Bill 6 - Family Law Act

BILL 6

Family Law Act

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

PART 1

DEFINITIONS

Definitions

1 The following definitions apply in this Act.

“best interests of the child” means the best interests of the child as determined in accordance with section 50. (intérêt supérieur de l’enfant)

“child”, except in Parts 3 and 4, means a person who has not attained the age of majority. (enfant)

“child support guidelines” means the guidelines established by regulation for making child support orders. (lignes directrices sur les aliments pour enfant)

“common-law partner” means a person who cohabits in a conjugal relationship with another person if the persons are not married to each other. (conjoint de fait)

“contact order” means an order made under subsection 57(1). (ordonnance de contact)

“Court” means The Court of Queen’s Bench of New Brunswick and includes any judge of the Court. (Cour)

“decision-making responsibility” means the responsibility for making significant decisions about a child’s well-being, including decisions in respect of (responsabilités décisionnelles)

ahealth,

beducation,

cculture, language, religion and spirituality, and

dsignificant extra-curricular activities.

“dependant” means a person to whom another has an obligation to provide support under this Act. (personne à charge)

“family dispute resolution process” means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law. (processus de résolution des différends familiaux)

“family member”, when used in reference to any person, includes (membre de la famille)

aa parent or grandparent of the person,

ba brother or sister of the person,

ca brother or sister of the person’s parent,

da spouse or former spouse of the person,

ea common-law partner or former common-law partner of the person,

fa person with whom the person is a parent of one or more children, regardless of whether they have cohabited at any time,

ga person who is cohabiting with or who has cohabited with the person in a family relationship, and

ha spouse or common-law partner of any of the persons referred to in paragraphs (a) to (c), while they are cohabiting.

“family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that indicates a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person, and, in the case of a child, the direct or indirect exposure to the conduct, and includes (violence familiale)

aphysical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person,

bsexual abuse,

cthreats to kill or cause bodily harm to any person,

dharassment, including stalking,

ethe failure to provide the necessaries of life,

fpsychological abuse,

gfinancial abuse,

hthreats to kill or harm an animal or damage property, and

ithe killing or harming of an animal or the damaging of property.

“marital home” means property in which one or both spouses have an interest and that is or has been occupied as their family residence, and if property that includes a marital home is used for a purpose in addition to that of a family residence, the marital home is that portion of the property that may reasonably be regarded as necessary for the use and enjoyment of the family residence. (foyer matrimonial)

“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of the person’s family, except when the person is a foster parent or kinship caregiver to that child under the Family Services Act. (parent)

“parenting order” means an order made under subsection 52(2). (ordonnance parentale)

“parenting time” means the time that a child spends in the care of a parent or a person who stands in the place of a parent or who intends to stand in the place of a parent, whether or not the child is physically with that person during that entire time. (temps parental)

“spouse” means either of two persons who (conjoint)

aare married to each other,

bare married to each other by a marriage that is voidable and has not been voided by a declaration of nullity, or

chave gone through a form of marriage with each other in good faith that is void.

“support order” means a child support order made under subsection 11(1) or a support order for a dependant who is not a child under subsection 17(1). (ordonnance alimentaire)

PART 2

COURT PROCEEDINGS

Role of Minister of Social Development

2 In any proceeding concerning the exercise of parenting time, decision-making responsibility or contact in respect of a child under this Act, the Court shall, if the Minister of Social Development is not a party to the proceeding, advise the Minister of Social Development of the proceeding, in which case the Minister of Social Development may intervene in the proceeding and may take whatever steps the Minister of Social Development considers necessary to ensure that the interests and concerns of the child are properly represented separate from those of any other person, including the appointment of a lawyer or a responsible spokesperson to assist in the representation of the interests and concerns of the child.

Admissibility of evidence taken at a previous proceeding

3 In considering any application brought under this Act, on notice to the parties, the Court may allow to be read into the record as evidence, or, on notice of the nature of the evidence, may take into consideration without reading into the record, any evidence taken at any previous proceeding, if

athe evidence is informative in any way as to the psychological, social or physical development of the child, the child’s parent or any other person living with the child or in a close relationship with the child as to be in a position to influence the nature of the care and supervision exercised with respect to the child, and

bthe evidence is relevant to any matter under consideration by the Court.

