How Is Custody Decided in Manitoba? Parenting Time Explained

When parents separate, one of the first worries is who the children will live with and who gets to make the big decisions. In everyday speech people still say custody, but Manitoba law uses different words, and knowing them makes the process easier to follow.

This article explains how a Manitoba court approaches those questions, what it weighs, and the steps a contested case generally follows. Every family is different, so treat it as a general guide and not a prediction of how your case will turn out.

This article covers the law of Manitoba.

Custody and access are now parenting time and decision-making

Manitoba's Family Law Act replaced the concepts of custody and access with parenting orders that set parenting time and decision-making responsibility. Older court material and everyday conversation may still use the old words, but the current terms are the ones to look for.

• Parenting time is the time a child spends in the care of a person, and the child need not be physically with that person for the whole period.
• Decision-making responsibility is responsibility for making significant decisions about a child's well-being, including health, education, culture and religion, and significant extra-curricular activities.

In Court of King's Bench Rule 70, you use Form 70A (Petition for Divorce) for relief under the Divorce Act and Form 70B (Petition) for provincial relief such as parenting arrangements. Both use the same basic vocabulary.

What happens if there is no court order

Without a parenting order, parents have joint rights to exercise parental responsibilities for their children. There is an exception: where the parents never lived together after the child's birth, the parent with whom the child resides is the only parent with decision-making responsibility, unless a parenting order says otherwise.

Either or both parents can apply for a parenting order, as can a person other than a parent who stands in the place of a parent. A non-parent needs leave of the court and must give notice to the parents.

What the court considers

The court considers only the best interests of the child, and it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The wishes of either parent do not decide the question on their own.

• The child's needs given age and stage of development, such as stability, the strength of the child's relationships with parents, siblings, grandparents and others, and the history of care of the child.
• Each person's willingness to support the child's relationships with others, any plan for the child's care, and the child's cultural, linguistic, religious and spiritual upbringing and heritage.
• Each person's ability and willingness to care for the child and to communicate and cooperate on matters affecting the child.
• Family violence and its impact, including whether it is appropriate to require cooperation on matters affecting the child.

The child's views are given due weight according to the child's age and maturity, unless they cannot be ascertained, and the statutes set no fixed age at which a child's choice decides the matter. A person's past conduct is not considered unless it is relevant to the exercise of their parenting time, decision-making responsibility or contact.

In allocating parenting time, a child should have as much time with each parent as is consistent with the child's best interests. The person with parenting time generally has exclusive authority over day-to-day decisions during that time.

How a contested case moves through the Family Division

The applicant files an application in the Family Division and serves the other party, who may respond. Before a contested case can be scheduled, several prerequisites must be met.

• Attend the For the Sake of the Children Program, which is mandatory for Manitobans requesting or responding to interim or final custody, access or private guardianship orders.
• Complete a written parenting plan; each parent must submit their own if they cannot agree.
• Exchange a financial statement (Form 70D) and the last three years of income tax returns.
• Document attempted mediation and obtain any required assessment report.

The program is not required where the other parent lives outside Manitoba, the parties consent to the order, the matter is unopposed, or the parent attended within the three years before the petition was filed.

Once the prerequisites are met, the party files a request for triage conference, a certificate of prerequisite completion and a triage brief, and both parties attend in person unless the judge allows phone or video. A case conference is then scheduled within 30 days, and if it does not settle the matter a trial is set within 12 to 15 months. Urgent matters, such as an immediate risk to a party or child, can go to an emergent hearing before triage.

What to do next

• Write down your current care routine and who handles school, health and activities.
• Start drafting a parenting plan covering time, decisions and information sharing.
• Look into the free services of the Family Resolution Service, including parenting programs and optional mediation.
• Gather your last three years of tax returns and financial information.
• If safety is a concern, speak with a lawyer promptly about urgent options.

A family lawyer can explain which statute applies to you and how the steps fit your situation.

Frequently asked questions