If you’re facing separation and divorce, you will have a lot of questions. Fairway has guided clients through this pivotal life change since 2006, so our mediation experts have many of the answers. Below you’ll find resources and information for commonly asked questions, explanations of terms and documents you should know, and insight into what to expect during the separation and divorce process. If you still have questions or want to request a consultation with our mediators select the office closest to your home.
A separation agreement usually accompanies a divorce application. While it is possible to apply for divorce before you have a signed separation agreement, it is not common unless there are no assets or children. The separation agreement is the agreement that captures all the decisions you and your spouse have agreed to either by consent or court order. The separation agreement will address, division of property, spousal support, child support and parenting.
The separation agreement is a culmination of all the negotiations you have made with your spouse. There are a few ways you can get to a consensus on the terms in your separation agreement.
For parties In Manitoba the person filing the divorce is referred to as the Petitioner and the other spouse is referred to as the Respondent. An uncontested divorce is called an affidavit or desk divorce. This means that the spouses are not contesting the divorce.
The marriage certificate is required for this process. A copy can be obtained by contacting the Vital Statistics Agency.
The divorce process may take approximately 3 months for the court to enter a divorce judgment from the time of filing the petition for divorce.
To file for divorce, you can either do it yourself or you can solicit a service to file for divorce for you.
The fee associated with filing divorce is $135. This fee is paid directly to the Court. There is also a $10 fee that the court will charge for the ordering of a central divorce registry certificate.
Divorce documents will be filed with the registrar of the Court of Queen’s Bench.
Spouses cannot receive a divorce simply by agreeing to it. The court must be given proof that “marriage breakdown” has occurred. Marriage breakdown is the sole ground for divorce, but it can be established in one of three ways:
Under the Family Law Maintenance there is a responsibility as a parent to support their children, even if one parent does not participate in the physical care of the child/children. Child support is the legal right of the child.
In Manitoba, parents must support a child until the child is 18 unless that child has withdrawn from the care of his/her parents and become independent. Support may be required past the age of 18 if the child is still dependent because of illness or disability or otherwise cannot become independent, most often because the child is still in school or completing his or her education at university or other post-secondary institution.
Child support orders do not automatically end when a child turns 18 or is no longer dependent, unless the support order specifically says that it does or if an application is made to the court.
Child support in Manitoba is based on the Federal Child Support Guidelines Guidelines. These guidelines follow clear rules that the courts use to set child support amounts.
The amount to be paid is based on the total annual income (before taxes) of the payor and the number of children to be supported.
Use the Federal Child Support Guidelines to calculate the amount of child support to be paid monthly.
Spouses can apply for spousal support under the Family Maintenance Act in a Manitoba court as long as one of the spouses lives in Manitoba. Spousal support can be mediated and agreed to by spouses.
There are many factors to be considered when determining the amount of spousal support to be paid.
The Support Advisory Guidelines can help spouses figure out the amount of spousal support that should be paid. The guidelines take into account the income of both spouses, length of the marriage, and whether children are involved. These guidelines are a tool, and are not legislation like the Child Support Guidelines.
MySupportCalculator.ca is a website with a support calculator and can provide an estimated dollar amount that can be adjusted based on specific circumstances.
Once an agreement is received for spousal support, parties can enroll in the Maintenance Enforcement Program(MEP).
The Maintenance Enforcement Program (MEP) in Manitoba is authorized by The Family Maintenance Act to administer the spousal support and child support obligations under the terms of an Agreement or court order. Once an agreement or court order has been registered with the program, maintenance payments that the Payer would normally remit directly to the Payee would be sent to the program. The program processes the payment, maintains an accounting record of the payment and forwards the payment to the payee.
Periodic Spousal paid under a written agreement or court order is generally tax deductible to the payer and is included in the income of the recipient. However, all child support due in a year must be paid before any deduction is allowed for spousal support. When deciding on the amount of spousal support, the court takes into account the tax benefit to the payer and the fact that the recipient will have to pay income tax on the support received.
The Family Property Act sets out the rules to divide property when you separate and/or divorce.
Under The Family Property Act in Manitoba, property that is used for family purposes, such as shelter, transportation and/or recreation, is considered a family asset.
Some examples are:
Family property that is not a family asset is considered a commercial asset. Some examples are:
One of the most important family assets is the family/matrimonial home. This is any property used as a family residence.
The Homesteads Act of Manitoba gives protection to the family home. When the home is owned by one spouse or common-law partner only, the other spouse or partner must consent in writing before the home can be sold.
If the owner spouse or common-law partner should die, the non-owning spouse is entitled to continue living in the family home for the rest of their life, even if the owner’s will leaves the home to another party.
To qualify as common-law under The Homesteads Act of Manitoba, a couple must register their relationship with the Vital Statistics Agency or they must have cohabited in a conjugal relationship for at least three years.
If the spouses or common-law partners have been living apart for at least six months, or a court has declared the non-owning spouse/partner to be mentally disordered, the court may allow the transaction to take place without the consent of that spouse/partner. In this case, the court may also attach specific conditions to the transaction to protect the non-owning spouse/partner.
Every Manitoba law that includes a definition of common-law partner includes couples that have registered their relationship with the Vital Statistics Agency, no matter how long the couple has lived together. If the common-law relationship is not registered, it is important to look at the particular law in Manitoba to find out whether or not a couple qualifies as common-law partners under that law.
Registering a common-law relationship in Manitoba is completely voluntary. Common-law couples are not required to register. A common-law couple may be registered by completing and filing a simple form with the Vital Statistics Agency.
Divorce mediation is a speedier and less costly way to dissolve a marriage than going through the courts and is mandated by the Divorce Act. With the help of a neutral third party such as Fairway, you and your partner will sit down together or perhaps apart to figure out an agreement encompassing all aspects of your divorce, from property division and spousal support to child decision making responsibilities. There are two types of divorce mediation, open and closed. Open mediation may be disclosed, while closed mediation is strictly confidential. Most family mediations are closed.
Divorce resolution through mediation requires teamwork. The mediator acts as a facilitator and guide, keeping the conversation moving forward and ensuring that all topics are covered. However, he or she will not provide legal advice. Therefore, it is best for both parties to seek legal advice from an independent lawyer before signing any final binding agreement.
Successful divorce mediation results in a non-binding, written agreement, that will be drafted into a binding separation agreement and then filed with the court. Upon court approval, it becomes legally binding. Enforcement may be sought in exactly the same way as a court order.
Divorce mediation can be challenging, as cooperation is essential. Through our proprietary process, though, which involves multiple professionals, we have helped many very contentious couples and financially complex families negotiate a fair and equitable settlement. Whenever possible, divorce resolution through mediation should be attempted, as it is much faster and less expensive than a court battle.
Deals with divorce, as well as claims for child and spousal support, and custody and access, in divorce cases. Federal Divorce Act
Deals with spousal and child support, division of property, and possession of the matrimonial home
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