Confidential nature of proceedings

4( 1) Proceedings under this Act may, in whole or in part, be heard in open court or in private, and in exercising its discretion whether to proceed in open court or in private, the Court shall take into consideration in every case

athe public interest in hearing the proceeding in open court,

bany potential harm or embarrassment that may be caused to any person if matters of a private nature are disclosed in open court, and

cany representations made by the parties.

4( 2) No person shall, in relation to a proceeding under this Act, publish, make public or contribute to the publication of the name of a child who is or has been the subject of the proceeding or the name of the parent of any child in relation to the proceeding, or in any other way identify the child or the child’s parent.

4( 3) Despite subsection (2), a person may, in relation to a proceeding under this Act, publish, make public or contribute to the publication of the name of a child or the child’s parent or identify a child or the child’s parent in another way if the person has first obtained leave of the Court.

4( 4) For the purposes of subsections (2) and (3), a person contributes to the publication of the name of a child or the child’s parent if the person writes, edits or approves an article or other document for the purpose of publication, including publication on the Internet and in any other manner, that contains the name of the child or the child’s parent.

Duties of parties to proceedings

5( 1) A person to whom parenting time or decision-making responsibility has been allocated in respect of a child or who has contact with a child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.

5( 2) A party to a proceeding under this Act shall, to the best of their ability, protect any child from conflict arising from the proceeding.

5( 3) To the extent that it is appropriate to do so, the parties to a proceeding under this Act shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

5( 4) A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act.

5( 5) For greater certainty, a person who is subject to an order made under this Act shall comply with the order until it is no longer in effect.

5( 6) Every document that formally commences a proceeding under this Act, or that responds to a document, that is filed with the Court by a party to a proceeding shall contain a statement by the party certifying that they are aware of their duties under this section.

Duties of lawyers

6( 1) It is the duty of every lawyer who undertakes to act on a person’s behalf in any proceeding under this Act

ato encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so,

bto inform the person of any public or private services intended to help persons deal with issues arising from separation or divorce that are known to the lawyer that might assist the person in resolving the matters that may be the subject of an order under this Act, and in complying with any order or decision made under this Act, and

cto inform the person of the duties of the parties to proceedings under this Act.

6( 2) Every document that formally commences a proceeding under this Act, or that responds to a document, that is filed with the Court by a lawyer shall contain a statement by the lawyer certifying that the lawyer has complied with this section.

Duties of the Court

7( 1) In this section, “civil protection order” means a civil order that is made to protect a person’s safety, including an order that prohibits a person from

abeing in physical proximity to a specified person or following a specified person from place to place,

bcontacting or communicating with a specified person, either directly or indirectly,

cattending at or being within a certain distance of a specified place or location,

dengaging in harassing or threatening conduct directed at a specified person,

eoccupying a marital home or a residence, or

fengaging in family violence.

7( 2) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, in a proceeding under this Act and in relation to any party to that proceeding, the Court has a duty to consider whether any of the following are pending or in effect:

aa civil protection order or a proceeding in relation to such an order;

ba child protection order, proceeding, agreement or measure; or

can order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature.

7( 3) In order to carry out the duty under subsection (2), the Court may make inquiries of the parties or review information that is readily available.

Family dispute resolution

8( 1) In any proceeding under this Act, if the Court is of the opinion that any question arising might reasonably be the subject of a family dispute resolution process, and that it would be in the best interests of the family to attempt to resolve the question through a family dispute resolution process, the Court may make an order requiring the parties to participate in a family dispute resolution process and may adjourn the proceeding for a reasonable time.

8( 2) If an order is made under subsection (1), the parties to the proceeding shall pay for the cost of the family dispute resolution process services in equal portions unless the Court directs that one party pay the cost in total or that the parties pay the cost in unequal portions as specified by the Court.

PART 3

SUPPORT OBLIGATIONS

Definition of “child”

9 In this Part, “child” means

aa person who has not attained the age of majority who has not withdrawn from the charge of their parents, or

ba person who has attained the age of majority who is under the charge of their parents and is unable to withdraw from their charge or to obtain the necessaries of life by reason of

( i) illness,

( ii) disability,

( iii) pursuit of reasonable education, or

( iv) any other cause.

