Acts and Regulations

Rule-73 - FAMILY DIVISION

Table of contents
Full text
Current to 1 January 2024
PARTICULAR PROCEEDINGS
RULE 73
FAMILY DIVISION
73.01Application of Rule
Subject to Rule 73.011, civil proceedings in the Family Division of the Court of King’s Bench shall be conducted in accordance with this rule unless an Act provides otherwise.
2010-135; 2022-86
73.011Proceedings Commenced in Judicial Districts with a case management model
2010-135; 2018-35
(1)This rule applies to proceedings commenced under the following provisions of the Family Services Act in a Judicial District that has established a case management model for those proceedings:
(a) Part II, Community Placement Resources;
(b) Part III, Protection Services; and
(c) Repealed: 2023, c.36, s.21
(d) Repealed: 2023, c.36, s.21
(e) Part VI, Parentage of Children.
(1.1)This rule applies to proceedings commenced under the following provisions of the Child and Youth Well-Being Act in a Judicial District that has established a case management model for those proceedings:
(a) Part 5, Protection Services; and
(b) Part 6, Adoption.
(2)Despite clause (1)(e), this rule does not apply where an Application (Form 81A) includes a claim for a declaratory order under section 100 of the Family Services Act.
(3)A proceeding that was commenced under this rule in a Judicial District that has established a case management model for that type of proceeding before the commencement of this paragraph shall be dealt with and concluded in accordance with the procedure in force under this rule immediately before the commencement of this paragraph.
2010-135; 2018-35; 2023, c.36, s.21
73.02Application of Other Rules
The other rules of court except where inconsistent with this rule or an Act, apply to proceedings in the Family Division.
73.02.1Definition
99-71
(1)In this Rule
responding document means a respondent’s affidavit in opposition to an application or motion under this Rule or a respondent’s affidavit asserting a right or claim provided for under this Rule.
(2)A responding document shall contain
(a) the name and division of the court,
(b) the name of the judicial district in which the proceeding is conducted,
(c) the court file number,
(d) the style of proceeding,
(e) the title of the document,
(f) where the respondent opposes an application or motion, the grounds relied on,
(g) where the respondent asserts rights or claims, a list of the rights or claims and the persons against whom the rights or claims are made,
(g.1) the particulars of previous proceedings with respect to the claim, or any other proceedings involving the respondent or the applicant or any of the children, including any criminal or child protection cases or orders, and any restraining orders or applications,
(h) the language in which the respondent intends to proceed,
(i) the date of the responding document,
(j) the name of the respondent’s solicitor, the firm name, if applicable, his or her address for service, his or her e-mail address, if any, his or her business telephone number and his or her fax number, if any, and
(k) the name of the respondent if he or she is not represented by a solicitor, his or her address for service, his or her e-mail address, if any, and his or her telephone number, including his or her fax number, if any.
99-71; 2012-86; 2021-17
73.03Commencement of Proceedings
(1)Subject to Rules 73.15(2) to (4), 73.17, 73.17.1, 73.17.2 and 73.17.3, a proceeding under this rule shall be commenced by issuing a Notice of Application (Form 73A).
(2)A Notice of Application shall be accompanied by
(a) a Financial Statement (Form 72J), if required by this rule,
(b) any affidavits to be used by the applicant on the hearing, and
(c) any income information required under the child support guidelines under the Family Law Act.
(3)A Notice of Application is issued when the original, a copy for each party, and any filing fee prescribed by these rules
(a) are taken to the office of the administrator of the Family Division in the judicial district in which the proceeding is to be commenced, or
(b) are sent by prepaid registered mail or prepaid courier and addressed to the administrator of the Family Division in the judicial district in which the proceeding is to be commenced.
85-5; 90-20; 92-3; 98-37; 99-71; 2021-17
73.04Notice of Application
(1)Upon receiving a Notice of Application the administrator shall
(a) assign a court file number to the proceeding,
(b) obtain a date for hearing from a judge,
(c) enface on the original and all copies of the Notice of Application
(i) the court file number,
(ii) the date of issue, and
(iii) the date of hearing,
(d) retain the original, and
(e) return a copy to the applicant, and
(f) subject to paragraph (2) cause a copy of the Notice of Application, any Financial Statements, any income information required under the child support guidelines under the Family Law Act and any affidavits to be used by the applicant on the hearing to be served on each respondent in the manner prescribed by Rule 18.
