Bill 61 - An Act to Amend the Support Enforcement Act

BILL 61

An Act to Amend the Support Enforcement Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Support Enforcement Act, chapter S-15.5 of the Acts of New Brunswick, 2005, is amended in the definition “beneficiary” by repealing paragraph (a) and substituting the following:

(a) a person in whose favour a support order has been made and who is a party to the support order, or

2 Section 5 of the Act is amended

(a) in paragraph (2)(c) by striking out “to or for the benefit of a person named in the support order” and substituting “to the beneficiary”;

(b) by adding after subsection (3) the following:

5(4) Within 8 days after a support order is filed under subsection (1), a beneficiary may request that the support order not be filed with the Director, and if a beneficiary so requests,

(a) the Director shall not enforce the support order in accordance with this Act, and

(b) the support order shall be deemed not to have been filed with the Director.

3 Section 7 of the Act is amended

(a) by adding after subsection (3) the following:

7(3.1) An agreement by the parties to a support order that is filed with the Director to avoid or prevent the applicability of this Act or any provision of it to the enforcement of the support order is void and of no force or effect.

(b) in paragraph (4)(c) by striking out “to or for the benefit of a person named in the support order” and substituting “to the beneficiary”;

7(4.1) In the case of a support order filed under subsection 5(1), the Director shall only serve a payer with notice under paragraph (4)(b) after the 8 day period referred to in subsection 5(4) has elapsed.

7(4.2) If a payer or beneficiary resides outside the Province, the Director’s failure to serve that person under subsection (4) shall not prevent the Director from enforcing the support order in accordance with this Act nor does it affect the validity of any action taken by the Director under this Act.

(d) by repealing subsection (5) and substituting the following:

7(5) If a support order is filed with the Director and an application to vary the support order is made to the court, the court administrator shall provide the Director with a copy of the application.

4 Section 8 of the Act is amended

(a) in subsection (1) by striking out the portion preceding paragraph (a) and substituting the following:

8(1) Subject to subsection (1.1), a payer shall provide the Director with the information required by regulation and shall

(b) by adding after subsection (1) the following:

8(1.1) A payer shall comply with subsection (1) within the following time periods:

(a) if a support order is filed under subsection 5(1), within 22 days after the support order is filed with the Director;

(b) if a support order is filed under subsection 5(2), within 14 days after the support order is filed with the Director; or

5 Section 9 of the Act is amended

(a) in subsection (1)

(i) in paragraph (f) of the English version by striking out “or” at the end of the paragraph;

(ii) in paragraph (g) by striking out the period at the end of the paragraph and substituting a semicolon followed by “or”;

(iii) by adding after paragraph (g) the following:

(h) a circumstance prescribed by regulation.

(b) by repealing subsection (2) and substituting the following:

9(2) A beneficiary or a payer may apply to the Director to withdraw a support order filed with the Director.

9(2.1) If the Director receives an application under subsection (2), the Director shall serve notice on the other party to the support order of the following:

(a) the beneficiary or payer, as the case may be, has applied to withdraw the support order; and

(b) the support order will be withdrawn unless the party notifies the Director in writing within 14 days that he or she opposes the support order’s withdrawal.

9(2.2) If the Director does not receive written notification under paragraph (2.1)(b), the Director shall withdraw the support order.

(d) in subsection (3) by striking out “to or for the benefit of a person named in a support order” and substituting “to a beneficiary”;

(e) in subsection (5) by striking out “paragraph (1)(b)” and substituting “subsection (1)”;

(f) in paragraph (7)(c) by striking out “to or for the benefit of a person named in the support order” and substituting “to the beneficiary”;

(g) by repealing subsection (8) and substituting the following:

9(8) Notwithstanding that a support order has been withdrawn under this section, the Director may enforce the payment of the following amounts in relation to the support order:

(a) an amount that is owed to the Minister of Family and Community Services under the support order, if an assignment has been made under subsection 116(5) of the Family Services Act;

(b) any other amount that is owed to the Province; and

(c) an amount that is owed to an appropriate authority in a reciprocating jurisdiction as defined in the Interjurisdictional Support Orders Act.

(h) by adding after subsection (8) the following:

9(9) In order to enforce the payment of an amount under subsection (8), the Director may exercise any authority or use any power that he or she may exercise or use with respect to the enforcement of a support order that is filed with the Director.

6 Subsection 10(3) of the Act is amended by striking out “received from the payer pursuant to such a support order” and substituting “received on account of such a support order”.

