Mediating in the context of separation, divorce and family re-organization means that the mediator is working with both the legal family and the relational family.
The legal system is set up to protect the rights and responsibilities of the individual in the dissolution of the marriage contract.
The legal family becomes dissolved with the legal process; however, the law does not fully address the family or the ongoing relational issues of post legal separation.
- The legal process can often increase fears and set up a negative negotiating dynamic due to lack of understanding. With confusion regarding the legal process, legal terms, financial responsibilities and obligations, fears often increase.
- Mediators need to have an understanding of the legal process and considerations in order to help support their clients to get good and accurate information in order to make decisions.
- Mediators and lawyers providing legal education to clients need to be careful to ensure that clients understand the difference between the role of educator and the provision of legal counsel.
- Clients should be encouraged to consider independent legal counsel, attend legal education workshops and/or explore material offered through the provincial and federal departments of Justice in order to understand fully their options and the inherent consequences of their decision making. The law of divorce involves both federal and provincial legislation. This is due to the division of powers between the federal and provincial legislatures in the Canadian Constitution. The federal government has control over marriage and divorce laws, but there is overlap. The provinces have control over laws concerning solemnization of marriage, property and civil rights in the province, and the provincial courts. There are two main laws that will affect divorce in Manitoba: The Divorce Act (R.S., 1985, c. 3 (2nd Supp.)), which is a federal law, and the Court of Queen’s Bench Rules, Manitoba Regulation 553/88 which is a provincial regulation.
How the law affects any person will depend on the facts of each case. Family law also changes from time to time as both federal and provincial governments make new laws (legislation: acts and regulations)and the courts make decisions in cases that affect the law (the common law).
Legal Marriage and Common Law Partners: What’s the difference?
- Legal marriage gives status to individuals as spouses, resulting in certain rights and obligations.
- Legal marriages are governed under Federal legislation of The Divorce Actas well as the provincial legislations that also apply to Common Law relationships.
- Common Law relationships are governed under Provincial legislation. There is no single definition of common-law partners or a common- law relationship in Manitoba law. However, there are examples of how common- law partners are treated under Manitoba law. Common-law partners have all the same rights under The Family Maintenance Act as legally married spouses, including the right to seek spousal support provided they have:
- Registered their common-law relationship with the Vital Statistics Agency or
- Lived together for at least one year and have a child together or
- Lived together for at least three years if there are no children of the relationship
- In 2001, Manitoba passed a law that changed 10 provincial acts to ensure that both opposite-sex and same-sex common-law partners were treated equally under those acts. Children born to married spouses and those born to common-law partners have equal legal status and rights. The Family Maintenance Act gives unmarried parents certain rights respecting custody of their children. If the parents have lived together after the birth of their child, they have joint custody of the child unless a court orders otherwise. If the parents have never lived together after the child’s birth, the parent with whom the child lives has sole custody, unless a court orders otherwise. The Family Maintenance Act also has provisions for determining the parentage of a child when this is in dispute.
- Court applications for custody of or access to children of common-law relationships are no different from applications involving children of married parents. The court’s decisions are based on the best interests of the children involved, and the court must consider a number of specific best interests criteria in deciding custody or access cases.
- Similarly, parents have equal responsibilities to support their children whether married to the child’s other parent or not. Manitoba’s Child Support Guidelines are equally applicable to unmarried parents and to those who are married.
- When spouses (legally married) or common-law partners separate, the law sets out their rights and duties to each other in specific areas:
Financial Support and Financial Information (The Family Maintenance Act):
- Use of Family Asset (property owned by one or both) i.e. family home, family care, summer cottage, lawnmower, gardening tools. Excludes things like personal belongings of clothing or other items not regularly used by both (The Family Property Act).
- The Family Home: there are special protections provided to both parties (The Homestead Act).
- Pensions: The Pension Benefits Act of Manitoba requires that every pension plan must state that the pension benefits payable to a plan member who is either married or in a common-law relationship will be in the form of a joint pension unless the couple is living separate and apart when the pension commences or the spouse/common-law partner waives his or her entitlement to a joint pension.
The Difference between Separation and Divorce
- Spouses who have separated are still legally married, even if there is a court order of separation. Manitoba law covers separation matters between spouses or between common- law partners, such as parenting arrangements (custody and access), financial support for separated spouses and common-law partners or their children and division of property.
- Federal law applies to married spouses who are seeking a divorce and is the same throughout Canada. When a court grants a divorce, the marriage is ended. The Divorce Act sets out how a divorce can be obtained. It also deals with matters related to divorce, such as parenting arrangements and financial support. The Divorce Act provisions on parenting arrangements and support are very similar to the provincial laws in these matters.
- A court order or formal separation agreement is not required for spouses to separate — they may simply live separate and apart. However, particularly when there are children or issues relating to property or financial support, it is wise for separating spouses to have a written separation agreement or court order.
- Many couples settle all issues between them by entering into a written separation agreement. Through such an agreement, they can avoid court proceedings, or shorten existing proceedings, except the proceedings needed to obtain the divorce order to end their marriage. However, an agreement cannot change a parent’s legal rights respecting custody of their children under The Family Maintenance Act.
A separation agreement will usually deal with matters such as:
- Parenting arrangements (custody and access)
- Financial support
- Division of family property
- The right to live in the family home
- Responsibility for family debts
- Estate rights on the death of each spouse
Parents can work out the details of the separation agreement themselves, using mediation or lawyers.
- Mediated agreements are not legal documents and are good faith agreements. They are able to be more sensitive to the particular needs of the family as they are crafted by both parties and often have more detail than separation agreements or court orders.