(2)Where subsection 38(2) of the Family Services Act or subsection 60(2) of the Child and Youth Well-Being Act applies or where the applicant is not represented by a solicitor, or is represented by a solicitor privately retained by him, the applicant shall cause a copy of a Notice of Application, any Financial Statements, any income information required under the child support guidelines under the Family Law Act and any affidavits to be used by the applicant on the hearing to be served on each respondent in the manner prescribed by Rule 18.
85-5; 90-20; 98-37; 2021-17; 2023, c.36, s.21
73.05Time for Service
Subject to subsection 38(2) of the Family Services Act or subsection 60(2) of the Child and Youth Well-Being Act, a Notice of Application shall be served at least 25 days before the date on which the application is to be heard.
90-20; 98-37; 2023, c.36, s.21
73.06Warrant to Apprehend Respondent
Where a respondent whose attendance is necessary for the just determination of a proceeding
(a) is not likely to attend in response to a Notice of Application, or
(b) does not attend before the court on the date set for the hearing of the proceeding,
the court may issue a Warrant to Apprehend (Form 73B) directing a peace officer to apprehend the respondent and bring him before the court.
73.07Joinder of Parties
(1)Unless ordered otherwise, if guardianship is in issue in a proceeding or if a Notice of Application is issued that contains a claim for a parenting order or a contact order, each parent, each guardian and each person who has parenting time or decision-making responsibility in respect of the child shall be made a party to the proceeding.
(2)The court may order that any person who may have an interest in a proceeding be served with notice of the proceeding without adding the person as a party.
(3)A person against whom a respondent asserts a right or claim is a party to the proceeding.
98-37; 2021-17
73.08Scope of Proceeding
The court may determine any issue related to a claim whether or not such issue is specifically referred to in the Notice of Application.
73.09Responding Document of Respondent
99-71
(1)Subject to paragraph (1.1), a respondent who wishes to oppose an application or to assert a right or claim shall file a responding document together with a copy for the applicant and each person against whom the respondent asserts a right or claim within 20 days after service of the Notice of Application and the administrator shall forthwith cause a copy of the responding document to be served on the applicant.
(1.1)Where subsection 38(2) or 52(3) of the Family Services Act applies to an application, a respondent who wishes to oppose the application or to assert a right or claim shall file a responding document together with a copy for the applicant and each person against whom the respondent asserts a right or claim no later than five days before the hearing of the application or as directed by the court, and the administrator shall cause a copy of the responding document to be served on the applicant without delay.
(2)Where a respondent in his or her responding document asserts a right or claim against a person other than the applicant, the administrator shall
(a) issue a Notice of Claim by Respondent (Form 73D), and
(b) cause to be served on that person a copy of the Notice of Claim by Respondent.
(3)The court may refuse to hear a respondent’s claim if the claim has not been brought promptly or if the hearing of the applicant’s claim would be delayed unduly.
90-20; 98-37; 99-71; 2022-85
73.10Service of Affidavits
A person who intends to give affidavit evidence at a hearing shall file the affidavit with the administrator at least 5 days before the date set for the hearing and the administrator shall cause a copy of the affidavit to be served on the applicant and on each other person who was served with notice of the hearing.
90-20
73.11Financial Statements and Income Information
98-37
(1)Where an applicant claims child support or a parenting order,
(a) where income information of the applicant is required under the child support guidelines under the Family Law Act, the applicant shall file with the Notice of Application a Financial Statement and such income information,
(b) the respondent shall, not more than 20 days after service of the Notice of Application, file a Financial Statement and any income information required under the child support guidelines under the Family Law Act, and
(c) where as a result of a claim made by the respondent the applicant’s income information is required under the child support guidelines under the Family Law Act, the applicant shall, not less than 2 days before the hearing, file a Financial Statement, if not previously filed, and such income information.