CHILD SUPPORT

Support obligation of parent

10 Subject to subsection 12(1), every parent has an obligation, to the extent the parent is capable of doing so, to provide support, in accordance with need, for their child.

Child support order

11( 1) On application, the Court may make a child support order ordering a person to provide support for their child and, subject to section 12, determine the amount of support.

11( 2) An application referred to in subsection (1) may be made by the child or a parent of the child or by the Minister of Social Development.

11( 3) The Minister of Social Development may make an application referred to in subsection (1), with or without the consent of the person entitled to child support, if assistance has been applied for or has been provided in respect of that person under the Family Income Security Act or if any payment has been made in respect of that person under the Family Services Act.

11( 4) When an application has been made by the Minister of Social Development under subsection (1), a certificate may be adduced in evidence without proof of the appointment, authority or signature of the person purporting to have signed it if the certificate is, or purports to be, signed by the Minister of Social Development and states any of the following:

athat a person named in the certificate is the dependant of another person named in the certificate;

bthat the first named person has applied for or has been provided assistance under the Family Income Security Act or that any payment has been made in respect of that person under the Family Services Act; or

cthe amount of any assistance or payment that has been provided.

Determination of amount of child support

12( 1) In a child support order made under subsection 11(1),

aif the child has not attained the age of majority, the support to be provided shall be an amount determined in accordance with the child support guidelines, or

bif the child has attained the age of majority, the support to be provided shall be an amount determined in accordance with the child support guidelines or, if the Court considers that amount to be inappropriate, an amount the Court considers appropriate, having regard to the means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.

12( 2) Despite paragraph (1)(a), the Court may award for a child who has not attained the age of majority an amount of child support that is different from the amount that would be determined in accordance with the child support guidelines if the Court is satisfied

athat special provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents of the child, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and

bthat the amount determined in accordance with the child support guidelines would be an amount that is inequitable given those special provisions.

12( 3) When the Court awards an amount under subsection (2) that is different from the amount that would be determined in accordance with the child support guidelines, the Court shall record its reasons for doing so.

12( 4) Despite paragraph (1)(a), on the consent of the parents of a child who has not attained the age of majority, the Court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

12( 5) For the purposes of subsection (4), in determining whether reasonable arrangements have been made for the support of a child, the Court shall have regard to the child support guidelines.

12( 6) Despite subsection (5), the Court shall not consider the arrangements to be unreasonable because the amount of support to which the parents have agreed is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.

Interim child support order

13( 1) When an application is made under subsection 11(1), subject to subsection (2), the Court may make any interim order that the Court considers appropriate.

13( 2) When making an order under subsection (1), the Court shall do so, to the extent possible, in accordance with the spirit and intent of section 12.

SUPPORT OF DEPENDANT WHO IS NOT A CHILD

Support obligations of spouses and common-law partners

14( 1) Every spouse has an obligation to provide support for themselves and for their spouse, in accordance with need, to the extent that they are capable of doing so.

14( 2) The obligation to provide support in subsection (1) applies to common-law partners if

athey have cohabited continuously for a period of not fewer than three years during which time one person has been substantially dependent on the other for support, or

bthey have cohabited in a situation of some permanence, if there is born a child of whom they are the parents.

Support obligation of father

15 Every father of a child has an obligation, to the extent the father is capable of doing so, to provide support in relation to the birth of the child, in accordance with need, to the mother of the child if the mother is not the father’s spouse.

Support obligation with respect to a parent

16 Every person who has attained the age of majority has an obligation to provide support, in accordance with need, for their parent who has cared for and provided support for that person, to the extent that the person is capable of doing so.

Support order for a dependant who is not a child

17( 1) On application, the Court may make a support order ordering a person to provide support for their dependant who is not a child and, subject to section 18, determine the amount of support.

17( 2) An application referred to in subsection (1) may be made by the dependant or by the Minister of Social Development.

17( 3) The Minister of Social Development may make an application referred to in subsection (1), with or without the consent of the dependant, if assistance has been applied for or provided in respect of the dependant under the Family Income Security Act or if any payment has been made in respect of the dependant under the Family Services Act.

