unless the issue of determining the valuation date is specifically referred to the master in the order.
Directions from judge re shareability issues
70.25(3) If issues of shareability of assets or liabilities or ownership of assets are to be determined on the reference, directions shall be set out in the order of reference to delegate the determination of these issues to the master as part of the scope of the reference.
Directions from judge re non-shareable assets or debts
70.25(4) If jointly held assets or liabilities, or other assets or liabilities, alleged to be excluded from the application of The Family Property Act are to be valued on a reference, a specific direction for the valuation of such assets or liabilities shall be set out in the order of reference.
70.25(5) A motion to initiate a reference may be filed only after the order of reference has been signed by the judge.
70.25(6) The party seeking to initiate a reference (initiating party) shall file and serve the following documents on the other party (responding party) at least 25 days before the date the motion is returnable before the master:
(a) a notice of motion requesting that a date for a hearing for directions be set;
(b) a summary of assets and liabilities (Form 70U) which shall list as of the valuation date or if the valuation date is not agreed to, as of the proposed valuation date,
(i) the assets owned, controlled or possessed by the initiating party and the value of each asset as of the valuation date, and
(ii) the liabilities of the initiating party and the amount of each liability as of the valuation date.
70.25(7) Within 10 days after being served with the initiating party's summary of assets and liabilities, the responding party shall file the following documents and serve them on the initiating party:
(a) the responding party's summary of assets and liabilities (Form 70U), which shall list as of the valuation date:
(i) the assets owned, controlled or possessed by the responding party and the value of each asset as of the valuation date, and
(ii) the liabilities of the responding party and the amount of each liability as of the valuation date;
(b) the responding party's response to the initiating party's summary of assets and liabilities and include
(i) whether the responding party agrees or disagrees with the inclusion of each asset or liability,
(ii) the responding party's position as to the value of each asset and liability, and
(iii) identification and valuation of any other assets or liabilities which he or she believes should be included in, or excluded from, the initiating party's summary of assets and liabilities.
70.25(8) The initiating party shall file and serve a response to the responding party's summary of assets and liabilities. It shall be completed in the same manner as the responding party's response and filed and served no later than 2:00 p.m. on the day before the hearing date of the motion.
Serving supporting documentation
70.25(9) When an initiating party or a responding party serves a summary of assets and liabilities, he or she shall also serve on the other party any relevant supporting documentation that substantiates the information in the summary of assets and liabilities.
70.25(10) The notice of motion to initiate a reference under subrule (6) is returnable before a master at the time and date determined by the registrar.
If required documents not filed
70.25(11) On the date the motion is returnable, if the documents referred to in subrules (7) and (8) have been filed and served as required by this rule, the master may set a hearing date for directions. If they have not, the master may adjourn the motion on such terms that are just.
70.25(12) Part XIII of the Rules (references) applies to a reference before the master under this rule.
PRE-TRIAL CONFERENCES
70.26(1) Rule 50 (pre-trial conferences) does not apply to a family proceeding.
Exception: if case management applies
70.26(2) This rule does not apply to a family proceeding in the Winnipeg Centre governed by rule 70.24 (case management).
Exception — recalculation orders
70.26(2.1) A pre-trial conference is not required
(a) in a proceeding in which the only relief sought is a recalculation order; or
(b) in a proceeding by the support determination officer seeking an order of financial disclosure, enforcement of such an order or an order that income be imputed to a party.
Initiation of pre-trial conference by a party
70.26(3) A party may initiate a pre-trial conference in a family proceeding at any time by
(a) requesting a date for a pre-trial conference from the registrar;
(b) filing the party's pre-trial brief; and
(c) serving the other parties to the proceeding with the pre-trial brief, immediately after filing it, but in any event, no later than 20 days before the date of the pre-trial conference.
70.26(4) The court may initiate a pre-trial conference at any time, set the time and date for it and direct a party to file a pre-trial brief.
70.26(5) A pre-trial brief shall set out
(a) the date, time and location of the pre-trial conference;
(b) the issues which have been resolved;
(c) the issues which remain unresolved;
(d) the position of the parties on unresolved issues; and
(e) where support or division of property remains in issue, the current financial position of the parties.
70.26(6) Not less than 10 days before a pre-trial conference, every other party shall file a pre-trial brief with the court and serve it on the other parties.
70.26(7) The following subrules respecting case conferences apply, with necessary changes, to pre-trial conferences:
(a) subrules 70.24(22) and (23) (attendance of parties and their lawyers);
(a.1) subrule 70.24(24.1) (returning documents to parties);
(b) subrule 70.24(25) (failure to follow rules);
(c) subrule 70.24(26) (reinstatement of pleadings);
(d) subrule 70.24(27) and (28) (case conference memorandum);
(e) subrule 70.24(29) (re-opening a case conference);
(f) subrule 70.24(30) (discussions without prejudice);
(g) subrule 70.24(31) (case conference judge not to preside at trial).
70.26(8) At a pre-trial conference, the judge may do one or more of the following:
(a) give such directions as the judge considers necessary or advisable for the just, expeditious and cost effective determination of the proceeding;
(b) adjourn the pre-trial conference;
(c) make consent orders and hear or dispose of a proceeding or an issue in a proceeding where the proceeding or issue is not contested;
(d) set the proceeding down for trial, specify when and by whom the trial record is to be filed or adjourn any scheduled trial;
(e) order the payment of costs by a party or a party's lawyer and fix the costs.
PLEADINGS
Proceeding commenced by petition
70.27(1) In a family proceeding commenced by a petition for divorce (Form 70A) or a petition (Form 70B); pleadings consist of
(a) the petition or petition for divorce;
(b) the answer or answer and petition for divorce; and
(c) reply, if any.
Proceeding commenced by statement of claim
70.27(2) In a family proceeding commenced by a statement of claim, pleadings consist of the statement of claim, the statement of defence and reply, if any.
Proceeding commenced by notice of motion to vary
70.27(3) In a family proceeding commenced by a notice of motion to vary, pleadings consist of the notice of motion to vary.
Proceeding commenced by notice of application
70.27(4) In a family proceeding commenced by a notice of application, a notice of application to vary or a notice of application for guardianship, pleadings consist of that notice of application.
70.28 A trial record in a family proceeding shall contain, in the following order,
(a) a table of contents, describing each document by its content and date;
(b) a copy of the pleadings;
(c) a copy of a request or order for particulars and the particulars delivered in response;
(d) a copy of any order respecting the conduct of the trial;
(e) any other document ordered by a judge at a pre-trial conference or case conference to be included in the trial record.
USE AT TRIAL OF CROSS-EXAMINATION ON AFFIDAVIT
70.29 In a family proceeding, the cross-examination on the affidavit of a party that is conducted before a trial may be used at the trial in the same manner as that party's examination for discovery.
AFFIDAVIT EVIDENCE AT TRIAL
70.30(1) In a family proceeding, the evidence of a witness at a trial may, subject to this rule, be presented by affidavit.
70.30(2) Subrule 4.07(2) applies to an affidavit under this rule.
70.30(3) The affidavit shall be filed and served on any opposing party at least 21 days before the date of the trial.
Notice to cross-examine at trial
70.30(4) An opposing party who wishes to cross-examine the deponent of an affidavit filed under this rule shall give notice of the intent to cross-examine to the party filing the affidavit at least 10 days before the date of the trial.
70.30(5) Where notice is received in accordance with subrule (4), the deponent shall attend at the trial and submit to cross-examination, and where the deponent fails to do so the affidavit shall not be accepted in evidence unless the judge directs otherwise.
70.30(6) Where a deponent is required to attend at trial for cross-examination under subrule (5) and the court is of the opinion that the evidence so obtained does not materially add to the affidavit evidence, the court may order that costs in an appropriate amount be awarded against the party requiring the attendance.
Limitation to calling evidence
70.30(7) A party who presents evidence by affidavit under this rule shall not, except with leave of the court, call any additional evidence from the deponent, but this does not limit the party's right to re-examine the deponent on a new matter brought out on cross-examination.
ORDERS — GENERAL PROVISIONS
70.31(1) Rule 59 (orders) does not apply to an order in a family proceeding.
70.31(2) An order is effective from the date on which it is pronounced, unless it provides otherwise.
70.31(3) Subject to subsection 24.3(1) of the Child Support Guidelines Regulation, Manitoba Regulation 58/98, a court shall grant only relief that has been claimed in a pleading and shall deal with each claim for relief by granting an order
(a) for the relief claimed;
(b) dismissing the claim for relief;
(c) adjourning the claim for relief; or
(d) allowing the claim for relief to be withdrawn by a party.
70.31(4) An interim order shall deal with all relief claimed in a motion.
70.31(5) A final order shall deal with all relief claimed in the pleadings.
Order on which interest payable
70.31(6) An order for the payment of money on which postjudgment interest is payable shall set out the rate of interest and the date from which interest is payable.
70.31(7) An order shall have one of the following titles:
(a) Divorce Judgment (Form 70O);
(b) Interim Order (Form 70N);
(c) Final Order (Form 70N);
(d) Order (Form 70N), to be used for an order other than one described in this subrule;
(e) Variation Order (Form 70N);
(f) Default Order (Form 70N);
(g) Provisional Order (Form 70N);
(h) Provisional Variation Order (Form 70N);
(i) Confirmation Order (Form 70N);
(j) Recalculated Child Support Order.
70.31(8) A covering page is not required for an order.
70.31(9) An order, other than a recalculated child support order, shall be in Form 70O (divorce judgment) or 70N (order) and shall include
(a) the name of the judge or officer who pronounced it;
(b) the date on which it was pronounced;
(c) a preamble setting out the particulars necessary to understand the order, including
(i) the date of the hearing,
(ii) the name of each party who was present and whether he or she was represented by a lawyer,
(iii) the name of each party who was not present and whether he or she was represented by a lawyer,
(iv) whether the parties consent to the order, or a part of it;
(v) the documents filed in support, and
(vi) any undertaking made by a party as a condition of the order;
(d) the statutory provisions or rules under which the relief is granted; and
(e) the names of persons to be served with the order and the manner of service.
Content of recalculated child support order
70.31(9.1) A recalculated child support order must comply with subsection 24.10(2) of the Child Support Guidelines Regulation, Manitoba Regulation 58/98, and include
(a) the name of the support determination officer who pronounced it;
(b) the date on which it was pronounced;
(c) a preamble setting out the particulars necessary to understand the order, including
(i) the date of the child support order being recalculated and the name of the judge who pronounced it, and
(ii) the date of the recalculation order and the name of the judge who pronounced it;
(d) the statutory provisions under which the relief is granted; and
(e) the names of persons to be served with the order and the manner of service.
70.31(10) In addition to the requirements of subrule (9), but subject to subrules (10.1) and (10.2), a variation order shall include
(a) in the preamble,
(i) the date of the order being varied and the name of the judge who pronounced it, and
(ii) the date of any prior variation order and the name of the judge who pronounced it; and
(b) in the body of the order, the clause of the original order or prior variation order to be deleted or replaced, and the clause to be added, if any.
Content of certain variation orders respecting recalculated child support orders
70.31(10.1) Where subsection 39.1(5) of The Family Maintenance Act or subsection 25.1(4) of the Divorce Act (Canada) applies and a party applies for a variation within 30 days after both parties are notified of the recalculation of child support, the variation order shall include
(a) in the preamble
(i) the date of the recalculated child support order and the name of the support determination officer who pronounced it, and
(ii) a statement that subsection 39.1(5) of The Family Maintenance Act or subsection 25.1(4) of the Divorce Act (Canada), as the case may be, applies; and
(b) in the body of the order
(i) the clause of the original order, prior variation order or prior recalculated child support order to be deleted or replaced, and the clause to be added, if any; and
(ii) the effect of the variation order on the recalculated order to which subsection 39.1(5) of The Family Maintenance Act or subsection 25.1(4) of the Divorce Act (Canada) applies.
Content of orders varying recalculated child support orders
70.31(10.2) A variation order varying a recalculated child support order shall include
(a) in the preamble, the date of the recalculated child support order and the name of the support determination officer who pronounced it, and
(b) in the body of the order, the clause of the recalculated child support order being deleted or replaced and the new child support provision, if any.