7 The Act is amended by adding after section 10 the following:

Payments before support order filed

10.1(1) If a payment is due under a support order before it is filed with the Director under subsection 5(1) and the payment is not made to the Director, the Director shall record the amount of the payment as an outstanding payment under the support order.

10.1(2) Notwithstanding subsection (1), if a payer makes a payment under a support order to a beneficiary before it is filed with the Director under subsection 5(1), the Director shall credit the amount of the payment to the account respecting that support order if

(a) the beneficiary confirms in writing to the Director that the payment was made, or

(b) the payer provides evidence satisfactory to the Director that the payment was made.

10.1(3) Before a support order is filed with the Director under subsection 5(1) and before the period referred to in subsection 5(4) has elapsed, a payer may make payments under the support order to the Director.

10.1(4) A payment made to the Director under subsection (3) shall be held by the Director until the support order is filed with the Director under subsection 5(1), at which time the payment shall be dealt with in accordance with section 10.

10.1(5) If a payment is made under subsection (3), the Director shall return the payment to the payer in the following circumstances:

(a) the support order is not filed with the Director within 90 days after the payer makes the payment; or

(b) the beneficiary makes a request under subsection 5(4) that the support order not be filed with the Director.

Determination of arrears

10.2(1) In this section, “support order” means

(a) a support order filed under subsection 5(2) or (3), or

(b) an agreement filed under section 6.

10.2(2) When a support order is filed with the Director, the beneficiary may complete a signed declaration stating the amount of arrears that are owing under the support order at the time the support order is filed.

10.2(3) If a beneficiary files a declaration under subsection (2), the Director shall serve a copy of the declaration on the payer.

10.2(4) Within 14 days after being served with a declaration under subsection (3), a payer shall file one of the following with the Director:

(a) his or her written agreement with the amount of arrears stated in the declaration; or

(b) his or her written dispute of the amount of arrears stated in the declaration.

10.2(5) If the Director receives a written agreement under paragraph (4)(a), the amount of the arrears owing under the support order as stated in the declaration filed under subsection (2) shall be recorded on the account respecting that support order.

10.2(6) If the Director receives a written dispute under paragraph (4)(b), the Director shall direct a court administrator to hold a hearing to determine the amount of arrears owing under the support order.

10.2(7) If the Director does not receive a response under subsection (4), the payer shall be deemed to have agreed with the amount of arrears stated in the declaration.

10.2(8) At a hearing under subsection (6), the parties shall be entitled to be heard, and the court administrator shall do the following:

(a) consider all relevant evidence presented by the parties; and

(b) determine the amount of arrears owing under the support order or refer the matter to the court for a determination.

10.2(9) Within 30 days after a court administrator has made a determination under paragraph (8)(b), the payer or the beneficiary may apply to the court in accordance with the regulations to have the determination reconsidered by the court and an order issued by the court respecting the amount of arrears owing under the support order.

10.2(10) If an application is not made under subsection (9), the court administrator shall provide a copy of his or her determination under paragraph (8)(b) to the Director, who shall record the amount of the arrears owing under the support order on the account respecting that support order.

Discretion to enforce lesser amount

10.3(1) The Director may enforce a lesser amount of support than that set out in a support order if the following conditions are fulfilled:

(a) the support order was made in accordance with the table set out in the applicable child support guidelines;

(b) the parties to the support order agree to the following:

(i) that a lesser amount of support be enforced; and

(ii) that the support obligation under the support order has terminated with respect to a child;

(d) the support order states the following:

(i) the number of children to which it applies;

(ii) the payer’s income; and

(iii) the total amount of support determined in accordance with the table set out in the applicable child support guidelines; and

(e) the lesser amount of support is set in accordance with the table set out in the applicable child support guidelines.

10.3(2) If the Director enforces a lesser amount of support under subsection (1), the Director shall only resume enforcing the amount set out in the support order or enforce any arrears that accrued under the support order if there is a court order directing the Director to do so and, in the case of arrears, the order sets out the amount of arrears that are owed.

10.3(3) The Director may temporarily enforce a lesser amount of support than that set out in a support order if a circumstance prescribed by regulation exists.

10.3(4) Subject to subsection (5), if the Director enforces a lesser amount of support under subsection (3), arrears shall accrue under the support order for the amount of support that the Director does not enforce.

10.3(5) If the Director enforces a lesser amount of support under subsection (3), the beneficiary may consent in writing to arrears not accruing under the support order for the amount of support that the Director does not enforce.

