Bill 62 - An Act to Amend the Interjurisdictional Support Orders Act

BILL 62

An Act to Amend the Interjurisdictional Support Orders 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 Interjurisdictional Support Orders Act, chapter I-12.05 of the Acts of New Brunswick, 2002, is amended

(a) by repealing the definition “support order” and substituting the following:

“support order” means an order or interim order, made by a court or by an administrative body, that requires the payment of support, and includes (ordonnance de soutien)

(a) the provisions of a written agreement requiring the payment of support if those provisions are enforceable in the jurisdiction in which the agreement was made as if they were contained in an order of a court or administrative body of that jurisdiction, and

(b) the recalculation by an administrative body of the payment of support for a child if the recalculation is enforceable in the jurisdiction in which the recalculation was made as if it were an order of, or were contained in an order of, a court of that jurisdiction.

(b) by adding the following definitions in alphabetical order:

“interjurisdictional application” means a support application, a support variation application or a request to register an extra-provincial or foreign order under this Act; (demande interterritoriale)

“request to locate” means a written request to locate a person for the purpose of facilitating a proceeding relating to the establishment, variation, registration or enforcement of a support order; (demande de recherche d’une personne)

2 The heading “Claimant Ordinarily Resident in New Brunswick” preceding section 5 of the Act is amended by striking out “Ordinarily”.

3 Section 5 of the Act is amended

(a) in subsection (1) by striking out “If a proposed claimant ordinarily resides in New Brunswick and believes that the proposed respondent ordinarily resides in a reciprocating jurisdiction” and substituting “If a proposed claimant resides in New Brunswick and believes that the proposed respondent habitually resides in a reciprocating jurisdiction”;

(b) in paragraph (2)(b) of the English version by striking out “ordinarily resides” and substituting “habitually resides”.

4 Section 6 of the English version of the Act is amended

(a) in subsection (1) by striking out “ordinarily resides” and substituting “habitually resides”;

(b) in paragraph (2)(b) by striking out “ordinarily resides” and substituting “habitually resides”.

5 Subsection 7(1) of the English version of the Act is amended by striking out “ordinarily resides” and substituting “habitually resides”.

6 The heading “Claimant Ordinarily Resident Outside New Brunswick” preceding section 8 of the Act is amended by striking out “Ordinarily”.

7 Section 9 of the English version of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “ordinarily resides” and substituting “habitually resides”;

(b) in subsection (2) in the portion preceding paragraph (a) by striking out “ordinarily resides” and substituting “habitually resides”;

8 Subsection 10(4) of the Act is amended by striking out “18 months” and substituting “one year”.

9 Subsection 12(1) of the Act is repealed and the following is substituted:

12( 1) When determining a claimant’s entitlement to support for a child, a New Brunswick court shall apply the law of New Brunswick, but if under that law the claimant is not entitled to support, the New Brunswick court shall apply the law of the jurisdiction in which the child habitually resides.

10 Section 13 of the Act is amended by adding after subsection (1) the following:

13( 1.1) An order made under this section shall specify the law applied under section 12, but if an order does not do so, the order shall be deemed to have applied the law of New Brunswick.

11 Section 17 of the Act is amended

(a) in subsection (2) by striking out “the designated authority reasonably believes that the respondent ordinarily resides” and substituting “the designated authority reasonably believes that the respondent habitually resides”;

(b) by adding after subsection (2) the following:

17( 2.1) Despite subsection (2), if no party to an order resides in New Brunswick, a designated authority shall forward a copy of the order, in the prescribed manner, to the court administrator in the judicial district in which the designated authority reasonably believes that the party liable to pay support has property or a source of income.

12 Section 18 of the Act is amended

(a) in subsection (1) by striking out “subsection 17(2) or (3)” and substituting “subsection 17(2), (2.1) or (3)”;

(b) by adding after subsection (5) the following:

18( 6) The duration of the support obligation set out in an order referred to in subsection (1) shall be governed by the law under which the order was made.

18( 7) The onus shall be on the appropriate authority of the reciprocating jurisdiction to provide proof of the law governing the duration of the support obligation to the satisfaction of the designated authority.

18( 8) Despite subsection (7), if the designated authority is unable to determine the duration of the support obligation under the law specified, the designated authority shall apply the law of New Brunswick to determine the duration of the support obligation.

13 Section 19 of the Act is amended

(a) in subsection (1) of the English version by striking out “ordinarily reside” and substituting “habitually reside”;

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

19( 1.1) If the parties to an order reside outside New Brunswick, the designated authority shall notify the party liable to pay support of the registration of the foreign order under section 18 by ordinary mail at the last known address of the party as provided by the appropriate authority in the reciprocating jurisdiction.