Standard clauses required for orders in certain Acts and in the Rules
70.31(11) Subject to subrules (12) and (13), where an order is pronounced under one of the following enactments standard clauses shall be used in the preamble and body of the order:
(a) the Divorce Act (Canada), other than a recalculated child support order;
(b) The Family Maintenance Act, other than a recalculated child support order;
(c) The Family Property Act;
(d) The Law of Property Act;
(e) The Court of Queen's Bench Act or the Rules;
(f) The Reciprocal Enforcement of Maintenance Orders Act or The Inter-jurisdictional Support Orders Act;
(g) Part VII of The Child and Family Services Act (private guardianship of the person and access);
(h) The Child Custody Enforcement Act;
(i) The Domestic Violence and Stalking Act, except a protection order pronounced under that Act.
M.R. 104/2004; 92/2005; 93/2005
Standard clauses required in preamble
70.31(12) The preamble of an order referred to in subrule (11) shall use standard clauses, unless the order is pronounced under an Act which requires that the preamble be in a different form.
Exceptions to standard clauses
70.31(13) A proposed order which contains non-standard wording but under subrule (11) requires standard clauses may be accepted by the registrar if
(a) no standard clauses are appropriate;
(b) the wording of the order conforms as much as possible to the closest applicable standard clause; and
(c) an explanatory note (Form 70V) is filed with the proposed order setting out the reasons for using the non-standard wording.
70.31(14) If written reasons for an order are given, a copy of the reasons shall be placed on the court file.
70.31(15) A completed enforcement information form (Form 70W) shall be provided to the court with the proposed order if a proposed order
(a) grants support under The Family Maintenance Act or The Child and Family Services Act, unless an enforcement opt-out form (Form 70X) in duplicate, is provided to the court with the proposed order signed by the person, or the child and family services agency, as the case may be, who is entitled to receive the payments; or
(b) grants support under any other legislation and orders payments be enforced through the designated officer under Part VI of The Family Maintenance Act.
Form 70W or Form 70X given to designated officer
70.31(16) The registrar shall give the designated officer under Part VI of The Family Maintenance Act
(a) a copy of the order; and
(b) the completed enforcement information form (Form 70W) or two copies of the enforcement opt-out form (Form 70X), as the case may be.
70.32 Repealed.
PREPARING, SIGNING AND SERVING ORDERS
70.33(1) Repealed.
Endorsement by judge or officer on disposition sheet
70.33(2) The terms of every order shall, at the time the order is pronounced, be endorsed on a disposition sheet, and the disposition sheet shall be signed by the judge or officer pronouncing the order unless
(a) the order is signed by the judge or officer at the time the order is pronounced; or
(b) the circumstances make it impractical to do so.
70.33(3) Any party affected by an order may prepare a draft of the order and shall, unless otherwise ordered by the court, send it to all other parties present at the hearing for approval of its form or content, or both.
Approval of form of order required
70.33(4) Unless otherwise ordered by the court, if a party to a proceeding
(a) is represented by a lawyer, the order shall be sent to the party's lawyer for approval; and
(b) is not represented by a lawyer, the order shall be sent to the party.
Approval of form of order not required
70.33(5) Approval of the form of an order is not required for an order that merely dismisses or adjourns a motion, proceeding or appeal, or allows a party to withdraw a claim for relief, with or without costs.
70.33(6) Subject to subrule (7), every order shall be submitted for the signature of the registrar at the place of hearing unless the judge or officer who pronounced the order
(a) signed it; or
(b) directs that it be signed by the judge or officer who pronounced it.
Signing of order where party not represented by a lawyer
70.33(7) If a party to a proceeding was not represented by a lawyer, the order shall be submitted to the registrar for the signature of the judge or officer who made it.
Signing of order where form of order approved
70.33(8) Where all the parties at the hearing have approved the form of the order, the party who prepared the order shall
(a) file a copy of the order with the approval as to form, of all parties present at the hearing; and
(b) leave the order with the registrar for signing by the registrar, judge or officer, as the case may be.
Signing of order where approval of form not required
70.33(9) Where approval of the form of an order is not required under subrule (5), the party who prepared the order shall leave it with the registrar.
Signing of order where registrar satisfied
70.33(10) Where the order is to be signed by the registrar and the registrar is satisfied that the order is in proper form, the registrar shall sign the order and return a true copy to the party who left it to be signed.
Signing of order where registrar not satisfied
70.33(11) Where the registrar is not satisfied that the order is in proper form, the order shall be returned unsigned to the party who left it to be signed and the party may
(a) submit the order in proper form and, if required by the registrar, file the approval of the parties to the order in that form, together with a copy of the order; or
(b) arrange to have the order settled and signed by the judge or officer who made it.
Appointment to settle where form of order not approved
70.33(12) Where approval as to form is not received within a reasonable time, a party may obtain an appointment to have the order settled and signed by the judge or officer who made it.
70.33(13) In a case of urgency, the order may be settled and signed by the judge or officer who pronounced it without the approval of any of the parties who were present or represented at the hearing.
Settlement by another judge or officer
70.33(14) Where, after making an order, a judge or officer ceases to hold office, becomes incapacitated, or for any reason unavailable, the order may be settled and signed,
(a) where made by a judge, by another judge; and
(b) where made by an officer, by another officer or a judge.
70.33(15) The original copy of every order shall be filed immediately after it has been signed.
Distribution of divorce judgment
70.33(16) Upon the signing of a divorce judgment, the registrar shall immediately mail a copy of it to each party, unless otherwise ordered by the judge.
Service of order for other relief
70.33(17) A party who obtains an order granting relief other than a divorce shall, within 20 days after the date the order is signed, serve a copy of the order on the other party at such address as the judge directs.
CHANGES TO ORDERS
Errors or omissions in an order
70.34(1) An order that
(a) contains an error arising from an accidental slip or omission; or
(b) requires amendment in any particular on which the court did not adjudicate;
may be amended on a motion in the proceeding, and a copy of the order containing the amendment shall be filed.
Setting aside or suspending an order, etc.
70.34(2) A party who seeks to
(a) set aside or vary an order on the ground of fraud or facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain relief other than that originally awarded;
may make a motion in the proceeding for the relief claimed.
SATISFACTION OF ORDER
70.35(1) A party may acknowledge satisfaction of an order by a notice of satisfaction (Form 70Y) signed by the party before a witness, or by the party's lawyer, and the document may be filed in the court office where the order was filed.
70.35(2) Upon filing of a notice of satisfaction under subrule (1), the registrar shall note on the order that notice of satisfaction has been filed.
70.36 Where an order of the family division is appealed to the Court of Appeal, the appellant shall immediately file a copy of the notice of appeal in the court office from which the order issued.
VARIATION OF FINAL ORDERS
70.37(1) Where a final order in a family proceeding may be varied, rescinded or suspended, an order to vary, rescind or suspend may be obtained,
(a) where the proceeding was commenced in Manitoba or transferred to the court from another province, by filing a notice of motion to vary (Form 70H); and
(b) where the proceeding is to vary, rescind or suspend an order made under the Divorce Act (Canada) by a court in another province, by filing a notice of application to vary (Form 70G).
70.37(2) Every motion or application under subrule (1) except a motion or application referred to in subrule (5) shall be supported by an affidavit stating, where applicable,
(a) the current marital or relationship status of the parties;
(b) the ordinary residence of the parties and the children of the marriage or relationship;
(c) particulars of current custody and access arrangements and particulars of any proposed change;
(d) particulars of current support arrangements and particulars of any proposed change;
(e) the amount of arrears under any prior support order; and
(f) particulars of any change in circumstance of the parties or the children since the date any prior order was made.
Affidavit made on information and belief
70.37(3) Subrule 39.01(4) and not subrule 4.07(2) applies to an affidavit made in support of a motion or application under subrule (1).
Affidavit re spousal or common-law partner support variation
70.37(4) If the motion or application under subrule (1) is for an order to vary, rescind or suspend spousal or common-law partner support, in addition to the requirements of subrule (2), the affidavit shall include
(a) the date of the last spousal or common-law partner support order with a copy of that order attached to the affidavit;
(b) particulars of current support arrangements and particulars of any proposed change;
(c) particulars of any change in circumstances since the date the support order was made;
(d) the financial circumstances of the parties when the support order was made, with copies of any financial statements filed by the parties in relation to that order;
(e) the total income of the applicant in each year for which the variation, rescission or suspension of support is requested, evidenced by copies of income tax returns and other relevant documentation;
(f) if the applicant is presently unemployed, the length of and reason for the unemployment and the particulars of any efforts to gain employment;
(g) particulars of any expenses the applicant shares with another person;
(h) the current financial circumstances of the applicant with any financial information required by subrule (6);
(i) the amount of arrears under any prior support orders and, if the support was or is payable through a provincial or territorial maintenance enforcement program, with a payment record from the applicable program as to the amount of arrears under the support order; and
(j) if the applicant is in receipt of money from any source, documentation to verify the amount and particulars.
Affidavit re child support variation
70.37(5) A motion or application under subrule (1) for an order to vary, rescind or suspend child support shall be supported by an affidavit containing the following information and documents, where applicable:
(a) the date of the last child support order with a copy of that order attached to the affidavit;
(a.1) the date of the last recalculated child support order and the date on which the recalculated child support amount became payable, or would have become payable but for the filing of the notice of motion to vary, with a copy of that order attached to the affidavit;
(b) the ordinary residence of the parties and of the children for whom support is sought;
(c) particulars of current custody arrangements;
(d) particulars of current support arrangements and particulars of any proposed change;
(e) particulars of any change in circumstance since the date the support order was made, unless,
(i) in the case of an order under the Divorce Act (Canada), the order was made before May 1, 1997, or
(ii) in the case of an order under The Family Maintenance Act, the order was made before June 1, 1998;
(f) the financial circumstances of the parties when the support order was made, with copies of any financial statements filed by the parties in relation to that order, unless,
(i) in the case of an order under the Divorce Act (Canada), the order was made before May 1, 1997, or
(ii) in the case of an order made under The Family Maintenance Act, the order was made before June 1, 1998;
(g) any financial information required by subrule (6);
(h) the amount of arrears under any prior support orders, and if the support was or is payable through a court, with a payment record from the applicable provincial maintenance enforcement office as to the amount of arrears under the support order attached to the affidavit;
(i) where the applicant seeks remission of arrears, documentation attached to the affidavit, including tax returns, evidencing the applicant's income in each year in which the remission is sought.
Financial information required
70.37(6) Rule 70.05 applies with necessary changes to the financial information required to be filed with a motion or application to vary, rescind or suspend support,
Affidavit opposing support variation
70.37(7) Where a respondent wishes to oppose an application or motion to vary, rescind or suspend support, the respondent shall file and serve an affidavit and any financial information required by subrule (8) within 20 days of service of the motion or application.
Financial information required under subrule (7)
70.37(8) Subrules 70.07(4) to (8) apply with necessary changes to the financial information required to be filed and served by the respondent under subrule (7).
Additional financial information required of applicant
70.37(9) The party applying under subrule (1) shall file and serve any financial information required by subrule (10) that the party has not already filed and served, within 20 days after service of the respondent's affidavit.
Financial information required under subrule (9)
70.37(10) Subrules 70.07(4) to (8) apply with necessary changes to the financial information that the party applying under subrule (1) is required to provide under subrule (9).
70.37(11) Rule 70.09 (provision of financial information and sanctions) applies with necessary changes to proceedings under this rule.
Original pleadings to be filed
70.37(12) Before the hearing of an application under clause (1)(b), where the order sought to be varied, rescinded or suspended is granted in a divorce proceeding by a court of another province, copies of the original divorce pleadings and all corollary relief orders shall be filed with the court.
70.37(13) A notice of motion to vary or a notice of application to vary shall be served on the respondent in the same manner as a petition under rule 70.06 unless otherwise ordered by the court.
70.37(14) Where, under this rule, the court varies, rescinds or suspends an order referred to in clause (1)(b), the registrar shall forward a certified copy of the variation order to the court which made the original order, and to any other court which has varied the original order.
PROVISIONAL ORDER FOR SUPPORT VARIATIONS UNDER THE DIVORCE ACT (CANADA)
70.38(1) Proceedings to obtain a provisional order under section 18 of the Divorce Act (Canada) shall be commenced by filing a notice of application to vary (Form 70G).
Statement to accompany application
70.38(2) An application for a provisional order under subrule (1) shall be accompanied by a statement of the applicant providing any available information respecting the identification, location, income and assets of the respondent.