10.3(6) If the Director enforces a lesser amount of support under subsection (3), the Director shall require a court order directing the Director to enforce arrears that accrued or would have accrued under the support order and stating the amount of arrears that are owed in order to enforce the payment of arrears in the following circumstances:

(a) the beneficiary gave his or her consent under subsection (5); or

(b) the parties to the support order agreed to the enforcement of a lesser amount of support under subsection (3).

Discretion to make payment to third party

10.4 Notwithstanding subsection 10(2), the Director may pay any amount received on account of a support order to the following people on the written direction of the beneficiary:

(a) a person having the care and control of a child named in the support order, if the following conditions are satisfied:

(i) that person notifies the Director that he or she has the care and control of the child; and

(ii) the Director confirms to his or her satisfaction that the child is residing with that person; or

(b) a child named in the support order, if the child no longer resides with the beneficiary and is enrolled at a post-secondary educational institution.

8 Section 16 of the Act is amended

(a) in paragraph (1)(b) by striking out “paragraph 17(2)(a) or subsection 17(6)” and substituting “paragraph 17(2)(a) or 17(6)(a) or subsection 17(6.2)”;

(b) by repealing subsection (2) and substituting the following:

16(2) Any amount received pursuant to a payment order shall be applied against any amount owed in relation to the support order to which the payment order relates, including interest, security or fees imposed under this Act.

9 Section 17 of the Act is amended

(a) by repealing subsection (6) and substituting the following:

17(6) If the obligation of a garnishee to a payer ceases, the garnishee shall, within 10 days after the obligation ceases, notify the Director in writing, and the Director shall do one of the following:

(a) revoke the payment order by serving a notice of revocation on the garnishee; or

(b) suspend the payment order by serving notice of the suspension on the garnishee.

(b) by adding after subsection (6) the following:

17(6.1) A notice under paragraph (6)(b), shall include instructions to the garnishee respecting when or the circumstances under which the garnishee’s obligations under the payment order shall resume.

17(6.2) The Director may revoke a payment order by serving a notice of revocation on a garnishee if the Director is of the opinion that it would be appropriate to revoke the payment order having regard to all of the circumstances.

10 The Act is amended by adding after section 17 the following:

Amendment of payment order

17.1 The Director may amend a payment order in the following circumstances:

(a) the amount payable under a support order changes;

(b) the schedule of payments under a support order changes; or

(c) the Director is of the opinion that it would be appropriate to amend the payment order having regard to all of the circumstances.

11 Subsection 18(1) of the Act is repealed and the following is substituted:

18(1) If a garnishee fails or refuses to comply with a payment order, the Director may apply to the court in accordance with the regulations for the following orders:

(a) an order requiring the garnishee to pay the amount that is unpaid under the payment order; and

(b) an order requiring the garnishee to comply with the payment order.

12 Section 26 of the Act is amended

(a) in subsection (1)

(i) in the portion preceding paragraph a) of the French version by striking out “dans les cas suivants” and substituting “si les conditions suivantes son réunies”;

(ii) by repealing paragraph (b) and substituting the following:

(b) the arrears owing under the support order are for an amount in excess of the amount prescribed by regulation,

(b) in subsection (4) of the French version in the portion preceding paragraph a) by striking out “d’un payeur”;

(a) at the time the Director gave the direction under subsection (1), the payer was not in default under the support order or did not owe arrears under the support order in excess of the amount prescribed by regulation,

(d) by repealing subsection (9);

(e) by repealing subsection (10).

13 Section 27 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

27(1) The Director may report a payer to a credit reporting agency in accordance with subsection (2), if

(a) the payer is in default under a support order filed with the Director,

(b) the arrears owing under the support order are for an amount in excess of the amount prescribed by regulation, and

(b) by adding after subsection (1) the following:

27(1.1) Before reporting a payer to a credit reporting agency, the Director shall serve the payer with notice that unless the payer makes arrangements satisfactory to the Director to comply with the support order within 30 days after service of the notice, the Director may report the payer to a credit reporting agency.

(c) in subsection (2) in the portion preceding paragraph (a) by striking out “subsection (1)” and substituting “subsection (1.1)”;

(d) by repealing subsection (4) and substituting the following:

27(4) Notwithstanding that the requirements of subsection (1) are satisfied, the Director shall not report a payer to a credit reporting agency in accordance with subsection (2) within 90 days after a support order is filed with the Director.

14 Paragraph 28(2)(c) of the Act is repealed and the following is substituted:

15 Paragraph 29(2)(c) of the Act is repealed and the following is substituted:

16 Paragraph 30(5)(c) of the Act is amended by striking out “to or for the benefit of a person named in the support order” and substituting “to the beneficiary”.