(1.1)Where an applicant claims support for themselves or for a dependant who is not a child,
(a) the applicant shall file with the Notice of Application a Financial Statement and a copy for each party, and
(b) the respondent shall file a Financial Statement and a copy for each party not more than 20 days after service of the Notice of Application.
(2)Where a respondent claims child support, support for a dependant who is not a child or a parenting order,
(a) the respondent shall file with the responding document a Financial Statement and any income information required under the child support guidelines under the Family Law Act and copies of them for each party, and
(b) the applicant shall, not less than 2 days before the hearing, file
(i) a Financial Statement and a copy for each party, and
(ii) where the respondent’s claim pertains to child support, the income information required under the child support guidelines under the Family Law Act.
(3)If a party fails to file a Financial Statement or income information required under this subrule, the court may on motion without notice or on its own motion, order that it be filed within such time and on such terms as may be just.
(4)Where a party fails to comply with paragraph (1), (1.1) or (2) or with an order under paragraph (3),
(a) the court may dismiss the party’s application or strike out the party’s claim under paragraph (2),
(b) a judge may make a contempt order against the party, and
(c) the court may draw an inference against the party and impute income to the party in such amount as it considers appropriate.
(5)The administrator shall forthwith cause a copy of a Financial Statement and income information required under this subrule to be served on each party.
(6)Where public disclosure of information contained in a Financial Statement or income information required under this subrule would probably create hardship the court may order that the Financial Statement or income information and any cross-examination upon it be treated as confidential and not form part of the public record.
(7)The Minister of Social Development is not required to file a Financial Statement.
90-20; 98-37; 99-71; 2000, c.26, s.261; 2000, c.44, s.8; 2010-135; 2016, c.37, s.90; 2019, c.2, s.79; 2021-17
73.12Discussions and Meetings before Hearing
(1)The parties to a proceeding shall hold such informal discussions as are reasonably possible for the purpose of resolving or simplifying the issues in dispute.
(2)A judge or a person designated by a judge may convene and preside at a meeting of the parties for the purpose of resolving or simplifying the issues.
(3)The judge or person who presides at a meeting convened under paragraph (2) shall
(a) present to the parties for their approval a memorandum of the matters agreed to and of the outstanding issues, and
(b) shall file the approved memorandum.
(4)A judge who presides at a meeting under paragraph (2) shall not preside at the hearing without the consent of the parties.
73.13Summons to Witness
(1)A party may issue or require the administrator to issue a Summons to Witness (Form 55A).
(2)A party requiring the administrator to issue a Summons to Witness shall deposit with the administrator the proper attendance money as prescribed in Tariff “D” of Rule 59 and the administrator shall cause the Summons to Witness to be served on the witness.
90-20
73.14Adjournments
85-5
(1)The court may adjourn a hearing indefinitely or to a definite time and place.
(2)Where the court has adjourned a hearing indefinitely it shall, on motion by any party without notice, set a date for resumption of the hearing.
(3)The administrator shall cause every other party to be served with any order setting the date for resumption of a hearing.
90-20
73.15Interim Orders
99-71
(1)The court may make an interim order with respect to any matter in issue.
(2)A Notice of Motion for an interim order may be served with a Notice of Application or a responding document or at any time thereafter.
(3)Subject to paragraph (4), a Notice of Motion for an interim order shall set out the precise relief sought, including the amount of support claimed for each person.
(4)Where a motion under paragraph (2) includes a motion for an interim order for child support, Rule 73.17.3 applies with the necessary modifications.
(5)Where a party fails to comply with an interim order and the court is satisfied that the party is able to comply with the order, the court may postpone the hearing of the application or strike out any pleading or affidavit of the party in default.
99-71; 2021-17
73.16Filing of Support Agreements
2021-17
(1)An agreement filed under section 79 of the Family Law Act shall
(a) be in writing,
(b) be signed by the persons to be bound,
(c) be witnessed,
(d) state the name of the person to whom payment is to be made,
(e) set out the payment due under the agreement, and
(f) state when and how payments are to be made.