Transmission of provisional variation order
70.38(3) Upon the signing of a provisional variation order, the registrar shall as expeditiously as possible send to the Attorney General for the province where the respondent ordinarily resides,
(a) three copies of the provisional order certified by the registrar;
(b) a certified or sworn copy of the material filed in support of the application for provisional relief; and
(c) a statement giving information respecting the identification, location, income and assets of the respondent.
PROVISIONAL ORDER UNDER THE DIVORCE ACT (CANADA) RETURNED FOR FURTHER EVIDENCE
70.39(1) Where a provisional order made by the court is remitted back for further evidence under subsection 18(5) of the Divorce Act (Canada), the registrar shall as expeditiously as possible give notice to the applicant to submit further evidence.
70.39(2) A notice under subrule (1) may be served by regular lettermail.
Evidence and recommendations to confirming court
70.39(3) Where further evidence is received under subrule (1), the registrar shall as expeditiously as possible forward to the confirming court a certified or sworn copy of the evidence tendered, together with such recommendations as the court considers appropriate.
PROVISIONAL ORDER UNDER THE DIVORCE ACT
(CANADA) FROM OTHER COURT RECEIVED FOR CONFIRMATION
Service of documents and notice of hearing
70.40(1) Where the court receives a provisional order for confirmation under section 19 of the Divorce Act (Canada), the registrar shall as expeditiously as possible cause to be served,
(a) on the respondent, a copy of the documents received from the court that made the provisional order; and
(b) on both parties, a notice of confirmation hearing in Form 70Z.
70.40(2) Unless otherwise ordered by the court
(a) the notice of confirmation hearing may be served on the applicant by regular lettermail; and
(b) the notice of application and documents shall be served on the respondent personally or in accordance with subrules 16.03(2) and (3).
70.40(3) The order made by the court upon completion of the confirmation hearing shall be prepared and filed in the court by the registrar.
70.40(4) The registrar shall as expeditiously as possible forward a certified copy of the order to
(a) to the Attorney General of Manitoba;
(b) to the court that made the provisional order; and
(c) where the court that made the provisional order is not the court that made the support order, to the court that made the support order.
70.40(5) Where the confirming order varies or refuses to confirm the provisional order, the registrar shall expeditiously as possible forward a copy of the judge's reasons to the Attorney General and to the court that made the provisional order.
ATTENDANCE BY TELEPHONE OR OTHER MEANS
70.41 The Rules apply with respect to attendances by parties and their lawyers, other than attendances at case conferences (subrules 70.24(22) and (23)) or pre-trial conferences (clause 70.26 (7)(a)).
70.42 Interrogatories in accordance with Rule 35 are available with respect to a motion or application under subrule 70.03(7) (varying a final order) or an application under subrule 70.03(8) (other relief).
ENFORCEMENT PROCEEDINGS UNDER THE FAMILY MAINTENANCE ACT
70.43 Rules 53.01 and 53.02 apply, with necessary changes, to the evidence given at an enforcement hearing under section 57 or 59.1 of The Family Maintenance Act.
NOTICE OF CHANGE OF NAME
Filing and serving notice of change of name
70.44 If a person changes his or her name after a family proceeding to which he or she is a party has been commenced,
(a) the party shall
(i) file a notice of change of name (Form 70AA) before filing a subsequent document in the proceeding, and
(ii) serve the notice on all parties;
(b) the registrar shall amend the title of proceedings accordingly and provide a copy of the notice to the designated officer under Part VI of The Family Maintenance Act.
RULE 70
FORMS
| Form Number | Title of Form |
| Form 70A | Petition for Divorce |
| Form 70B | Petition |
| Form 70C | Acknowledgment of Service |
| Form 70D | Financial Statement |
| Form 70E | Notice of Application |
| Form 70F | Notice of Application for Guardianship |
| Form 70G | Notice of Application to Vary |
| Form 70H | Notice of Motion to Vary |
| Form 70I | Affidavit of Service |
| Form 70J | Answer |
| Form 70K | Reply to Answer or Reply to Answer and Petition |
| Form 70L | Notice Withdrawing Opposition |
| Form 70M | Affidavit of Petitioner's Evidence |
| Form 70N | Order |
| Form 70O | Divorce Judgment |
| Form 70P | Certificate of Divorce |
| Form 70Q | Notice of Motion |
| Form 70R | Motion Brief |
| Form 70S | Case Management Information Statement |
| Form 70T | Request for Adjournment |
| Form 70U | Summary of Assets and Liabilities |
| Form 70V | Explanatory Note |
| Form 70W | Enforcement Information |
| Form 70X | Enforcement Opt-Out |
| Form 70Y | Notice of Satisfaction |
| Form 70Z | Notice of Confirmation Hearing |
| Form 70AA | Notice of Change of Name |
RULE 71 — ASSESSMENT OF LAWYER'S BILL
TABLE OF CONTENTS
71.01 Application for assessment
71.02 Filing application
71.03 Notice of application
71.04 Affidavit
71.05 Service of application
71.06 No action by lawyer
71.07 Applicable rules
71.08 Powers of the court
71.09 Hearing by a judge
71.10 Hearing by a master
71.11 Confirmed report is court order
71.12 Client's documents
71.13 Cost of unnecessary steps
71.14 Application of Rule
Form 71A Notice of application for assessment of lawyer's bill
RULE 71
ASSESSMENT OF LAWYER'S BILL
APPLICATION FOR ASSESSMENT
71.01(1) A lawyer's client may make an application to the court at any time within six months after receiving the lawyer's bill for an assessment of
(a) that bill; or
(b) a bill previously rendered in respect of the same matter;
by filing a notice of application in Form 71A verified by an affidavit made in accordance with rule 71.04.
71.01(2) If the time for filing an application under subrule (1) conflicts with section 53 of The Legal Profession Act, that Act prevails.
FILING APPLICATION
71.02(1) If the lawyer's bill is rendered primarily in connection with a family proceeding within the meaning of section 41 of The Court of Queen's Bench Act, the application shall be filed in the family division.
71.02(2) Subject to subrules (3) and (4), the application shall be made to a master.
71.02(3) If a master is not available at the judicial centre where the notice of application is filed, the application shall be made to a judge.
Exception — re unfair contingency contract
71.02(4) If the application is for a declaration under subsection 55(5) of The Legal Profession Act, the application shall be made to a judge.
71.03 The notice of application shall set out
(a) as the hearing date, the date obtained from the registrar; and
(b) as the place of hearing, the judicial centre in which the applicant proposes the application to be heard.
AFFIDAVIT
71.04 The affidavit shall
(a) state the date that the lawyer's bill which is to be assessed was received by the applicant;
(b) set out relevant facts to support the grounds on which the applicant is seeking to have the lawyer's bill assessed; and
(c) include copies of all bills received by the applicant that relate to the assessment, attached as exhibits.
71.05 The notice of application and affidavit shall be served on the respondent lawyer at least 14 days before the date of the hearing.
NO ACTION BY LAWYER
71.06 After being served with a notice of application under rule 71.01 the respondent lawyer shall not commence a proceeding or take a further step in a proceeding relating to the bill that is the subject of the application, until the application is disposed of, except with leave of the court.
PROCEDURE AND POWERS
71.07 The following rules apply to the assessment hearing, with necessary changes:
(a) rule 38.08 (hearing by telephone, video conference or other means of communication);
(b) rule 38.12 (dismissal of application for delay).
71.08 On hearing an application under this rule, the court has the power to do any one or more of the following:
(a) order the lawyer to deliver a bill to the client;
(b) order the lawyer to provide particulars of a bill already delivered to the client;
(c) specify the time within which a lawyer must comply with clause (a) or (b);
(d) with or without a motion, make an order for security
(i) for payment of the amount which may be found due and owing, or
(ii) for costs;
(e) direct the parties to attend a settlement conference with a judge or master who thereafter must not hear the matter if a settlement is not concluded;
(f) vary or disallow any fee, charge or disbursement included in the lawyer's bill on any ground;
(g) vary or disallow the amount of interest payable on the bill;
(h) award and assess costs in respect of the application;
(i) dismiss the application;
(j) exercise any additional power that is conferred by rule 55 in relation to the conduct of a reference;
(k) make any other order as is just.
HEARING BY A JUDGE
71.09 If the application is heard by a judge, the judge may make
(a) an order setting out the amount, if any, payable by the client, after taking an account of all payments and credits; and
(b) any other order as is just.
HEARING BY A MASTER
71.10(1) If the application is heard by a master, the master shall make a report that
(a) contains his or her findings and conclusions;
(b) sets out the amount, if any, payable by the client, after taking an account of all payments and credits; and
(c) sets out a deemed confirmation date determined in accordance with subrule (2).
71.10(2) The deemed confirmation date shall be a date that is 35 days after the date the report is signed by the master.
71.10(3) A report under subrule (1) has no effect until it is confirmed.
71.10(4) The following rules apply with necessary changes to the procedure to confirm the master's report:
(a) rule 54.08 (entering and serving report);
(b) rule 54.09 (deemed confirmation date);
(c) rule 54.10 (opposing confirmation).
71.10(5) The master's report is deemed to be confirmed as of the deemed confirmation date set out in the report unless before the deemed confirmation date, a motion to oppose confirmation is
(a) made to a judge; and
(b) filed and served on each party who appeared at the assessment hearing.
71.10(6) A judge hearing a motion to oppose confirmation may confirm the report in whole or in part or make such order as is just.
Confirmed report is court order
71.11 When the report is confirmed it becomes an order of the court.
CLIENT'S DOCUMENTS
71.12 Where
(a) the amount found to be due to the lawyer is paid; or
(b) nothing is found to be due to the lawyer;
the lawyer shall, if required in writing by the client, without delay, deliver to the client all documents in the lawyer's custody or control that belong to the client.
UNNECESSARY STEPS
71.13 The court may allow the costs of steps taken by the lawyer that
(a) were in fact unnecessary if the court is of the opinion that the steps were taken because, in the lawyer's judgment, reasonably exercised, the steps were conducive to the interest of the client; or
(b) were not calculated to advance the interest of the client if the steps were taken at the request of the client after being informed by the lawyer that they were unnecessary and not conducive to the client's interests.
APPLICATION OF RULE
71.14(1) This Rule applies to an application for an assessment of a lawyer's bill filed on or after September 1, 2007.
71.14(2) An application for an assessment commenced before September 1, 2007 and not finally disposed of before that date, shall be dealt with in accordance with Rule 71 as it read immediately before that day as though it had not been replaced.
APPOINTMENT OF COMMITTEES PASSING OF ACCOUNTS
Application must name respondent
72.01 On an application under section 71 of The Mental Health Act for an order appointing
(a) a committee of property (Form 72A); or
(b) a committee of both property and personal care (Form 72A.1);
the applicant shall name the person for whom the application is made as respondent.
M.R. 146/90; 13/93; 160/99
72.02 A committee who is required to provide a bond under section 77 of The Mental Health Act shall file a Committee Bond (Form 72B), an Affidavit of Execution of Bond (Form 72C) and, if the order is silent as to security or if the order requires a surety or sureties, an Affidavit of Justification by Surety or Sureties (Form 72D).
72.02.1 Repealed.
M.R. 13/93; 160/99
72.03 An initial inventory of the respondent's property, which the committee is required to file under subsection 85(1) of The Mental Health Act, shall take the form of an Affidavit of Initial Inventory (Form 72E) to which an Initial Inventory (Form 72F) is attached as Exhibit "A". The initial inventory is to include the property and the debts and liabilities of the incapable person as at the date the committee is appointed.
M.R. 146/90; 160/99
72.04(1) Where a committee elects or is required to bring in and pass his or her accounts of the committeeship to the court, the committee shall file a motion in the proceeding seeking an order approving the accounts of the committee and, where applicable,
(a) approving the compensation to be paid to the committee;
(b) approving the legal fees to be paid to the lawyer acting on behalf of the committee.
M.R. 146/90; 160/99
Supporting affidavit on passing of accounts
72.04(2) A committee filing a notice of motion under subrule (1) shall also file in support an affidavit of the committee stating
(a) the period of the committeeship to which the accounts relate;
(b) the names and last known places of residence of persons, including creditors of the respondent, who have an interest in the property or the affairs of the respondent;
(c) particulars of the accounts of the property as set out in
(i) an Opening Inventory (Form 72G),
(ii) a Statement of Monies Received (Form 72H),
(iii) a Statement of Monies Disbursed (Form 72I),
(iv) a Statement of Assets Sold or Realized and Assets Acquired (Form 72J), and
(v) a Reconciliation and Closing Inventory (Form 72K),
and attached to the affidavit as exhibits;
(d) where compensation to the committee is sought, particulars in respect of the amount of the compensation and the services for which compensation is sought;
(e) where approval of legal fees is sought, particulars of the legal services provided to the committee; and
(f) in the case of a final passing of accounts where the respondent dies during the committeeship, the date of death and proof of appointment of a personal representative.