17 Subparagraph 36(3)(b)(ii) of the Act is amended by striking out “to or for the benefit of a person named in a support order” and substituting “to a beneficiary”.

18 Subsection 37(3) of the Act is repealed and the following is substituted:

37(3) If the Director has realized on security under subsection (2), the Director may do the following:

(a) require the payer to file further security under this section; or

(b) use a late payment received under a support order to replenish the security.

19 The Act is amended by adding after section 37 the following:

Default dependent enforcement mechanisms

37.1 If the Director’s authority to use an enforcement mechanism under this Part is conditional upon the payer being in default under a support order, the Director may exercise his or her authority if the default occurred before or after the commencement of this Act.

20 Section 39 of the Act is amended by adding after subsection (5) the following:

39(6) No person shall charge the Director a fee for anything that the Director requires the person to do in furtherance of the Director’s duties and responsibilities under this Act.

21 The Act is amended by adding after section 39 the following:

Clarification of support order provisions

39.1(1) If the provisions of a support order result in a conflict as to how much support is owed by the payer in a 12-month period, the provision which results in the payer owing the lesser amount of support shall be deemed to prevail.

39.1(2) If subsection (1) applies to a support order, any excess amount that was paid by a payer as a result of the support order’s conflicting provisions may be dealt with by the Director in accordance with subsection 40(2).

22 Section 40 of the Act is amended by adding after subsection (2) the following:

40(3) Notwithstanding that a support order includes a schedule for the payment of arrears or the suspension of payments towards arrears, money received from a prescribed source on account of a support order may be credited to reduce the total amount of arrears owing under the support order.

23 Section 44 of the Act is amended by adding after subsection (2) the following:

44(3) If a support order is registered in a reciprocating jurisdiction as defined in the Interjurisdictional Support Orders Act under legislation that is substantially similar to that Act, service on an appropriate authority as defined in that Act shall be deemed to be service on the party to the support order who resides in that jurisdiction.

24 Subsection 49(4) of the French version of the Act is amended by striking out “de façon lisible”.

25 Subsection 52(3) of the Act is repealed and the following is substituted:

52(3) A person who violates or fails to comply with an order of the court under any of the following provisions commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence:

(a) subsection 13(2);

(b) subsection 14(3);

(d) subsection 30(3).

26 Section 53 of the Act is amended

(a) by repealing paragraph (k) and substituting the following:

(k) respecting the withdrawal of a support order filed with the Director, including the manner of applying for the withdrawal and circumstances in which a support order may be withdrawn;

(b) by adding after paragraph (l) the following:

(l.1) prescribing circumstances in which the Director may enforce a lesser amount of support than that set out in a support order for the purposes of subsection 10.3(3);

(t) prescribing the amount of arrears under a support order that a payer must owe before the Director may act under subsection 26(1) or 27(1);

(d) by repealing paragraph (w) and substituting the following:

(w) prescribing the amount of arrears under a support order that a payer must owe before a corporation is jointly and severally liable under section 28 or 29;

(e) by adding after paragraph (dd) the following:

(dd.1) prescribing sources for the purposes of subsection 40(3);

EXPLANATORY NOTES

Section 1

The existing provision is as follows:

“beneficiary” means (bénéficiaire)

(a) a person in whose favour a support order has been made, or ...

Section 2

(a) The existing provision is as follows:

5(2) The following persons may at any time file a support order with the Director: ...

(c) the Minister of Family and Community Services, if assistance or support is being provided by that Minister to or for the benefit of a person named in the support order.

(b) New provision.

Section 3

(a) New provision.

(b) The existing provision is as follows:

7(4) The Director shall serve notice on the following persons that a support order has been filed: ...

(c) the Minister of Family and Community Services, if the Director has knowledge that assistance or support is being provided by that Minister to or for the benefit of a person named in the support order.

(d) The existing provision is as follows:

7(5) An application to vary a support order filed with the Director shall be served on the Director.

Section 4

(a) The existing provision is as follows:

8(1) Within 14 days after a support order has been filed with the Director, the payer shall provide the Director with the information required by regulation and shall

(b) New provision.

Section 5

(a)

i) Consequential amendment.

ii) Consequential amendment.

iii) New provision.

(b) The existing provision is as follows:

9(2) The Director shall, within the time period prescribed by regulation, withdraw a support order filed with the Director in the following circumstances:

(a) the beneficiary has applied to withdraw the support order, except in circumstances where the payer filed the support order; and

(b) the payer has applied to withdraw the support order, if the payer filed the support order and the beneficiary has consented in writing to the withdrawal.