(2)An Agreement may be filed with the court under section 79 of the Family Law Act by filing the original or a duplicate original with the administrator.
90-20; 2021-17
73.17Adoptions
(1)An application under Part V of the Family Services Act for an adoption order shall be in the prescribed form and shall be filed with the court together with
(a) an affidavit of the applicant verifying the facts stated in the application;
(b) a certificate of registration of birth of the person to be adopted;
(c) where the applicant is married, a certified copy of the marriage certificate;
(d) where the child is in the care of the Minister of Social Development under a guardianship or custody agreement, a copy of the agreement;
(e) where the child is in the care of the Minister of Social Development under a guardianship or custody order, a certified copy of the order;
(f) where the person to be adopted is under the age of majority,
(i) the written consent of the parent verified by an affidavit of a subscribing witness, or
(ii) where the guardianship of the child to be adopted has been transferred to the Minister of Social Development by a guardianship agreement or a guardianship order, the written consent of the Minister of Social Development verified by an affidavit of a subscribing witness;
(g) where the person to be adopted is 12 years of age or over, the written consent of the person verified by an affidavit of a subscribing witness;
(h) where the applicant requests a change in the given names of a child 12 years of age or over, the written consent of the child verified by an affidavit of a subscribing witness; and
(i) where the applicant is the spouse of the parent of the child and requests a change in the surname or given names of the child, the written consent of the parent verified by an affidavit of a subscribing witness.
(2)Where a natural parent wishes to preserve the right of the child to inherit from him or his kindred, he shall sign a statement to that effect which shall be verified by an affidavit of a subscribing witness, and the statement and affidavit shall be filed with the application.
(3)A child shall be identified in an adoption order by his or her given names in full followed by the first letter of his or her surname and his or her birth registration number, if any.
(4)The Registrar shall affix the seal of the Court to an adoption order.
90-20; 2000, c.26, s.261; 2008, c.6, s.30; 2016-1; 2016, c.37, s.90; 2019, c.2, s.79
73.17.1Marital Property, Parenting Order or Contact Order Applications
2021-17
(1)If an application, not included in any other proceeding except an application for a parenting order or a contact order, as the case may be, is made under the Marital Property Act or an application for a parenting order or a contact order is made under the Family Law Act, it shall be commenced by issuing a Notice of Application (Form 73AA).
(2)Where the proceeding is commenced under the Marital Property Act, the Notice of Application shall be accompanied by the documents set out in Rule 74.02.
(3)If a proceeding is commenced for a parenting order or a contact order under the Family Law Act, the Notice of Application shall be accompanied by the documents set out in Rule 73.03.
(4)A Notice of Application is issued when the original, a copy and any filing fee prescribed by these rules
(a) are delivered to the office of the administrator of the Family Division in the judicial district in which the proceeding is to be commenced, or
(b) are mailed by prepaid registered post and addressed to the administrator of the Family Division of the judicial district in which the proceeding is to be commenced.
(5)Upon receiving the Notice of Application, a copy and the filing fee prescribed by these rules, the administrator shall
(a) assign a court file number to the proceeding,
(b) enface on the original and copy of the Notice of Application
(i) the court file number, and
(ii) the date of issue,
(c) return the original to the applicant, and
(d) retain and file the copy.
(6)The Notice of Application, any Financial Statements, any income information required under the child support guidelines under the Family Law Act and any affidavits to be used by the applicant at the hearing shall be served on each respondent in the manner prescribed by Rule 18 and within 6 months after the Notice of Application is issued.
(7)A respondent who wishes to oppose such an application or to assert a right or claim shall cause to be served on the applicant a responding document in the manner prescribed by Rule 18, within 20 days after the service of the Notice of Application.
(8)If the applicant’s claim is for support or a parenting order, the respondent shall, within 20 days after service of the Notice of Application, serve on the applicant a Financial Statement and any income information required under the child support guidelines under the Family Law Act.
(9)Where the applicant’s claim is under the Marital Property Act, the respondent shall serve with the responding document the documents required by Rule 74.02.
(10)After the time for serving a responding document has expired and all pre-trial proceedings have been completed, any party who is not in default under these rules or under an order of the court may apply to the court for a trial date and shall deliver to the administrator a copy of the trial record.