M.R. 146/90; 160/99
Rule 37 applies to passing of accounts motion
72.04(3) Subject to this Rule, Rule 37 applies to a motion made under subrule (1).
M.R. 146/90
Service of passing of accounts motion
72.04(4) Subject to subrule (6), a committee filing a motion under subrule (1) shall serve the Notice of Motion and the supporting affidavit upon the persons who are served with the order appointing the committee, other than the public trustee, and upon the persons who provided consents under clause 72(1)(c) of The Mental Health Act.
M.R. 146/90; 13/93; 98/95; 160/99
Manner of service of passing of accounts motion
72.04(5) A committee may effect service under subrule (4) by sending a copy of the documents by regular lettermail in which case service is effective on the fifth day after the documents are mailed.
M.R. 146/90; 50/2001
Service on personal representative
72.04(6) For purposes of subrules (4) and (5), where the respondent dies before the motion is heard, the committee shall serve the personal representative of the deceased respondent, except that where the committee is the personal representative, the committee shall serve the persons who have an interest in the estate.
30 days after service before hearing
72.04(7) The court shall not hear a motion under subrule (1) on a day sooner than the 31st day following the last day on which service is effected under subrule (4) or (5).
M.R. 146/90
Report and Order: where accounts passed
72.04(8) Where the accounts of a committee are passed by the court, the judge or master hearing the motion shall issue a Report and Order (Form 72L) confirming approval of the accounts and, where applicable, ordering the payment of compensation and legal fees in such amounts as the judge or master considers appropriate in the circumstances.
M.R. 146/90
Report and Order: where accounts not passed
72.04(9) Where the accounts of a committee are not passed by the court, the judge or master hearing the motion shall issue a Report and Order (Form 72L) confirming that the accounts are not passed and ordering the committee to serve the Report and Order on such persons as the court indicates in the Report and Order, including the public trustee, and where a master hears the motion, the master shall send a copy of the Report and Order to the judge who referred the motion to the master.
M.R. 146/90
Legal fees: as set out in lawyer's account
72.05 Where a committee on a motion under subrule 72.04(1) seeks approval of the legal fees to be paid to a lawyer acting on behalf of the committee and files with the court a copy of the account of the lawyer, the court may, where the particulars of legal services filed in support of the motion justify payment of legal fees in the amount set out in the account of the lawyer, approve the legal fees in the amount set out in the account.
M.R. 146/90
PAYMENT INTO AND OUT OF COURT
PAYMENT INTO COURT
73.01(1) A person who seeks to pay money into court shall deliver to the registrar the payment together with a copy of any order, report, offer to settle or acceptance of offer under which the money is payable.
Cheques payable to minister of finance
73.01(2) Any cheque shall be made payable to the Minister of Finance.
Offer to settle or acceptance of offer
73.01(3) A party paying into court under an offer to settle or an acceptance of an offer shall forthwith serve a notice of payment into court (Form 73A) on every interested party, and there shall be no reference on the court file to the payment into court or to the notice.
MOTION FOR PAYMENT OUT OF COURT
73.02(1) An order for the payment of money out of court may be obtained on motion to a judge.
Affidavit in support of payment out of court
73.02(1.1) Subject to rule 73.03, a party seeking payment of money out of court shall file an affidavit stating whether the party has knowledge of another person with an interest in or claim to the money and, if so, particulars of that person's interest or claim.
73.02(2) A motion under subrule (1) shall be served on all interested parties.
PAYMENT OUT OF COURT
73.03(1) Money may be paid out of court only in accordance with an order or report, except as permitted under subrules (3), (4) and (5), upon production of a certificate of the registrar as to the state of the account from which the payment is to be made.
Payment out under order or report
73.03(2) A person who seeks payment of money out of court in accordance with an order or report shall file a copy of the order or report, unless already filed, and an affidavit stating,
(a) in the case of a report, that the report has been confirmed and the manner of confirmation; or
(b) in the case of an order, that the time prescribed for an appeal has expired and no appeal is pending.
73.03(3) Subject to subrule (5.1), where money has been paid into court under an offer to settle or an acceptance of offer or as security for costs and no stop order has been made under rule 73.04, the registrar may pay out a sum of money not exceeding the maximum small claims amount established under section 3 of The Court of Queen's Bench Small Claims Practices Act, provided the party seeking payment files,
(a) the consent of all parties or their lawyers; and
(b) an affidavit stating that all parties have consented to the payment and that neither the party who paid the money into court nor the party to whom it is to be paid is under disability and that no other person has an interest in the money;
and the payment shall then be made to the party in accordance with the consent.
M.R. 146/90; 43/2003
Payment out of security for costs (without consent)
73.03(4) Where money has been paid into court as security for costs, the registrar may, unless the court otherwise orders, pay out a sum of money not exceeding the maximum small claims amount established under section 3 of The Court of Queen's Bench Small Claims Practices Act to the party who paid it in, or to that party's lawyer of record, provided,
(a) no stop order has been made under rule 73.04; and
(b) an affidavit has been filed stating that,
(i) judgment has been obtained, and
(ii) the time prescribed for an appeal has expired and no appeal is pending, or
(iii) where an appeal has been filed, the appeal has been abandoned.
Payment out of garnishment proceeds
73.03(5) Subject to subrule (5.1), where, in relation to a notice of garnishment filed and issued under rule 60.08, money is paid into court by the garnishee named in the notice, the registrar may, unless the court otherwise orders, pay the money to the creditor or, where a lawyer is on record in the proceeding as acting for the creditor, to the lawyer on record, provided
(a) no stop order has been made under rule 73.04;
(b) an affidavit has been filed by the creditor stating
(i) the amount of the debt that is outstanding under the judgment given in the proceeding in favour of the creditor,
(ii) that the time prescribed for an appeal of the judgment is expired and that no appeal is pending,
(iii) where garnishment is sought by a general creditor, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6),
(iv) where garnishment is sought by a maintenance creditor under section 13.1 of The Garnishment Act, that an extra copy of the notice of garnishment was served on the garnishee to be provided to the debtor in accordance with subrule 60.08(6.2),
(v) where garnishment is sought to enforce a restitution order, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6.3), and
(vi) where garnishment is sought to enforce a forfeited recognizance order or an order imposing a fine, that the notice of garnishment was served on the debtor in accordance with subrule 60.08(6.4);
(c) the amount of money paid into court by the garnishee does not exceed the maximum small claims amount established under section 3 of The Court of Queen's Bench Small Claims Practices Act; and
(d) a period of at least 10 days has elapsed since the date of
(i) the payment into court by the garnishee, and
(ii) service of the notice of garnishment on the debtor.
M.R. 150/89; 146/90; 42/96; 32/2002
Payment out to trustee in bankruptcy
73.03(5.1) Where, before money that is paid into court on the account of a debtor is paid out by the registrar, a licensed trustee of the estate of the debtor acting under the Bankruptcy and Insolvency Act (Canada) requests in writing payment out of the money to the trustee and files an affidavit stating
(a) that the licensed trustee is a licensed trustee under the Bankruptcy and Insolvency Act (Canada);
(b) that the debtor, having filed an assignment with the official receiver under the Bankruptcy and Insolvency Act (Canada) or a receiving order having been made under the Bankruptcy and Insolvency Act (Canada) against the debtor, is a bankrupt; and
(c) that the trustee is acting under the Bankruptcy and Insolvency Act (Canada) as trustee of the property of the bankrupt debtor;
the registrar shall pay out the money to the licensed trustee.
M.R. 146/90; 14/94
73.03(6) Money paid out of court shall include accrued interest, if any, unless the order, report or consent provides otherwise.
Consent by insurer on behalf of party
73.03(7) Where the insurer of a party has paid money into court on behalf of the party and an affidavit setting out the relevant facts is filed, the consent required by clause (3)(b) may be given by the insurer on behalf of the party and, where the party is entitled to payment out, the money may be paid out to the insurer.
Minor attaining age of majority
73.03(8) Money in court to which a party is entitled under an order or report when the party attains the age of majority may be paid out to the party on filing an affidavit proving the identity of the party and that the party has attained the age of majority.
73.03(9) Unless otherwise ordered by the court, money may be paid out under this Rule to the lawyer for the party entitled thereto upon meeting the requirements of the subrule in question and filing the affidavit of the party stating that the party consents to payment of the money directly to the lawyer rather than to the party, but such consent is not required for payment to a lawyer of record under subrules (4) and (5).
Payment to personal representative
73.03(10) Where money or securities in court are to be paid out or transferred to a person named in an order or report who has died, the money or securities may be paid or transferred to the deceased person's personal representative on proof to the satisfaction of the registrar of the person's death and of the personal representative's authority.
STOP ORDER
Motion or application for stop order
73.04(1) On motion without notice in a proceeding or, where there is no proceeding pending, on application without notice by a person who claims to be entitled to money or securities held or to be held in the future by the court for the benefit of another person, the court may make a stop order (Form 73B) directing that the money or securities shall not be dealt with except on notice to the moving party or applicant.
Undertaking to compensate for damages
73.04(2) On a motion or application for a stop order, the moving party or applicant shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to any person for which the moving party or applicant ought to compensate the person.
73.04(3) Where an order has been made under subrule (1), the court may, on motion by any party including the person who obtained the order, with notice to all interested parties,
(a) order payment out;
(b) adjourn hearing of the motion pending disposition of a proceeding in which a claim under subrule (1) has been made; or
(c) make such other order as is just.
SURROGATE PRACTICE NON-CONTENTIOUS PROCEEDINGS
REQUESTS FOR PROBATE OR ADMINISTRATION
74.01 Proceedings for probate or administration shall be commenced by a form of request.
PROBATE AND ADMINISTRATION WITH THE WILL ANNEXED
74.02(1) A request for probate shall be in Form 74A together with supporting material in Forms 74B and 74C.
Request for administration with will annexed
74.02(2) A request for administration with the will annexed shall be in Form 74D together with supporting material in Forms 74E and 74B.
Requirement for filing original will
74.02(2.1) If the person requesting probate or administration with the will annexed files a copy of the will as an exhibit to his or her affidavit, the original will shall be filed along with the request and supporting material.
74.02(3) On a request for probate or administration with the will annexed the execution of the will shall be proved by affidavit of one of the subscribing witnesses in Form 74F or otherwise as directed by the court.
Proof to include reading of will
74.02(4) Where the testator or testatrix executed the will making his or her mark, or where the will was signed for the testator or testatrix by some other person in his or her presence and by his or her direction, the proof shall show that, before its execution, the will was read over to him or her and that he or she had knowledge of its contents and appeared to understand them.
74.02(5) No affidavit of execution of a will or codicil, and no affidavit of plight, shall be sworn by a witness to the will or codicil before another witness to the will or codicil.
Will to be identified and marked
74.02(6) The will or a copy of the will shall be identified by the signature of the person requesting probate or administration with the will annexed and shall also be marked as an exhibit to his or her affidavit and to the affidavit proving due execution.
Identification of pages of will
74.02(7) Where a will is written upon more than one piece or sheet of paper, unless each sheet is identified by the signatures or initials of the testator or testatrix and subscribing witnesses, the court may require such identification as it deems necessary.
Evidence of names, etc. of beneficiaries, next of kin, etc.
74.02(8) The court may require evidence of the names, addresses, ages, and relationship to the testator or testatrix of all persons mentioned in the will, and of all next of kin or heirs-at-law of the testator or testatrix; and may order that any or all of these persons be served with a copy of the will and copies of any statutes or parts of statutes that might, in the opinion of the court, affect the interests of those persons.
Interlineations, alterations, etc.
74.02(9) Interlineations, alterations, erasures, or obliterations in a will that have not been duly attested or initialled by the testator or testatrix and the subscribing witnesses shall not be regarded or included in the probate, unless it is shown by affidavit in Form 74G that they existed in the will before its execution or that they have been rendered valid by republication of the will or by the subsequent execution of a codicil.
