What If I Feel Unsafe Mediating With My Ex in Manitoba?

Mediation is meant to help two people reach their own agreement. That is hard to do if you are afraid of the other person, if they have controlled or hurt you in the past, or if you do not feel able to say what you need in the same room or on the same call.

This article explains how mediation fits into Manitoba family court steps, what safety tools exist separately from mediation, and how to raise your concerns. Whether mediation can be skipped or changed in your situation depends on the facts, so a lawyer can confirm your options.

This article covers the law of Manitoba.

Where mediation fits in a Manitoba family case

In the Court of King's Bench, Family Division, the usual steps include filing your documents, serving the other party and completing prerequisites. Those prerequisites include the For the Sake of the Children Program, financial statements, and mediation efforts.

Not every case follows that path. The triage model does not apply to uncontested divorce or separation, consent orders, adoption or child protection, which follow different processes. Urgent issues can be prioritized for a hearing within 30 days.

Whether a person who fears abuse can be excused from mediation, or can take part in a different way, depends on the circumstances and on what the court or mediator allows. Do not assume you must sit across from your ex. Raise the concern early and ask a lawyer how to put it forward.

Safety options that do not depend on mediation

The Domestic Violence and Stalking Act covers people who live or lived together in a spousal, conjugal or intimate relationship, people in a family or dating relationship, and parents of the same child.

• An application for a protection order can be made without notice to the other person, to a designated justice of the peace.
• You can apply in person. A lawyer, peace officer or person designated by the minister may apply with your consent.
• The justice looks at whether domestic violence or stalking has happened, whether you need protection, and whether the order should be made without delay because of seriousness or urgency.
• Risk factors the justice must consider include history of abuse, escalation, coercive control and access to firearms.

An order can include no-contact terms, removal of the respondent from the residence, temporary possession of personal effects and firearm surrender.

How long a protection order lasts and what happens next

A protection order expires three years after it is granted, unless the justice sets a longer period that is needed for protection. Once filed in court it is an order of the court.

The other person may apply to set the order aside within 20 days of being served, but that application does not stay the order. If someone breaks an order, tell the police and your lawyer, since the consequences depend on the circumstances.

Protecting yourself if you do negotiate an agreement

You do not need a court order or formal agreement to separate. Written agreements are recommended, though not required, when there are children or issues about property or support.

Any separation agreement is a binding contract, which is why both people should have independent legal advice. A court is unlikely to interfere with a bad bargain, but it may set an agreement aside where fraud or unfair pressure is shown. Agreements are not court orders and can be harder to enforce.

If a spouse signs away support in a written agreement, the court generally cannot order support for that spouse, with exceptions such as default, inadequate support when the agreement was made, or later need for public assistance. Before you sign any agreement that deals with support, take the time to understand exactly what it says and what you may be giving up.

Abuse does not by itself change every outcome. Misconduct is not taken into account in a spousal support order under the Divorce Act, and conduct is disregarded in dividing property unless it amounts to dissipation. Safety and the financial issues are handled separately, so tell your lawyer about both.

What to do next

• Write down incidents, dates and any threats, and keep messages, emails and voicemails somewhere the other person cannot reach.
• Speak with a family lawyer before any mediation session and explain your safety concerns.
• Ask your lawyer whether a protection order, an urgent hearing or a different way of handling mediation fits your situation.
• Do not sign any agreement until you have had independent legal advice.
• Tell the mediator or court office, as early as you can, about any fear, abuse or coercive control.

Frequently asked questions