( i) in paragraph (a) of the English version by striking out “ordinarily resident” and substituting “habitually resident”;

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

(b) a party, who was not habitually resident in the reciprocating jurisdiction outside Canada, was subject to the jurisdiction of the court if a New Brunswick court considers that court has the jurisdiction in accordance with the law of New Brunswick.

14 The heading “Applicant Ordinarily Resident in New Brunswick” preceding section 23 of the Act is amended by striking out “Ordinarily”.

15 Section 23 of the Act is amended

(a) in subsection (1) by striking out “If a proposed applicant ordinarily resides in New Brunswick and believes that the proposed respondent ordinarily resides” and substituting “If a proposed applicant resides in New Brunswick and believes that the proposed respondent habitually resides”;

(b) in paragraph (2)(c) of the English version by striking out “ordinarily resides” and substituting “habitually resides”.

16 Section 24 of the English version of the Act is amended

(a) in subsection (1) by striking out “ordinarily resides” and substituting “habitually resides”;

(b) in paragraph (2)(b) by striking out “ordinarily resides” and substituting “habitually resides”.

17 Subsection 25(1) of the English version of the Act is amended by striking out “ordinarily resides” and substituting “habitually resides”.

18 The heading “Applicant Ordinarily Resident Outside New Brunswick” preceding section 26 of the Act is amended by striking out “Ordinarily”.

19 Section 27 of the English version of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “ordinarily resides” and substituting “habitually resides”;

(b) in subsection (2) in the portion preceding paragraph (a) by striking out “ordinarily resides” and substituting “habitually resides”;

20 Subsection 28(4) of the Act is amended by striking out “18 months” and substituting “one year”.

21 Section 29 of the Act is amended

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

29( 1) When determining a party’s entitlement to receive or continue receiving support for a child, a New Brunswick court shall apply the law of New Brunswick, but if under that law the party is not entitled to support, the New Brunswick court shall apply the law of the jurisdiction in which the child habitually resides.

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

29( 2) When determining the amount of support to be provided for a child, a New Brunswick court shall apply the law of New Brunswick, including, for greater certainty, the applicable table under the Child Support Guidelines Regulation - Family Services Act.

(c) in paragraph (3)(a) of the English version by striking out “ordinarily resides” and substituting “habitually resides”.

22 Paragraph 32(a) of the Act is amended by striking out “ordinarily resides” and substituting “resides”.

23 Subsection 33(1) of the Act is amended

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

33( 1) A New Brunswick court, after taking into consideration any right of a government or a government agency under section 39, may vary a support order that is made in New Brunswick under this Act or the former Act or registered in New Brunswick under Part II or the former Act if

(b) in paragraph (b) of the English version by striking out “ordinarily reside” and substituting “habitually reside”;

24 Paragraph 34(6)(a) of the Act is amended by striking out “ordinarily”.

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

Request to locate

37.1( 1) If a designated authority receives a request to locate from an appropriate authority in a reciprocating jurisdiction, the designated authority may take any steps it considers appropriate for the purpose of obtaining information with respect to the whereabouts of the person named in the request.

37.1( 2) The designated authority may respond to a request to locate by advising the appropriate authority in the reciprocating jurisdiction whether or not the person has been located in New Brunswick, but must not disclose specific information respecting the location of the person.

37.1( 3) Information received under subsection (1) by a designated authority is confidential, except that the designated authority may use and disclose the information for the purpose of carrying out its duties and powers in accordance with this Act and the regulations.

26 The Act is amended by adding after section 40 the following:

Presumptions relating to proceedings

40.1 For the purposes of this Act, it is presumed, unless the contrary is established, that:

(a) procedures taken in a reciprocating jurisdiction have been regular and complete;

(b) a court making an order in a reciprocating jurisdiction had jurisdiction to do so; and

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Further information or documents

27( 1) If, before the commencement of this section, an order for further information or documents was made under subsection 10(2) of the Interjurisdictional Support Orders Act, subsection 10(4) of that Act applies, as it existed immediately before the commencement of this Act, to the receipt of the information or documents.

27( 2) If, before the commencement of this section, an order for further information or documents was made under subsection 28(2) of the Interjurisdictional Support Orders Act, subsection 28(4) of that Act applies, as it existed immediately before the commencement of this Act, to the receipt of the information or documents.

Applicable law

28 Subsections 12(1) and 29(1) of the Interjurisdictional Support Orders Act, as they existed immediately before the commencement of this section, apply to an application for support heard by a court of New Brunswick before that date.

Regulation under the Interjurisdictional Support Orders Act

29( 1) Subsection 3(3) of the English version of New Brunswick Regulation 2004-4 under the Interjurisdictional Support Orders Act is amended by striking out “ordinarily resides” and substituting “habitually resides”.

29( 2) Subsection 4(3) of the English version of the Regulation is amended by striking out “ordinarily resides” and substituting “habitually resides”.

Commencement

30 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.