74.02(10) Where words in a will that might have been of importance have been erased or obliterated or where the appearance of the will indicates an attempted cancellation by burning, tearing, or the like, or where any suspicious circumstances exist, probate shall not be granted until all such matters have been explained to the satisfaction of a judge.
74.02(11) Where a will is not dated, or is dated imperfectly, one of the attesting witnesses shall furnish evidence of the date of execution; or where such evidence cannot be obtained, evidence shall be furnished of the execution between two definite dates, and that a search has been made and no will of presumably later date has been found.
74.02(12) A judge may require that proof shall be made in solemn form.
74.02(13) Where probate or letters of administration with the will annexed is sought in the case of a will which has been lost or destroyed, the proof shall be made in solemn form.
Where testator under 18 years of age
74.02(14) Where the deceased died testate and was under the age of 18 years at the time of execution of the will it shall be shown that he or she was a person to whom subsection 8(1) of The Wills Act applies.
Order where failure to bring in will for probate
74.02(15) Where an executor fails to bring in a will for probate, any interested person, including a creditor, may apply without notice to a judge for an order in Form 74H to issue calling upon the executor to accept or refuse probate and execution of the will, or to show cause why letters of administration with the will annexed should not be granted to the applicant or to such other person, having prior right thereto, as may be willing to accept it.
No order until 14 days after death
74.02(16) No order under subrule (15) shall issue until 14 days after the death of the testator or testatrix, unless a judge otherwise directs.
Order for delivery of a testamentary paper
74.02(17) Any interested person may apply without notice to a judge for an order in Form 74I that a person alleged to have a testamentary paper in his or her possession, power, or control either deliver the paper to the registrar or file an affidavit that he or she does not have the paper in his or her possession, power, or control, and setting forth what knowledge he or she may have respecting the paper.
Probate not to issue for seven days after death
74.02(18) No probate or letters of administration with the will annexed shall issue until seven days after the death of the testator or testatrix unless a judge otherwise directs.
74.02(19) All grants of probate or administration with the will annexed shall be in Forms 74J or 74K, as the case requires, signed by the registrar and issued under the seal of the court; and any copy of a will, forming part of, or attached to, the grant, shall be authenticated by the signature of the registrar and the duplicate of the grant and a copy of the will shall be filed with the original request.
Void gift to beneficiary endorsed on will
74.02(20) Where, by reason of the fact that a beneficiary, or the spouse or common-law partner as defined in subsection 12(1) of The Wills Act of a beneficiary, witnesses a will, the provisions made therein for that beneficiary are void, that fact shall be endorsed on the will by the registrar; and the endorsement shall appear on the copy of the will attached to the grant.
Endorsement under subsection 12(3), Wills Act
74.02(21) Where the court has made an order under subsection 12(3) of The Wills Act to the effect that a beneficial devise, bequest or other disposition or appointment made in a will to a person who witnessed the will or a spouse or common-law partner as defined in subsection 12(1) of that Act of a person who witnessed the will is valid, the registrar shall endorse a note of the order on the will and the endorsement shall appear on the copy of the will attached to the grant.
DOUBLE PROBATE
74.03(1) Where all of the executors named in a will have not requested probate, and the right has been reserved to one or more of them to request probate at some future time, or where an alternative executor is called upon to complete the administration, and, in either case, it is desired to have the appointment of the executor or executors confirmed by the court, the grant for which the request is made shall be termed "double probate".
74.03(2) The request for double probate shall state the fact of the original probate having been granted to the original applicant and the reason for the second request.
Original will or copy marked as exhibit
74.03(3) The will or copy thereof contained in the original grant shall be marked as an exhibit to the affidavit of the person making the request and shall be identified by his or her signature.
Original letters probate surrendered
74.03(4) The original letters probate shall be surrendered with the request.
ADMINISTRATION
74.04(1) A request for administration shall be in Form 74L together with supporting material in Forms 74M and 74B.
Manitoba residents with an equal or superior right to renounce
74.04(2) Subject to subrule (3), upon a request for administration or of administration with the will annexed, all persons habitually resident in Manitoba with an equal or superior right to the administration shall either nominate the person making the request in Form 74N or renounce in Forms 74O or 74P.
Order to persons having prior or equal right to administration
74.04(3) Where a person having an equal or superior right to administration has neither nominated nor renounced under subrule (2), any interested person, including a creditor, may apply to have an order in Form 74Q, issued calling upon those having prior or equal right to accept or refuse administration; and, in default of a request being made by them, the interested person may file a request.
Grant not to issue for 14 days
74.04(4) No letters of administration shall issue until after 14 days from the death of the intestate, unless a judge otherwise directs.
74.04(5) A grant of administration shall be in Form 74R, signed by the registrar and issued under the seal of the court.
ADMINISTRATION OF ESTATE UNADMINISTERED
74.05(1) Upon the death of the administrator of an estate leaving part of the assets unadministered, a request may be made for a grant of letters of administration of estate unadministered to complete the administration of the estate.
74.05(2) The request for administration of estate unadministered shall be similar in form to the original request for administration, and shall recite the particulars of the first grant and that the administrator has died leaving part of the assets of the estate unadministered, and the grounds on which the claim to the grant is being made.
74.05(3) Where the executor of an estate has died intestate and there are no other executors to carry on the administration of the estate, or where the administrator with the will annexed of an estate has died leaving part of the estate unadministered, the beneficiaries under the will may nominate any person to request a grant of administration of estate unadministered with the will annexed, to complete the administration of the estate.
74.05(4) The request shall be similar in form to the original request, and shall recite the facts of the death of the executor or administrator, the names of all the beneficiaries who still have an interest in the estate, and the grounds on which the claim to the grant is being made.
74.05(5) The inventory, upon a request for administration of estate unadministered, shall contain only the unadministered property, with values as of the date of request.
Insertion of "of estate unadministered"
74.05(6) The words "of estate unadministered" shall be inserted after the words "administrator" wherever it occurs in a request or grant under subrules (1) and (3).
74.05(7) The original grant shall be surrendered with a request for administration under subrules (1) or (3).
RESEALING AND ANCILLARY GRANTS
Request for resealing of grant of probate
74.06(1) A request for resealing of a foreign grant of probate shall be in Form 74R.1 together with supporting material in Forms 74R.2 and 74R.3.
Request for resealing of administration with will annexed
74.06(1.1) A request for resealing of a foreign grant of administration with will annexed shall be in Form 74R.4 together with supporting material in Forms 74R.2 and 74R.5.
Request for resealing of administration
74.06(1.2) A request for resealing of a foreign grant of administration shall be in Form 74R.6 together with supporting material in Forms 74R.2 and 74R.7.
74.06(2) The evidence is the same as that required upon a request for probate or administration, except that only assets of the deceased in Manitoba need be shown, and the grant sought to be resealed may be accepted as proof
(a) of death;
(b) in cases of testacy, of the execution of the will and that it is the last will of the deceased; and
(c) in cases of intestacy, that the deceased left no will.
74.06(3) Where there is immovable property in Manitoba, it shall be shown that the will was executed in manner and form sufficient to pass immovable property in Manitoba.
REQUEST FOR INFORMATION
Request for additional information
74.06.1(1) Any interested person, including a creditor, who requires information about
(a) the assets of a deceased; or
(b) a specific asset of the deceased;
beyond what is disclosed in the inventory and valuation of the property of the deceased (Form 74B or 74R.2) may provide a written request to the executor or administrator, setting out the interest of the person and the information requested.
74.06.1(2) Within 21 days after receiving the request, the executor or administrator shall provide the person making the request with the requested information in writing or a statement in writing refusing to provide the requested information and the reasons for the refusal.
74.06.1(3) The court may, on motion, make an order requiring the executor or administrator to provide the person making the request with the requested information within a specified time, unless the court is satisfied that
(a) the executor or administrator has provided a sufficiently detailed inventory of the assets of the deceased or has disclosed sufficient information about the specified asset of the deceased; or
(b) the request is frivolous, vexatious or made for an improper purpose.
NOTICE OF UNDISCLOSED ASSET
74.06.2(1) Any interested person, including a creditor, who believes that the inventory and valuation of the property of the deceased (Form 74B or 74R.2) fails to disclose an asset belonging to the deceased may provide a written notice to the executor or administrator that
(a) provides particulars of the asset; and
(b) requests the executor or administrator to take control of the asset and prepare a new inventory and valuation of the property of the deceased that includes the asset.
74.06.2(2) Within 21 days after receiving the notice, the executor or administrator shall provide the person giving the notice with a written response setting out the position of the executor or administrator with respect to the asset in question. The response must contain one of the following statements:
(a) the asset passed by operation of law and does not form part of the deceased's estate;
(b) the asset cannot be located;
(c) the asset did not belong to the deceased at the time of his or her death;
(d) the asset was included in the valuation of the deceased's property but was not specifically mentioned in the inventory;
(e) the executor or administrator was not aware of the asset at the time the inventory was prepared but has now located the asset and undertakes to provide a new inventory and valuation that includes the asset in question.
74.06.2(3) If the executor or administrator fails to respond within 21 days after receiving the notice, the court may, on motion, order the executor or administrator to respond within a specified time.
VALUATION OF PROPERTY
74.07(1) The value of property for probate or administration purposes is the fair market value of the property less the amount of any incumbrances.
74.07(2) Where the court has reason to believe that the property of the deceased exceeds in value the sum stated in a request, it may inquire into the matter in a summary way.
74.08 Where two or more requests for a grant are made a judge shall determine on application which shall prevail.
DISTINGUISHING LETTERS IN A NAME
74.09 Where the name of a person referred to in a request or supporting material under this rule contains a distinguishing letter, not being the first letter of a given name, that fact shall be shown in the request and supporting material.
74.10 The court may require that in appropriate circumstances a party be provided with independent counsel, and that any expenses so incurred may be paid out of the estate.
SECURITY
74.11(1) Save as otherwise provided by statute, the security to be given by administrators and foreign executors shall be by bond of a guarantee company or by personal bond and the forms to be used are 74S, 74T and 74U.
Personal attendance of sureties
74.11(2) The court may require the personal attendance of the sureties before it for examination.
74.11(3) The bond shall be kept by the registrar in a separate file as a record of the court.
Sureties be habitual residents
74.11(4) Personal sureties shall be habitual residents of Manitoba, and shall justify to an amount or amounts that, in the aggregate, equal the amount of the penalty in the bond.
74.11(5) Save as otherwise provided by statute, at least two sureties shall be required, unless the court otherwise directs.
Registrar or lawyer not sureties
74.11(6) Neither a registrar nor the lawyer of the person making a request shall become surety to any such bond.
Notice of amount of surety bond
74.11(7) Any person interested in an estate, including a creditor, may file a memorandum requiring notice to be given to that person of the amount of the bond; and that person shall then be served with an appointment to inquire into its sufficiency.
74.11(8) The court may, if it disallows the bond, permit a new bond to be filed; but, shall not allow the grant to issue unless it is satisfied that adequate security has been furnished.
74.11(9) Where a grant has already issued, and it is shown to the satisfaction of the court that the sureties are not sufficient, the court may direct the administrator or foreign executor to furnish further security and, upon default, may revoke or suspend the operation of the grant.
PASSING OF ACCOUNTS AND REMUNERATION
74.12(1) An application to the court for passing of accounts and remuneration of executors and administrators shall be by notice of application verified by affidavit in Forms 74V and 74W.
74.12(2) Upon filing of the notice of application and affidavit, the court may issue an appointment in Form 74X.
74.12(3) The appointment together with true copies of the notice of application and the affidavit and a notice to beneficiaries in Form 74Y shall be served upon those interested in the estate either personally or by an alternative to personal service.
74.12(4) The accounts shall contain a true and perfect inventory of the whole property in question, and shall include
(a) an inventory and valuation of the original estate, showing how each asset was dealt with, and the present value of, or amount realized from, each asset;
(b) an account of all money received, other than from the realization of original assets or from investments made by the trustee;
(c) an account of all disbursements, other than for investments made by the trustee;
(d) an account of all payments or transfers to beneficiaries of the estate; and
(e) an account, in debit and credit form, showing the totals of the foregoing accounts, all assets remaining on hand and the amount of net gain or loss realized upon investments made by the trustee.
Where income and capital separate
74.12(5) Where, by the will or an instrument creating any trust estate, income and capital are dealt with separately, the accounts shall be divided so as to show receipts, disbursements and distributions, in respect of income and capital, separately.
Book values on interim accounts
74.12(6) Upon an interim passing of accounts, book values, rather than actual values, may be shown.