(11)The trial record shall contain:
(a) an index,
(b) a copy of all documents served inter-parties,
(c) a copy of any demand or order for particulars and the particulars delivered thereto,
(d) a copy of any Request to Admit Documents and a copy of the response thereto,
(e) a copy of any Request for Admission of Facts and a copy of the response thereto,
(f) a copy of any notice of motion to be made at trial,
(g) a Certificate of Readiness (Form 47B) with such variations as the circumstances may require, and
(h) a copy of any notice or order respecting the trial or any order made during the pre-trial conference.
(12)The front cover of the trial record shall set out
(a) the name of the solicitor for each party to the proceeding, the firm name, if applicable, his or her address for service, his or her e-mail address, if any, his or her business telephone number and his or her fax number, if any, and
(b) the names of any parties to the proceeding not represented by a solicitor, their addresses for service, their e-mail addresses, if any, and their telephone numbers, including their fax numbers, if any.
(13)Upon receipt of the trial record, the administrator, in consultation with the court, shall immediately give the parties to the proceeding an option of three trial dates, the earliest not to be less than 20 days therefrom. Should the parties fail to agree within 24 hours of such advice on a trial date, the latest date so given shall be fixed by the court as the trial date.
(14)Every other subrule of this rule shall apply to applications made under this subrule except where inconsistent herewith.
85-5; 90-20; 98-37; 99-71; 2008-2; 2012-86; 2021-17
73.17.2Motion to Vary, Discharge or Suspend Support Order, Parenting Order or Contact Order
98-37; 2021-17
(1)Subject to Rule 73.17.3, a motion to vary, discharge or suspend a support order or a parenting order shall be made by Notice of Motion (Form 37A).
(2)On a motion under paragraph (1),
(a) the party giving notice shall serve a Financial Statement with the Notice of Motion, and
(b) the party served with the Notice of Motion shall serve the party giving notice with a Financial Statement at least 2 days before the hearing of the motion.
(3)A motion to vary, discharge or suspend a contact order shall be made by Notice of Motion (Form 37A).
98-37; 2021-17
73.17.3Motion to Vary, Discharge or Suspend Child Support Order
98-37; 2000, c.44, s.8; 2021-17
(1)Where a motion under Rule 73.17.2 includes a motion to vary, discharge or suspend a child support order, the motion shall be made by Notice of Motion (Form 72U).
(2)A Notice of Motion shall
(a) state the names and ages of the children, including children at or over the age of majority, to whom the support order applies,
(b) state the relief sought,
(c) state the grounds to be argued, and
(d) list the documentary evidence to be used at the hearing of the motion.
(3)A Notice of Motion shall be accompanied by
(a) any affidavits to be used at the hearing by the person giving notice, and
(b) where income information is required under the child support guidelines under the Family Law Act, such income information and a Financial Statement.
(4)A Notice of Motion, together with the affidavits, income information and Financial Statement required under paragraph (3), shall be filed with the administrator of the Family Division in the judicial district in which the motion is to be made.
(5)At least 25 days before the date of the hearing, the party giving notice shall serve the other party with the Notice of Motion, affidavits, income information and Financial Statement.
(6)Within 20 days after being served, the party served with the Notice of Motion shall file with the administrator and serve on the party giving notice
(a) any affidavits to be used at the hearing by the party served with the Notice of Motion,
(b) where income information of the party served with the Notice of Motion is required under the child support guidelines under the Family Law Act, such income information, and
(c) where the party served with the Notice of Motion wishes to oppose the variation, discharge or suspension of the child support order or to assert a right or claim, a responding document.
(7)Where, as a result of a responding document under clause (6)(c), the party served with the responding document is required to provide income information under the child support guidelines under the Family Law Act, the party served with the responding document shall file with the administrator and serve on the other party such income information and a Financial Statement at least 3 days before the date of the hearing.
(8)Except as otherwise provided in this subrule, every other subrule of this rule and Rules 37 and 39 apply with the necessary modifications to a motion under this subrule.