17( 4) When an application has been made by the Minister of Social Development under subsection (1), a certificate may be adduced in evidence without proof of the appointment, authority or signature of the person purporting to have signed it if the certificate is, or purports to be, signed by the Minister of Social Development and states any of the following:

athat a person named in the certificate is the dependant of another person named in the certificate;

cthe amount of any assistance or payment that has been provided.

Determination of amount of support for a dependant who is not a child

18( 1) In determining the amount, if any, of support in an order under subsection 17(1), the Court shall consider all the circumstances of the parties, including

athe assets and means of the dependant and of the person from whom support is sought and any benefit or loss of benefit under a pension plan or annuity,

bthe capacity of the dependant to provide for their own needs,

cthe capacity of the person from whom support is sought to provide support,

dthe age and the physical and mental health of the dependant and of the person from whom support is sought,

ewhether any physical or mental disability or other cause exists that impairs the capacity of the dependant to provide for their own needs,

fthe length of time the dependant and the person from whom support is sought cohabited,

gthe needs of the dependant, having regard to the accustomed standard of living while the parties cohabited,

hthe measures available for the dependant to become financially independent and the length of time and cost involved to enable the dependant to take those measures,

ithe legal obligation of the person from whom support is sought to provide support for any other person,

jthe desirability of the dependant or person from whom support is sought remaining at home to care for a child,

kany contribution by the dependant to the realization of the career potential of the person from whom support is sought,

lthe effect on the dependant’s earning capacity of the responsibilities assumed during cohabitation,

mwhether the dependant has undertaken the care of another dependant who has attained the age of majority and is unable by reason of illness, disability or other cause to withdraw from the charge of the dependant,

nwhether the dependant has undertaken to assist in the pursuit of reasonable education of another dependant who has attained the age of majority and is unable for that reason to withdraw from the charge of the dependant,

oany housekeeping, child care or other domestic service performed by the dependant for the family, in the same way as if the dependant were devoting the time spent in performing that service in remunerative employment and were contributing the earnings from it to the support of the family,

pany other legal right of the dependant to support, other than assistance under the Family Income Security Act or any payment made in respect of that person under the Family Services Act, and

qthe conduct of the parties, if the conduct unreasonably precipitates, prolongs or aggravates the need for support or unreasonably affects the ability to pay support.

18( 2) For the purposes of paragraph (1)( i), if the fulfilment by a person of any obligation to support a person under subsection 14(2) would diminish the entitlement of any person who is or was lawfully married to that person, or of any child of that marriage, to support from that person, the Court, in making an order, shall, subject to section 20, give priority to the obligations owed by that person to the person to whom they are or were lawfully married and to any child of that marriage.

Interim support order for dependant who is not a child

19( 1) When an application is made under subsection 17(1), subject to subsection (2), the Court may make any interim order that the Court considers appropriate.

19( 2) When making an order under subsection (1), the Court shall consider, to the extent possible, the circumstances of the parties set out in section 18.

GENERAL SUPPORT MATTERS

Priority of child support order

20( 1) When the Court is considering an application for a child support order and an application for a support order for a dependant who is not a child, the Court shall give priority to the support of the child in determining the applications.

20( 2) If, as a result of giving priority to the support of a child, the Court is unable to make a support order for a dependant who is not a child, or the Court makes the order for the support of a dependant who is not a child in an amount that is less than it otherwise would have been, the Court shall record its reasons for doing so.

20( 3) If, as a result of giving priority to the support of a child, a support order for a dependant who is not a child is not made, or the amount of the support order for a dependant who is not a child is less than it otherwise would have been, any subsequent reduction or termination of the support for the child constitutes a material change in the circumstances of the dependant who is not a child for the purposes of an application for a support order for that dependant under subsection 17(1) or 23(1), as the case may be.

Court orders

21( 1) In this section, “household goods” means furniture, equipment, appliances and effects owned by one spouse or both spouses and ordinarily used or enjoyed by both spouses or by one or more of their children within or about a marital home while the spouses are or were cohabiting.