Compensation or Allowance to Executor, etc.
74.12(7) Upon a passing of accounts, the court may fix the compensation or allowance to be made to the executor, administrator, or trustee under a will for the care, pains, trouble and time expended in and about the estate or trust.
74.12(8) The accounts may be passed before, and the remuneration may be fixed by, a master.
74.12(9) An order on passing accounts shall be in Form 74Z.
WILLS DEPOSITED FOR SAFEKEEPING
Sealed envelope, securely sealed
74.13(1) Every will deposited for safekeeping shall be enclosed in an envelope, securely sealed, upon which shall be endorsed the name and address of the testator or testatrix and of the executor or executors; and the registrar shall mark thereon a memorandum showing the date of deposit, and from whom it was received, and shall forthwith forward those particulars to the registrar in Winnipeg.
Affidavit with will in safekeeping
74.13(2) Where a will is deposited for safekeeping, by a person other than the testator or testatrix, there shall be deposited with it his or her affidavit stating that the will is in the same plight, state, and condition as when received by him or her from the testator or testatrix.
No inspection or removal of will in safekeeping
74.13(3) A will deposited for safekeeping shall not, during the lifetime of the testator or testatrix, be inspected or removed from the office of the registrar except by the testator or testatrix in person, or by the order of the court, on application by a lawyer acting under the written authority of the testator or testatrix; and the authority shall be verified by the affidavit of the lawyer.
Delivery of the will after death
74.13(4) After the death of the testator or testatrix, the will shall be delivered to the executor upon his or her personal application, or to such other person as the court may direct; and the registrar shall take a receipt for the will, and retain a copy of it, compared and certified by him or her.
FEES AND COSTS
74.14(1) Fees and costs in estate matters shall be allowed in accordance with this rule.
74.14(2) In this rule the words "fees" and "costs"
(a) do not include proper disbursements, which shall be allowed to a lawyer in addition; and
(b) do not include remuneration to which a lawyer may be entitled as a personal representative.
74.14(3) Aggregate value of the estate is the total value of all assets of the estate as shown in the request for probate or administration and any amendment thereto but does not include gifts made inter vivos, property held in joint tenancy, insurance, annuities and pensions not payable to the estate, or the value of any benefits under "The Canada Pension Plan".
74.14(4) Where the personal representative is not a lawyer, a trust company or the public trustee, the fee payable to the lawyer retained by the personal representative is:
On the first $10,000. or portion thereof of the aggregate value of the estate 3%
On the next $90,000. or portion thereof 2%
On the next $200,000. or portion thereof 1%
On the excess over $300,000. additional fees may be charged, and the amount is to be determined by the time spent, the complexity of the matter, the results achieved and the value of the estate.
74.14(5) Where the personal representative is a lawyer, a trust company, or the public trustee, the fee payable to the laywer retained by the personal representative is 40% of the fee provided under subrule (4).
Review by court or assessment officer
74.14(6) The fees for which provision is made in this rule are subject to review by the court on a passing of accounts or pursuant to subrule (7).
Notice of appointment for assessment of costs
74.14(7) A personal representative, a beneficiary or a lawyer may obtain a notice of appointment for assessment of costs to review or fix the fee payable to the lawyer retained by the personal representative and the provisions of Rule 58 (Assessment of Costs) shall apply with necessary changes except that the notice of appointment shall be served upon all interested persons at least 30 days before the date fixed for the assessment.
Service of lawyer's bill of costs
74.14(8) The lawyer retained by the personal representative shall, at least 14 days before the date of the hearing, file and serve upon all interested persons
(a) unless the court otherwise orders, an itemized bill of costs; and
(b) an affidavit setting out that he or she complied with subrule (14), the fees payable under subrule (4), the fees desired, and, if they exceed those payable under subrule (4), the reasons why larger fees should be paid.
Hearing to fix or review lawyer's fees
74.14(9) On the hearing to fix or review the fees payable to the lawyer regard shall be had to
(a) the nature of the estate assets relative to the value of the estate;
(b) the amount and nature of the services performed by the lawyer; and
(c) other matters considered relevant by the court.
74.14(10) For the purposes of subrules (7) and (8), the expression "interested persons" includes the personal representative, the lawyer retained by the personal representative and any beneficiary whose interest in the estate is affected by the lawyer's fee.
74.14(11) In addition to the fees provided in subrule (4), a lawyer is entitled to receive payment for the following:
(a) appearances in court as allowed by the presiding judge;
(b) services with respect to a first passing of accounts of a personal representative where the lawyer retained by the personal representative has maintained the accounts of the estate and has prepared same for passing, based upon the total amount of assets and receipts shown on Schedules "A" and "B" to the application to pass accounts as follows:
(i) on the first $10,000. or portion
thereof (minimum $40.) 3/4 of 1%,
(ii) on the next $190,000. or
portion thereof 1/6 of 1%,
(iii) on the excess over $200,000.
(subject to the discretion of the
court on passing of accounts) 1/10 of 1%;
(c) services with respect to a first passing of accounts, where the personal representative has maintained the accounts of the estate and prepared same for passing, or for services with respect to any subsequent passing of accounts in such amount as may be allowed by the court on the passing of accounts;
(d) acting on the sale of an estate asset;
(e) finding a purchaser of an estate asset.
Beneficiaries may consent to fees
74.14(12) Where all of the beneficiaries, whose respective interests in an estate are affected by the lawyer's fees
(a) are adults;
(b) have consented to an agreement between the lawyer and the personal representative with respect to the fees; and
(c) have been served with copies of Form 74AA;
the lawyer is entitled to the agreed fee subject to review by the court.
Lawyer not to accept excess fees
74.14(13) The lawyer retained by the personal representative shall not accept payment for services to the personal representative or to the estate, in excess of such fees as are provided in this rule.
Form 74AA to be sent to personal representative and residuary beneficiaries
74.14(14) The lawyer retained by a personal representative shall, within 60 days after letters probate or letters of administration have been granted, serve a true copy of Form 74AA either personally or by an alternative to personal service on the personal representative and each residuary beneficiary.
Fees of lawyers acting for other than personal representative
74.14(15) A lawyer for any person other than the lawyer for the personal representative, properly attending on an assessment of the costs of the lawyer acting for the personal representative, or on a passing of a personal representative's accounts, may be allowed a fee in the discretion of the court.
74.14(16) In contentious matters a lawyer shall be allowed such fees as the presiding judge deems adequate.
74.14(17) The court may direct payment of any costs, including proper disbursements, from the estate generally or by, or from funds of the estate belonging to, any legatee, heir or person interested therein.
SUMMARY ADMINISTRATION OF SMALL ESTATES
74.15(1) A request and order under section 47 of The Court of Queen's Bench Surrogate Practice Act shall be in Form 74BB and 74CC respectively.
74.15(2) Unless a judge otherwise directs, the person who is ordered to administer the estate of a deceased under section 47 of The Court of Queen's Bench Surrogate Practice Act shall, within 30 days after the order is made, serve a copy of the order personally or by regular lettermail,
(a) if the deceased had a will, on
(i) all beneficiaries of the deceased, and
(ii) if the person ordered to administer the estate is not the executor named in the will, the executor; or
(b) if the deceased died without a will, all next of kin of the deceased.
GENERAL
Particulars of grants to be sent to the registrar in Winnipeg
74.16(1) The list of grants of probate and administration and of revocation thereof required under The Court of Queen's Bench Surrogate Practice Act to be sent by deputy registrars to the registrar in Winnipeg shall contain, in each case, the full name, habitual residence, and occupation of the deceased, the time of death, the date of the grant, the name, habitual residence, and occupation of the executor or administrator, the nature of the grant, and the amount of the estate as given in the request.
74.16(2) The registrar in Winnipeg shall extract, from the lists furnished, particulars of each grant, and shall enter a note thereof, placing it in its alphabetical order under the first letter of the surname of the testator or intestate, in the book kept for that purpose; and the registrar shall also note in that book every revocation; and all lists, copies of wills, returns or revocations, and papers received by the registrar shall be filed and endorsed in like manner as is provided with respect to requests for grant.
SURROGATE PRACTICE CONTENTIOUS PROCEEDINGS
75.01 This rule applies to surrogate proceedings in solemn form.
CAVEATS
75.02(1) A person intending to oppose the issue of a grant of probate or administration may file a caveat in Form 75A in any judicial centre at any time before the grant is issued.
75.02(2) Notwithstanding the filing of a caveat, a request may be made for a grant, but no further proceedings shall be taken on the application without notice to the caveator until the caveat has expired or has been removed.
75.02(3) Where a request for probate or administration has been filed, the registrar shall serve a notice upon the caveator in Form 75B requiring the caveator to make a probate application pursuant to the caveat within 30 days after service of the notice, failing which the registrar shall cancel the caveat.
Court may vacate vexatious caveat
75.02(4) Where a caveat is filed vexatiously, the court may on application order it to be vacated and may award costs against the caveator.
75.02(5) Upon an application to vacate a caveat, the court may give all directions necessary for a trial.
Automatically expires after 12 months
75.02(6) A caveat remains in force for 12 months and then expires and is of no effect, but a new caveat may be filed from time to time.
PROBATE APPLICATIONS
75.03(1) In this Rule, "probate application" means an application
(a) for the grant of probate of the will of, or letters of administration of the estate of, a deceased person; or
(b) for the revocation of a grant; or
(c) for an order pronouncing for or against the validity of an alleged testamentary paper;
but does not include a proceeding governed by rule 74.
75.03(2) A probate application shall be commenced by notice of application.
75.03(3) Each person who is or claims to be entitled to administer the estate under an unrevoked grant of probate or letters of administration, shall be made a party to any application for revocation of the grant.
75.03(4) In an application where the validity of a testamentary paper is questioned, all persons having an interest in upholding or disputing its validity, shall be joined as parties.
75.03(5) Upon the hearing of the application the court may,
(a) add or remove parties;
(b) give directions in Form 75D; or
(c) give such directions as the court deems fit.
Grant to be returned to registrar pending application for revocation
75.03(6) In an application for the revocation of a grant of probate or administration,
(a) if the application is made by a person to whom the grant was made, the person shall deliver the grant to the registrar within seven days after the application has been made; or
(b) where a party to the application has possession or control of the grant, the party shall deliver the grant to the registrar within seven days after the party has been served with the notice of application, and
(c) the person to whom the grant was issued shall not act under it without leave of a judge.
75.03(7) Where a person fails to comply with subrule (6), the registrar may issue an order in Form 75C calling on the person to deliver the grant to the registrar, and a person against whom the order has been issued shall not take any step in the application without leave of the court until the order has been complied with.
Revocation to be noted on the grant
75.03(8) Where a grant of probate or administration has been revoked after the hearing of a probate application, the registrar shall endorse on the grant the following: "Revoked by Order dated the __________ day of________________, 198___".
SMALL CLAIMS ACTIONS
76.01 This rule applies to actions under The Court of Queen's Bench Small Claims Practices Act.
M.R. 150/89
76.02(1) Subject to subrule (2), words and expressions used in this rule have the same meaning as they have in The Court of Queen's Bench Small Claims Practices Act.
M.R. 150/89
76.02(2) In this rule,
"Act" means The Court of Queen's Bench Small Claims Practices Act; (« Loi »)
"appeal" means an appeal under subsection 12(2) or (3) of the Act; (« appel ») and
"claim" means a claim that is made under the Act and to which the Act applies. (« demande »)
M.R. 150/89; 240/91
Commencement of claim: Form 76A
76.03(1) For purposes of subsection 6(1) of the Act, a person making a claim shall file a Small Claim in the form prescribed as Form 76A and shall serve a copy of the Small Claim, along with a blank copy of a Notice of Intention to Appear (Form 76D), on each defendant.
M.R. 150/89
Proof of service on defendant: Form 76B
76.03(2) After service of a Small Claim upon a defendant, the plaintiff shall, for purposes of subsection 6(3) of the Act, file proof of service upon the defendant by filing a Declaration of Service in the form prescribed as Form 76B.
M.R. 150/89
Order for extension of time: Form 76C
76.03(3) An order by the court under subsection 6(3) of the Act granting an extension of time for service upon a defendant shall be in the form prescribed as Form 76C.
M.R. 150/89
Filing by defendant of Form 76D
76.03(4) Where a defendant intends to dispute a claim or to request time for payment of a claim, the defendant shall file in the office of the court, no later than the seventh day before the date fixed for hearing the claim, a Notice of Intention to Appear in the form prescribed as Form 76D.
