Do You Have to Try Mediation Before Family Court in Manitoba?

You are about to ask a court to decide parenting time, decision-making or support, and you have heard you must try mediation first. It is a fair worry. Nobody wants a filing rejected or a hearing delayed over a missed step.

This article explains where mediation sits in the Manitoba family court process, which cases follow a different path, and what to confirm before you file. The exact rules for your situation can turn on the details, so a lawyer can confirm them.

This article covers the law of Manitoba.

Where mediation appears in the court process

In the Court of King's Bench, Family Division, a case starts when someone files a petition, notice of application or statement of claim and serves the other party. After that, the procedures list prerequisites to complete, including the For the Sake of the Children Program, Form 70D financial statements with three years of tax returns, Form 70D.5 if property is in issue, and mediation efforts.

Notice the wording: mediation efforts. The procedures describe mediation as one of the steps to work through on the way to a hearing. Whether a particular step can be skipped in your case depends on the facts, and a lawyer can confirm that.

What happens after the prerequisites

Once the prerequisites are done, a party requests triage using Forms 70D.2, 70D.3 and 70D.4, and a triage conference follows. A case conference is held within 30 days, and the procedures give a trial date within 12 to 15 months.

• File the petition, notice of application or statement of claim, then serve the other party.
• Complete the prerequisites, including mediation efforts.
• Request triage and attend the triage conference.
• Attend the case conference within 30 days.
• File a Trial Readiness Certificate (Form 70S.3) at least 45 days before trial.

If you disagree with the outcome, an appeal generally has to be started within 30 days of the order being filed. Because timelines in family court can be short, it helps to ask a lawyer early which dates apply to your case.

Cases that follow a different process

The triage model does not apply to child protection, adoption, consent orders, or uncontested divorce or separation, which follow different processes. If you and the other parent already agree, a consent order is therefore handled differently from a contested application.

Whether a separation agreement or a written arrangement can replace court steps depends on what you need. Manitoba guidance recommends a written separation agreement, family arbitration award or court order when there are children or issues about property or financial support. Both people should get independent legal advice, because the agreement is a binding contract.

Agreements also affect support. Under The Family Law Act, if a spouse released the other from support or accepted a set amount in a written agreement, the court generally cannot order support for that spouse. The exceptions are default under the agreement, support that was inadequate when the agreement was made, or the releasing spouse now needing public assistance. Manitoba guidance adds that a court is unlikely to interfere with a bad bargain but may set an agreement aside where fraud or unfair pressure is shown, and that agreements are not court orders and can be harder to enforce.

If you were not married, these rules can still matter to you. Under The Family Law Act, a common-law partner is a person who has cohabited in a conjugal relationship for at least three years, or at least one year if they are together the parents of a child, or who registered the relationship under The Vital Statistics Act. Property rules under The Family Property Act use a different definition, based on registration or three years of cohabitation.

Urgent situations and safety

Urgent issues can be prioritized for hearing within 30 days. If the problem is violence or stalking, a different route exists: an application for a protection order under The Domestic Violence and Stalking Act can be made without notice to a designated justice of the peace. The Act covers people who cohabit or have cohabited in an intimate relationship, who have a family relationship, who have or had a dating relationship, or who are parents of the same child.

A protection order can include no-contact terms, removal of the respondent from the residence, and temporary possession of personal effects. It expires three years after it is granted unless the justice sets a longer period.

If you are in danger now, contact emergency services first. A lawyer can then help you with the court side.

What to do next

Court practice can change, and the published procedures may lag current practice, so check the Manitoba Courts website for the current forms and fees before you file. The Maintenance Enforcement Program is part of the Family Resolution Service. It enforces support but does not enforce parenting or contact terms or property division. How mediation options apply to your situation depends on the facts, so it is worth confirming with a lawyer.

• Write down what you are asking for: parenting time, decision-making, support, property.
• Gather three years of tax returns and your financial information for the Form 70D statements.
• Ask the other parent whether they would try mediation or agree to terms in writing.
• Check the current Court of King's Bench family forms before filing.
• Speak with a lawyer about whether any step can be skipped or sped up in your case.

Frequently asked questions