98-37; 99-71; 2000, c.44, s.8; 2021-17
73.17.3.1Motion on Change in Place of Residence or Relocation
2021-17
(1)For the purpose of subsection 59(4) or 60(6) of the Family Law Act, a person who has parenting time or decision-making responsibility in respect of a child and who intends to change their place of residence or to undertake a relocation, as the case may be, may make a motion without notice seeking an order for
(a) an exemption from the requirement to give notice of a change in residence or of a relocation, or
(b) a modification to the requirement to give notice of a change in residence or of a relocation.
(2)For the purpose of subsection 66(3) of the Family Law Act, a person who has contact with a child under a contact order and who intends to change their place of residence may make a motion without notice seeking an order for 
(a) an exemption from the requirement to give notice of a change in residence, or
(b) a modification to the requirement to give notice of a change in residence.
(3)A motion under paragraph (1) or (2) shall be made by Notice of Motion (Form 37A) accompanied by a supporting affidavit.
(4)The person giving notice shall file the Notice of Motion and the affidavit with the administrator of the Family Division in the judicial district where the person habitually resides.
(5)A person who has parenting time or decision-making responsibility in respect of a child and who objects to a relocation may state their objection in
(a) a motion to vary, discharge or suspend a parenting order, or
(b) an application for a parenting order.
(6)A motion under clause (5)(a) shall be made by filing the following: 
(a) a Notice of Motion (Form 37A) accompanied by a supporting affidavit; and
(b) a copy of the notice of relocation.
(7)An application under clause (5)(b) shall be issued by filing the following: 
(a) a Notice of Application (Form 73A) accompanied by a supporting affidavit; and
(b) a copy of the notice of relocation.
(8)A Notice of Motion or a Notice of Application, as the case may be, and any accompanying documents referred to in paragraph (6) or (7) shall be filed with the administrator of the Family Division in the judicial district where one of the parties habitually resides.
(9)A party who files a Notice of Motion or a Notice of Application, as the case may be, shall serve a copy of it and any accompanying documents on the other persons who have parenting time and decision-making responsibilities with respect to the child in the manner prescribed by Rule 18 for the service of an originating process.
(10)A party served with a Notice of Motion or a Notice of Application, as the case may be, shall serve on the party who filed it an affidavit in response at least five days before the hearing of the motion or the application.
2021-17
73.17.4Consent Order
98-37
(1)Despite Rule 73.17.3, if the parties consent to the variation, discharge or suspension of a child support order, they shall file, with the administrator of the Family Division in the judicial district in which one of the parties habitually resides, a consent order signed by both parties and accompanied by a copy of the support order and any income information required under the child support guidelines under the Family Law Act.
(2)The administrator shall submit a consent order to a judge for consideration.
(3)The judge may do one or more of the following:
(a) make an order;
(b) direct that further evidence be presented; and
(c) direct the administrator to set a date and time for a hearing of the oral evidence.
98-37; 2000, c.44, s.8; 2021-17
73.18Transfer of Proceedings
85-5
(1)Where a transfer of a proceeding is ordered under subsection 11.2(3), 11.2(4) or 11.2(5) of the Judicature Act, the judge shall give directions for the transfer and may order costs.
(2)A transfer shall not be ordered under subsection 11.2(5) of the Judicature Act without the consent of a judge of the Family Division.
73.19Enforcement
(1)If an amount ordered to be paid under the Family Law Act, the Family Services Act or the Child and Youth Well-Being Act is not paid or security required to be filed under the Family Law Act, the Family Services Act or the Child and Youth Well-Being Act is not filed, the court may issue an Order to Attend (Form 73E) or a Warrant to Apprehend (Form 73B).
(2)Where a person does not appear in response to an Order to Attend issued under paragraph (1) the Court may issue a Warrant to Apprehend (Form 73B).
90-20; 97-78; 2021-17; 2023, c.36, s.21
73.20When Fees Not Payable
97-78
A party is not required to pay fees to the administrator or a sheriff, where the party is a recipient of assistance under the Family Income Security Act or legal services in a proceeding under this Rule are paid for under a legal aid program.
90-20; 97-78