M.R. 150/89
Defendant to be heard despite non-filing
76.03(5) Notwithstanding the failure of a defendant to file a Notice of Intention to Appear as required under subrule (4), where the defendant appears at the hearing of the claim, the defendant is entitled to be heard.
M.R. 150/89
76.03(6) Where a defendant files a counterclaim (Form 76E), the defendant shall immediately serve the counterclaim on the plaintiff against whom the counterclaim is made and file a Declaration of Service (Form 76B) in the office of the court confirming service of the counterclaim.
M.R. 150/89; 240/91
76.03.1 Rule 53.04, including Form 53A, applies with necessary changes, if a party requires the attendance of a person in Manitoba as a witness at a hearing under the Act.
76.04 The hearing of a claim under subsection 9(1) of the Act shall be held
(a) in the case of a hearing before a court officer, at the administrative centre of the court that is nearest to where the defendant resides or carries on business or to where the cause of action arose;
(b) in the case of a hearing before a judge, at the judicial centre of the court that is nearest to where the defendant resides or carries on business or to where the cause of action arose; or
(c) at another location on which the parties and the court officer or judge agree.
M.R. 150/89; 146/90
Evidence other than by personal attendance
76.04.1(1) The court officer or judge hearing a claim may allow a party or witness to attend a hearing and give evidence by telephone, video conference or other means of communication.
Preliminary approval by registrar
76.04.1(2) For the purpose of subrule (1) a party may contact the registrar before the hearing, with his or her request. The registrar may grant preliminary approval to a party or witness to attend and give evidence as provided in subrule (1), subject to confirmation by the court officer or judge who is to hear the claim.
Default decision: Form 76F
76.05(1) For purposes of subsection 23(1) of the Act, a Certificate of Decision on Default shall be given in the form prescribed as Form 76F.
M.R. 150/89
Decision at hearing: Form 76G
76.05(2) After the hearing of a claim or a counterclaim, the decision of the court officer or judge shall be certified by issuance of a Certificate of Decision at Hearing in the form prescribed as Form 76G.
M.R. 150/89
Security for costs by foreign claimants
76.06 For the purposes of section 18 of the Act, the amount required as security for costs shall be $150.
M.R. 150/89; 240/91
76.07 A bench warrant to enforce a subpoena under subsection 10(2) of the Act shall not be issued unless
(a) an affidavit of personal service of the subpoena is filed indicating service at least three days before the date of the hearing; and
(b) a judge orders the issuance of the warrant.
M.R. 150/89; 240/91
Notice of Appeal where party appears at hearing: Form 76H
76.08 For the purposes of subsection 12(4) of the Act, an appellant to whom subsection 12(2) applies, shall file in duplicate at the administrative centre or judicial centre of the court where the claim was heard, a Notice of Appeal in the form prescribed in Form 76H.
M.R. 150/89; 240/91
Leave to Appeal and Notice of Appeal where party does not appear: Form 76I
76.09(1) For the purposes of subsection 12(4) of the Act, an appellant to whom subsection 12(3) of the Act applies, shall file in duplicate at the administrative centre or judicial centre of the court where the claim was heard, an Application for Leave to Appeal and Notice of Appeal in the form prescribed as Form 76I.
M.R. 240/91
Security for costs on appeal by party not appearing at hearing
76.09(2) Unless the registrar otherwise orders, an appellant under subrule (1) shall when filing an Application for Leave to Appeal and Notice of Appeal pay into court as security for costs the amount of $150.
M.R. 240/91
Fixing date for appeal hearing
76.10(1) Upon the filing of a Notice of Appeal, the registrar shall fix a date for the hearing of the appeal and shall issue an Appointment on Form 76H.
M.R. 240/91
Fixing date for leave application
76.10(2) Upon the filing of an Application for Leave to Appeal and Notice of Appeal, the registrar shall fix a date for the hearing of the application for leave to appeal and shall issue an Appointment on Form 76I.
M.R. 240/91
76.11(1) Unless a judge otherwise orders, the appellant shall, not later than 20 days after the filing of a Notice of Appeal or Application for Leave to Appeal and Notice of Appeal
(a) serve a true copy of the Notice of Appeal or Application for Leave to Appeal and Notice of Appeal upon the respondent; and
(b) file proof of service in Form 76B.
M.R. 240/91
76.11(2) If an appellant is unable to effect service under subrule (1), the appellant may request that the registrar arrange for service on behalf of the appellant with the costs of such service to be paid by the appellant.
M.R. 240/91
Limitation on time for service
76.11(3) Unless a judge otherwise orders, service under subrule (1) or (2) must be completed not less than 10 days before the appointed date for the hearing of the appeal or application for leave.
M.R. 240/91
Date for hearing appeal where leave granted
76.12 Unless a judge otherwise orders, where leave to appeal is granted, the judge granting leave shall fix a time for the hearing of the appeal which time shall be later on that day.
M.R. 240/91
76.12.1 An appellant appealing a decision made by a court officer may not discontinue the appeal prior to the time scheduled for the hearing of the appeal unless
(a) the appellant files a Discontinuance of Appeal in the form prescribed as Form 76I.1; and
(b) all parties to the appeal consent in writing to the discontinuance.
M.R. 14/94
76.13 The hearing of an appeal or the application for leave to appeal shall be held at the judicial centre of the court nearest to the location where the claim was heard or at another location on which the parties and the court agree.
M.R. 240/91
Evidence other than by personal attendance
76.13.1 Rule 76.04.1 applies with necessary changes to the hearing of an appeal.
Certificate of Decision issued: Form 76J
76.14 Where a decision is given on an application for leave to appeal or on an appeal, the registrar shall within seven days of the decision,
(a) issue a Certificate of Decision in the form prescribed as Form 76J; and
(b) send a true copy of the Certificate of Decision by ordinary mail to the parties.
M.R. 240/91
TABLE OF FORMS
Form Title of Form
76A Small Claim
76B Declaration of Service
76C Order Extending Time
76D Notice of Intention to Appear
76E Counterclaim
76F Certificate of Decision on Default
76G Certificate of Decision at Hearing
76H Notice of Appeal
76I Application for Leave to Appeal and Notice of Appeal
76I.1Discontinuance of Appeal
76J Certificate of Decision (Leave to Appeal or Appeal)
M.R. 14/94
PROCEEDINGS UNDER THE EXPROPRIATION ACT (under sec. 38, The Expropriation Act, C.C.S.M. c. E190)
77.01 In this Rule,
"Act" means The Expropriation Act; (« Loi »)
"authority" has the meaning defined in the Act; (« autorité compétente »)
"expert witness" includes any person, other than the owner, giving opinion evidence relating to due compensation payable for land expropriated or for land injuriously affected; (« témoin expert »)
"land" has the meaning defined in the Act; (« bien-fonds »)
"owner" has the meaning defined in the Act. (« propriétaire »)
77.02 The Rules apply to proceedings under The Expropriation Act, except where this Rule expressly or by implication provides otherwise.
COMMENCEMENT OF PROCEEDINGS
77.03(1) Proceedings for the determination and payment of the due compensation payable for land expropriated or for land injuriously affected as provided by the Act shall be commenced by notice of application filed by an owner or by an authority.
77.03(2) A Notice of application filed by an owner shall be in Form 77A and a notice of application filed by the authority shall be in Form 77B.
SERVICE
77.04(1) A notice of application filed by an owner shall be served on the authority and on all other owners of the land.
77.04(2) A notice of application filed by an authority shall be served on all owners of the land.
REPLY AND PARTICULARS OF CLAIM
Reply by authority (Form 77C)
77.05(1) Where there is only one owner, an authority that has been served with a notice of application shall, within 14 days, file and serve on the owner a reply in Form 77C.
77.05(2) Where an owner has been served with a notice of application by an authority or by another owner, the owner so served shall, within 14 days, file and serve on the authority and on all other owners particulars of claim in Form 77D.
Reply by authority (Form 77E)
77.05(3) Where an authority has been served with particulars of claim, it shall, within 14 days from the day on which the particulars of claim was served on it, or if more than one such particulars of claim was served, the latest day on which any such particulars of claim was served on it, file and serve on all owners a reply in Form 77E.
77.06 A notice for discovery of documents may be given by any party after the proceedings are at issue.
77.07 Examination for discovery may take place or interrogatories be delivered only by leave of the court for which special grounds must be shown.
FACTS, DOCUMENTS, LAW
77.08(1) Every fact or document upon which a party intends to rely and every point of law which is not in issue shall be admitted in a statement of agreed facts and law to be filed before applying for an appointment for trial.
77.08(2) Every fact, document or point of law which is in issue shall be included in a statement of issues of fact and law in dispute to be filed before applying for an appointment for trial.
77.08(3) Where it appears to a judge that the pleadings and the statements referred to in subrules (1) and (2) do not sufficiently define the admissions and issues of fact and law between the parties, the judge may, upon motion of one of the parties or of the judge's own motion, direct the parties to prepare admissions and issues, and such issues shall, if the parties differ, be settled by the judge.
EXPERT WITNESSES
77.09(1) The evidence of an expert witness shall not be received at a trial unless
(a) a full statement of the proposed evidence of the witness has been set out in writing and signed by the proposed expert ;
(b) the original statement has been filed; and
(c) a copy of the statement has been served on the other party or parties,
except where, in a special case, a judge otherwise directs.
Time for filing and serving by applicant
77.09(2) Within 30 days after the proceedings are at issue the party who served the notice of application shall file and serve on all other parties the statement referred to in subrule (1).
Time for filing and serving by respondent
77.09(3) Within 14 days after being served with a statement pursuant to subrule (2), a party intending to call an expert witness shall file and serve on all other other parties the statement referred to in subsection (1), including any proposed rebutting evidence.
77.09(4) A party who intends to rebut proposed evidence in a statement received pursuant to subsection (3) shall, within 14 days after being served with the statement, file and serve on all other parties a supplementary statement, complying with subsection (1), of the proposed rebutting evidence.
77.10 An owner shall not, unless in a special case a judge otherwise directs, tender in evidence any offer to purchase the land received from any person other than the authority at any time prior to the expropriation unless notice of intention to call such evidence together with full particulars is served on the authority at least 15 days before the trial date.
77.11 If at the hearing any party seeks to rely upon evidence which appears to the judge not to have been fairly disclosed as required by the rules, the judge may adjourn the hearing on such terms as to costs or otherwise as is just.
TRIAL
77.12(1) After the proceedings are at issue a judge may, upon motion of any party with notice to all other parties, fix a time and place for trial and may direct when and in what manner and upon whom notice of trial is to be served.
77.12(2) An appointment for trial will not be granted unless
(a) the pleadings and statements of agreed facts and law, if any, and statement of issues of fact and law in dispute, if any, sufficiently define the admissions and the issues of fact and law in dispute;
(b) examinations for discovery, if permitted, have been completed or waived;
(c) production of documents has been completed or waived;
(d) any application for leave to call more than the number of expert witnesses limited by section 40 of the Act has been completed or waived;
(e) rule 77.09 has been complied with; and
(f) the parties have disclosed to each other a description of comparable lands to which they intend to refer at the trial.
77.12(3) Upon application for an appointment for trial the parties shall inform the court of
(a) the number of witnesses each party proposes to call;
(b) the estimate of the parties of the length of the hearing; and
(c) an indication of the quantity of documents in the case.
ASSESSORS
77.13(1) If it appears to the judge that any case coming on for hearing calls for special knowledge and that it would be desirable on hearing the case to sit with an assessor or assessors, the judge may appoint an assessor or assessors to sit and assist the court at the hearing.
77.13(2) The court may fix the remuneration for an assessor appointed under subrule (1).
FILING OF OFFER OF COMPENSATION
77.14 An authority may, at any time before the court's determination, file under a sealed cover a statement of the amount of the offer of compensation made by it to the owner, exclusive of any amount in respect of costs, and such statement shall not be opened by the court until after the amount to which the owner is entitled is determined by the court and the time for appeal has expired or the right to appeal waived.
PART XVIII
78 These Rules come into force upon the proclamation of The Queen's Bench Act, S.M. 1988-89 c. 4.
TARIFF "A"
TARIFF OF LAWYER'S FEES
1 For the purposes of this tariff,
"class" means a class of proceeding determined under this tariff as either a Class I, Class II, Class III or Class IV proceeding; (« catégorie »)
"class amount" means,
(a) the amount that is awarded to a party, or
(b) where a party successfully defends a proceeding,
(i) the amount, if so indicated by the judge, that would have been awarded had the party not been successful, or
(ii) the amount claimed against the party. (« montant de la catégorie »)
2(1) The court may direct that a proceeding be in any class which, in the courts discretion, is just.