- A lawyer can put the agreement into a formal legal agreement.
- To put a separation agreement into a legal agreement, it is encouraged that both parties have independent legal advice because it is a legally binding contract. Sometimes couples want to save legal costs by having one lawyer act for both of them. This is not possible as a lawyer can only represent one party in a case.
Other Requirements Under the Divorce Act
- Under the Divorce Act, the court must be satisfied that there is no possibility of a reconciliation before granting a divorce.
- The Petition for Divorce contains a statement that says there is no possibility of reconciliation or living together again. If there is an oral hearing, at court the judge will ask the parties whether reconciliation is possible.
- The court must also be satisfied that there has not been collusion, or the application will be dismissed. Collusion is when both parties have acted together to deceive the court.
- If there are children of the marriage, the court must consider the issue of child support in a divorce. Determining an appropriate child support arrangement can be complex.
- If there are children of the marriage and the parties have not determined support for them, parties should seek assistance from a lawyer.
- Section 11 of the Divorce Act says that the court must be satisfied that reasonable support arrangements have been made for any children of the marriage, having regard to the applicable child support guidelines. The Act also says if reasonable arrangements have not been made, the court must wait until they have been made before granting the divorce.
- If both spouses live in Manitoba and there are children of the marriage, the Child Support Guidelines Manitoba Regulation 58/98 applies. These are the provincial guidelines. If one of the spouses lives outside Manitoba, then the Federal Child Support Guidelines apply.
- Some parents may have children of the marriage and may have made child support arrangements already.
- When a party is seeking a divorce and have children of the marriage, each spouse’s financial information and the details of the arrangement should be provided to the court. The court needs to know the income of each of the spouses so the court can confirm the child support is in accordance with the child support guidelines or is otherwise reasonable.
- Sometimes spouses choose to agree with each other on a child support amount that is different from the amount in the child support guidelines. If the parents have chosen to do this, the court must decide whether or not it is a reasonable alternative to the guidelines.
- If the child support arrangement is not acceptable to the court, or if there is not enough evidence to prove it is appropriate, the divorce may not be granted. The financial information in a case where there is child support that has been previously agreed to should include a Financial Statement (Form 70D) and the accompanying documents specified by Form 70D, such as income tax returns and notices of assessment and reassessment from the past three years, and other documentation proving the amounts of other income such as pay stubs or a letter from an employer. Parties will need updated pay stubs to prove current income if filing after May of any year.
- A divorce takes effect on the 31stday after it was granted. Spouses cannot re-marry until the divorce takes effect. Once the divorce has taken effect, parties can get a divorce certificate. Parties can use this certificate or a certified copy of it as proof of divorce. The divorce has legal effect throughout Canada.
Who Can Get Divorced in Manitoba
- The Divorce Act says that if either spouse has been ordinarily resident in a province for at least one year, either of the spouses can file for divorce there. So, if either party has been living in Manitoba for at least one year, either party (or both) can file a Petition for Divorce in The Manitoba Court of Queen’s Bench.
The Court of Queen’s Bench Rules
- Rule 70 of The Court of Queen’s Bench Rules deals with family law issues before the court. It sets out what forms must be filled out and filed with the court and what procedures need to be followed to get a divorce.
- For an uncontested divorce, parties can apply to the court jointly, as co-petitioners, or, one person can file the Petition for Divorce and the other can fail to respond, allowing the petitioner to proceed on an uncontested basis. If the respondent files a form called an Answer, then the divorce becomes contested.
Procedures to follow to get an Uncontested Divorce
- There is a choice in deciding how to file for divorce. If the parties are willing to work together, they can file jointly as co-petitioners. They can also choose to file as petitioner and respondent. This is the most common way it is done in Manitoba.
- The advantage to filing jointly is that a party does not need to serve the other party. One possible disadvantage is that parties have to work together on the Petition for Divorce.
- You might think that filing as joint petitioners would save time as serving the other party is not required, however in most cases it takes the same amount of time. This is because a Central Divorce Registry (CDR) certificate (a document that says that a divorce has not been initiated in another province or territory) is required and will take 6-8 weeks to arrive. The hearing cannot be set down or the affidavit determination requested until the certificate is available. The serving of the Petition for Divorce normally takes place during the time while waiting for the CDR certificate.
- If all matters are not completely resolved or if the parties may have difficulties during the process, they might want to file as Petitioner and Respondent in case some contested issue has to be decided by the court.
Most of the above material is taken from the following publications, which are highly recommended readings:
Family Law in Manitoba booklet, 2014: Manitoba Department of Justice: www.gov.mb.ca/justice/family/familyindex.html
Legal Requirements for Divorce in Manitoba, Community Legal Education Association (CLEA): http://www.communitylegal.mb.ca/wp-content/uploads/Legal-Requirements-for-Divorce.pdf
The Uncontested Divorce Guide for Manitobais also available from CLEA at a cost.
Other useful websites for information:
Community Legal Education Association: www.communitylegal.mb.ca
Legal Help Centre: www.legalhelpcentre.ca
Links to specific legislation:
The Family Maintenance Act: http://Web2.gov.mb.ca/laws/statues/ccsm/f020ei.php
The Divorce Act: https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html
The Family Property Act: http://web2.gov.mb.ca/laws/statues/ccsm/f025e.php
The Protection From Domestic Violence and Best Interests of Children Act (Family Law Statutes Amended): http://web2.gov.mb.ca/bills/39-4/b0193.php
The Family Law Modernization Act (Bill 9): http://web2.gov.mb.ca/bills/41-4/b009e.php