(d) The existing provision is as follows:

9(3) Notwithstanding subsection (2), if the Minister of Family and Community Services is providing assistance or support to or for the benefit of a person named in a support order, that Minister is the only person who may apply to the Director to withdraw the support order.

(e) Consequential amendment.

(f) The existing provision is as follows:

9(7) The Director shall serve notice on the following persons that a support order has been withdrawn: ...

(g) The existing provision is as follows:

9(8) Notwithstanding that a support order has been withdrawn under this section, if an assignment has been made under subsection 116(5) of the Family Services Act, the Director may enforce the payment of any amount that is owed to the Minister of Family and Community Services under the support order.

(h) New provision.

Section 6

The existing provision is as follows:

10(3) Notwithstanding subsection (2), if there is more than one support order filed with the Director with respect to the same payer, the Director may, in his or her discretion, apportion any payments received from the payer pursuant to such a support order amongst the beneficiaries under all or some of the support orders.

Section 7

New provisions.

Section 8

(a) Consequential amendment.

(b) The existing provision is as follows:

16(2) Any amount received pursuant to a payment order shall be applied against the amount payable under the support order to which the payment order relates.

Section 9

(a) The existing provision is as follows:

17(6) If the obligation of a garnishee to a payer ceases, the garnishee shall, within 10 days after the obligation ceases, notify the Director in writing, and the Director shall revoke the payment order by serving a notice of revocation on the garnishee.

(b) New provisions.

Section 10

New provision.

Section 11

The existing provision is as follows:

18(1) If a garnishee fails or refuses to comply with a payment order, the Director may apply to the court in accordance with the regulations for an order requiring the garnishee to pay the amount that is unpaid under the payment order.

Section 12

(a)

i) A correction is made in the French version.

ii) The existing provision is as follows:

26(1) The Director may direct the Registrar of Motor Vehicles to revoke the driver’s licence and suspend the driving privileges of a payer if ...

(b) the default is for an amount in excess of the amount prescribed by regulation,

(b) A correction is made in the French version.

26(7) The court may make an order under subsection (6) if the court is satisfied that

(a) the payer is not in default under the support order in an amount in excess of the amount prescribed by regulation,

(d) The existing provision is as follows:

26(9) An agreement by the parties to a support order to avoid or prevent the applicability of this section to the enforcement of the support order is void and of no force or effect.

(e) The existing provision is as follows:

26(10) This section applies to a default under a support order that occurred before or after the commencement of this section.

Section 13

(a) The existing provision is as follows:

27(1) If a payer is in default under a support order filed with the Director in excess of the amount prescribed by regulation, the Director may serve notice on the payer that if the payer does not make arrangements satisfactory to the Director to comply with the support order within 30 days after service of the notice, the Director may report the payer to a credit reporting agency in accordance with subsection (2).

(b) New provision.

(d) The existing provision is as follows:

27(4) Notwithstanding that a payer is in default under a support order filed with the Director in excess of the amount prescribed by regulation, the Director shall not report the payer to a credit reporting agency in accordance with subsection (2) within 90 days after the support order is filed with the Director.

Section 14

The existing provision is as follows:

28(2) A corporation shall be jointly and severally liable with a payer for payments required under a support order if ...

Section 15

The existing provision is as follows:

29(2) The Director, if a support order is filed with the Director, or a beneficiary, if a support order is not filed with the Director, may apply to the court for an order that a corporation is jointly and severally liable with a payer for payments required under a support order if ...

Section 16

The existing provision is as follows:

30(5) If a support order is not filed with the Director, the following persons may apply to the court under subsection (3): ...

(c) the Minister of Family and Community Services, if assistance or support is being provided by that Minister to or for the benefit of a person named in the support order.

Section 17

The existing provision is as follows:

36(3) An application under subsection (1) may be ex parte and may be made by the following persons: ...

(b) if a support order is not filed with the Director, ...

(ii) the Minister of Family and Community Services, if assistance or support is being provided by that Minister to or for the benefit of a person named in a support order.

Section 18

The existing provision is as follows:

37(3) If the Director has realized on security under subsection (2), the Director may require the payer to file further security under this section.

Section 19

New provision.

Section 20

New provision.

Section 21

New provision.

Section 22

New provision.

Section 23

New provision.

Section 24

A correction is made in the French version.

Section 25

The existing provision is as follows:

52(3) A person who violates or fails to comply with an order of the court under subsection 13(2), 14(3) or 30(3) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.

Section 26

Consequential amendments.