2(2) Unless otherwise directed by the court, proceedings, other than family division proceedings, shall be classified as follows:
(a) where the class amount
(i) does not exceed the court's jurisdiction under The Court of Queen's Bench Small Claims Practice Act, — CLASS I,
(ii) exceeds the court's jurisdiction under The Court of Queen's Bench Small Claims Practice Act, but does not exceed $50,000. — CLASS II,
(iii) exceeds $50,000. but does not exceed $150,000. — CLASS III,
(iv) exceeds $150,000. — CLASS IV; and
(b) in all other cases — any class which, in the court's discretion, is just.
Classification of family division proceedings
2(3) Unless otherwise directed by the court, family division proceedings shall be classified as follows:
(a) custody, access or proceedings of a similar nature, or variations thereof: Class II
(b) support:
(i) where the award does not exceed $1,000. per month — CLASS II,
(ii) where the award exceeds $1,000. per month but does not exceed $2,000. per month — CLASS III, and
(iii) where the award exceeds $2,000. per month — CLASS IV;
(c) variation of a support order: CLASS II;
(d) proceedings under The Law of Property Act;
(i) where one-half of the equity at issue does not exceed $50,000. — CLASS II,
(ii) where one-half of the equity at issue exceeds $50,000. but does not exceed $150,000. — CLASS III, and
(iii) where one-half of the equity at issue exceeds $150,000. — CLASS IV;
(e) family property;
(i) where the value of assets or debts at issue at trial does not exceed $50,000. — CLASS II,
(ii) where the value of assets or debts at issue at trial exceeds $50,000. but does not exceed $150,000. — CLASS III, and
(iii) where the value of assets or debts at issue at trial exceeds $150,000. — CLASS IV; and
(f) in all other family division proceedings — any class which, in the court's direction, is just.
2(4) The court may direct that specific steps in a proceeding be in one class and other steps in the proceeding be in other classes, or may deny costs in respect of any step or steps.
3(1) Costs in a Class I proceeding shall be assessed as follows:
(a) costs, other than costs for an interlocutory proceeding or to enforce or execute an order, shall be assessed in accordance with The Court of Queen's Bench Small Claims Practices Act; and
(b) costs for an interlocutory proceeding or to enforce or execute an order, including pending litigation order (rule 42), recovery of personal property (rule 44), order for preservation of property (rule 45), attaching order (rule 46), notice of garnishment (rule 46.14 and 60.08), writ of delivery (rule 60.04), writ of seizure and sale (rule 60.07), writ of possession (rule 60.09), contempt order (rule 60.10) and examination in aid of execution (rule 60.17): $25.
M.R. 146/90; 42/96
3(1.1) Costs in a proceeding authorized under a statute, other than The Court of Queen"s Bench Small Claims Practices Act, and in which the class amount does not exceed the court's jurisdiction under The Court of Queen's Bench Small Claims Practices Act shall be assessed as if the judgment were obtained in a Class II proceeding.
M.R. 146/90; 42/96
3(1.2) Costs in a claim made under The Court of Queen's Bench Small Claims Practices Act shall be as follows:
(a) costs, other than costs to enforce or execute a judgment that originally was a decision made under The Court of Queen's Bench Small Claims Practices Act, may be awarded by a judge or court officer in accordance with that Act; and
(b) costs to enforce or execute a judgment that originally was a decision made under The Court of Queen's Bench Small Claims Practices Act including writ of seizure and sale (rule 60.07), notice of garnishment (rule 60.08), contempt order (rule 60.10) and examination in aid of execution (rule 60.17): $25.
M.R. 42/96
3(2) Costs for other than Class I proceedings, shall be assessed according to the steps in a proceeding, and the amounts to be allowed on a party and party assessment for each classification shall be as follows:
(a) consideration, preparation and services before pleadings; preparation of pleadings; consideration of pleadings of other parties (the word "pleadings" to include statement of claim, petition, motion to vary corollary relief, notice of application, statement of defence, counterclaim, answer, counterpetition, reply, third party notice, reply to third party notice, demand for particulars and particulars, and all necessary amendments other than consequential amendments included in item (b) below):
CLASS II - $350.,
CLASS III - $525., and
CLASS IV - $700.;
(b) amendment of pleadings: where a party amends pleadings, each other party may be allowed, an amount for perusing the amendment, for making any consequential amendments to pleadings, and for any item in this tariff that may have to be repeated in whole or in part. The amounts allowed by the assessment officer shall be based on and proportionate to the amount allowed in this tariff for the whole item concerned but shall not exceed one-half of that amount;
(c) default judgment (including attendance to search for defence and all necessary notices and affidavits:
CLASSES II, III and IV: $50.;
(d) discovery of documents (Rule 30), including notices, affidavits, perusals, inspections and copying:
CLASS II - $100.,
CLASS III - $150., and
CLASS IV - $200.;
This item covers discovery of documents in both directions between two opposite parties;
(e) examination for discovery (Rule 31) and interrogatories (Rule 35), including preparation:
CLASS II - $350. per one-half day,
CLASS III - $525. per one-half day, and
CLASS IV - $700. per one-half day;
This item covers both examining and being examined by one opposing party. It also covers the delivery or answering of interrogatories, whether instead of oral examination or in addition to it. A successful party may recover this item once from each unsuccessful party, provided that there has been, as between them, at least one examination or one delivery of interrogatories, but no party may recover this amount more than once from any other party;
(f) examination before trial (rule 36.01), cross-examination on an affidavit (rule 39.02) and examination of a witness before a hearing (rule 39.03), including preparation:
CLASS II - $350. per one-half day,
CLASS III - $525. per one-half day, and
CLASS IV - $700. per one-half day;
This item may be allowed to a party on whose behalf an examination is conducted or to a party attending to be examined;
(g) taking evidence on commission (rule 34.07), including preparation
CLASS II - $350.00 per one-half day,
CLASS III - $525.00 per one-half day, and
CLASS IV - $700.00 per one-half day;
This item covers all attendances to take evidence in the manner prescribed without regard to the number of witnesses;
(g.1) consideration, preparation and service of a motion or application:
CLASS II — $35O.
CLASS III — $525.
CLASS IV — $700.;
(h) attendance on an uncontested motion or application (including a motion or application to vary corollary relief):
CLASSES II, III and IV: $125.;
(i) appearances on or preparation of documents for uncontested divorces:
CLASSES II, III and IV: $125.;
(j) attendance on contested motion or application (including a motion or application to vary corollary relief):
CLASSES II, III and IV: $350. per half-day;
(k) preparation for trial of an action or application (including preparation, set down, attendances to fix or obtain date, record, notice of trial, notice to produce at trial, subpoenas, brief, subject to discretion of trial judge to increase the costs in any class where trial exceeds three days):
CLASSES II, III and IV: $1,000.;
(l) drawing or answering a notice to admit or offer to settle:
CLASSES II, III and IV: $100.;
(m) counsel fee on a pre-trial conference:
CLASSES II, III and IV: $350.;
Including preparation of brief and first attendance; second and subsequent attendances including preparation of additional brief where required, $150.00 per attendance. Subject to increase in discretion of the pre-trial judge where the amount involved is in Classes III and IV;
(m.1) counsel fee on a case conference:
CLASSES II, III and IV: $125. per attendance;
(n) counsel fee at the trial of an action or hearing of an application:
CLASS II - $350. per one-half day, except that where the class amount exceeds the maximum recoverable under The Court of Queen's Bench Small Claims Practice Act but does not exceed $10,000., counsel fee, unless the trial judge otherwise directs, shall be assessed on a 50% basis,
CLASS III - $525. per one-half day, and
CLASS IV - $700. per one-half day;
In the discretion of the assessment officer a fee may be allowed for second counsel, which shall not exceed two-thirds of the fee allowed for the first counsel;
(o) assessment of costs (uncontested):
CLASSES II, III and IV: $150.;
(p) assessment of costs (contested):
CLASSES II, III and IV: $350.;
(q) all other services after judgment, including attendances to settle minutes of judgment, but excluding execution and examination in aid of execution:
CLASS II - $100.,
CLASS III - $150., and
CLASS IV - $200.;
(r) interlocutory process and execution, including pending litigation order (Rule 42), recovery of personal property (Rule 44), order for preservation of property (Rule 45), attaching order (Rule 46), notice of garnishment (rule 46.14 and 60.08), writ of seizure and sale (rule 60.07), writ of possession (rule 60.09), writ of delivery (rule 60.04) and contempt order (rule 60.10):
CLASSES II, III and IV: $75.; and
(s) adjournments: such amount, if any, as may be fixed by the judge or assessment officer granting the adjournment, except that where an appearance is required in a matter within CLASSES II, III or IV, $50 or such greater amount as may be fixed by the judge
(t) examination in aid of execution, including preparation (rule 60.17):
CLASS II - $350. per one-half day,
CLASS III - $525. per one-half day,
CLASS IV - $700. per one-half day.
M.R. 150/89; 98/95; 158/99; 66/2000
Proceedings in master's office
3(3) In all proceedings in the Master's office the amount to be allowed shall be assessed on the same basis as above for like or similar services or for services most closely resembling those in question.
4 Where two or more proceedings between the same parties are consolidated or heard together, the proceeding shall be classified at the higher class, and only one set of costs shall be awarded, unless the court otherwise directs.
TARIFF "B"
1 Unless otherwise directed by the court, the amount of disbursements in a proceeding shall be determined as follows:
(a) attendance money actually paid to a witness who is entitled to attendance money, to be calculated as follows:
(i) for each half-day of necessary
attendance $25.,
(ii) travel allowance, where the hearing or examination is held,
(A) in the centre in which the witness resides, for each day of necessary attendance, $3.,
(B) within 300 kilometres of where the witness resides, for each kilometre each way between the witness' residence and the place of the hearing or
examination, 24¢,
(C) more than 300 kilometres from where the witness resides, the minimum return air fare plus for each kilometre each way from the witness' residence to the airport and from the airport to the place of hearing or examination, 24¢,
(iii) overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each overnight stay $75.;
(b) fees or expenses actually paid to the court, a court reporter, official examiner or sheriff under the regulations under The Law Fees Act;
(c) for service or attempted service of a document, a reasonable amount;
(d) for an examination and transcript of evidence taken on the examination, the amount actually paid, not exceeding the fee payable to an official examiner under the regulations under The Law Fees Act;
(e) fees or expenses actually paid for the preparation of a plan, model, videotape, film or photograph reasonably necessary for the conduct of the proceeding or a reasonable amount;
(f) fees or expenses actually paid for experts' reports that were supplied to the other parties as required by The Manitoba Evidence Act or these rules and that were reasonably necessary for the conduct of the proceeding or a reasonable amount;
(g) fees or expenses actually paid for investigations, tests, enquiries, examinations and other services performed for the purpose of the proceedings by experts, including all preparation for the purpose of giving evidence and attending to assist in the conduct of the proceedings or a reasonable amount;
(h) for an interpreter for services at the hearing or on an examination, a reasonable amount not exceeding $100. a day, subject to increase in the discretion of the assessment officer;
(i) where ordered by the presiding judge or officer, such travelling and accommodation expenses incurred by a party as, in the discretion of the assessment officer, appear reasonable;
(j) for copies of any documents or authorities prepared for or by a party for the use of the court and supplied to the opposite party, a reasonable amount;
(k) for copies of records, appeal books and factums, a reasonable amount;
(l) the cost of certified copies of documents such as orders, birth, marriage, and death certificates, abstracts of title, deeds, mortgages and other registered documents where reasonably necessary for the conduct of the proceeding;
(m) the cost of transcripts of proceedings of courts or tribunals,
(i) where required by the court or the rules, or
(ii) where reasonably necessary for the conduct of the proceeding;
(n) where ordered by the presiding judge or officer, for any other disbursement reasonably necessary for the conduct of the proceeding, a reasonable amount in the discretion of the assessment officer;
(o) the cost of goods and services tax actually paid or payable on the lawyer's fees and disbursements allowable under Rule 58.05.
M.R. 150/89; 6/98
December 12, 1988 G. Kroft, J.
Chairman