21( 2) In a support order, the Court may order

aan amount to be paid periodically, whether monthly or otherwise and whether for an indefinite or limited period or until the happening of a specified event,

ba lump sum to be paid or held in trust,

cany specified property to be transferred to the dependant or in trust for the benefit of the dependant or vested in the dependant, whether absolutely, for life or for a term of years,

dthat one spouse be given exclusive possession of a marital home or part of it for any period the Court directs,

ethat a spouse, to whom exclusive possession of a marital home is given, pay any periodic payments to the other spouse that are set out in the order with respect to the use of the marital home,

fthat the household goods within a marital home, or any part of them, remain in the marital home for the use of the spouse given possession,

gthat a spouse assume the obligation to repair and maintain the marital home or to pay other liabilities arising in respect of the marital home,

hthat all or any of the money payable under the order be paid into court or to any appropriate person or agency for the benefit of the dependant,

ithe payment of support to be made in respect of any period before the date of the order,

jthe payment to the Minister of Social Development, or into court for the Minister of Social Development, of any amount in reimbursement for assistance that has been provided under the Family Income Security Act, including an amount in reimbursement for assistance provided before the date of the order, or reimbursement for any payment that has been made in respect of a person under the Family Services Act,

kthe payment of expenses in respect of the prenatal care and birth of a child,

lthat the obligation and liability for support continue after the death of the person who is liable to pay support and be a debt of that person’s estate for any period fixed in the order,

mthat a spouse who has a policy of life insurance as defined in the Insurance Act designate the other spouse or a child as the beneficiary,

nthe securing of payment under the order, by a charge on property or otherwise, and

othe payment of expenses, legal or otherwise, arising in relation to the application for the support order.

Discharge, variance or suspension of a child support order

22( 1) Subject to this section, if a child support order has been made under subsection 11(1), on application by any person named in the order or the Minister of Social Development, the Court may, by order,

adischarge, vary or suspend any term of the order, prospectively or retroactively,

brelieve the person who is obligated to provide support from the payment of part or all of the arrears or any interest due on the arrears, and

cinclude in an order to vary any provision that under this Act could have been included in the child support order in respect of which the order to vary is sought.

22( 2) Before the Court makes an order to vary a child support order, the Court shall satisfy itself that a change of circumstances as provided for in the child support guidelines has occurred since the making of the child support order under subsection 11(1) or since the last order to vary was made in respect of that order.

22( 3) When making an order to vary a child support order, the Court shall determine the amount of support in accordance with section 12.

Discharge, variance or suspension of a support order for a dependant who is not a child

23( 1) Subject to subsection (2), if a support order has been made for a dependant who is not a child, on the application of any person named in the order or the Minister of Social Development, the Court may, by order,

adischarge, vary or suspend any term of the order, prospectively or retroactively,

brelieve the person who is obligated to provide support from the payment of part or all of the arrears or any interest due on the arrears, and

cmake any order under section 19, subsection 21(2), or section 29 or 30 that the Court considers appropriate in the circumstances set out in subsection 18(1).

23( 2) Before the Court makes an order under subsection (1), the Court shall satisfy itself that

athere has been a material change in the circumstances of the dependant or the person who is obligated to provide support,

bevidence has become available that was not available on the previous hearing, or

cthe conduct of the dependant has unreasonably prolonged or aggravated the need for support.

Order restraining disposition or wasting of assets

24 In or pending an application for a support order under this Act or an order under section 33 of the Support Enforcement Act, or if a support order has been made, the Court may make any interim or final order it considers necessary for restraining the disposition or wasting of assets that would impair or defeat the application or support order.

Admissibility of evidence of assets and means

25 In any proceeding under this Act, the Court may admit as evidence any testimony or any documents relating to the assets and means of a person, even though the testimony or documents would not, but for this section, be admissible as evidence, and may determine any matter on that evidence.

Joint and several liability of spouses for necessaries

26( 1) During cohabitation, a spouse has authority to render themselves and their spouse jointly and severally liable to a third party for necessaries of life, except if the other spouse has notified the third party that they have withdrawn the authority.

26( 2) When persons are jointly and severally liable with each other under this section, their liability to each other shall be determined in accordance with their obligation to provide support.

26( 3) The provisions of this section apply in place of the rules of common law by which a wife may pledge the credit of her husband.

Setting aside agreement

27 The Court may set aside a provision for support or a waiver of the right to support in any agreement and may make a support order even though the agreement contains an express provision excluding the application of this section, if

athe provision for support or the waiver of the right to support results in unconscionable circumstances,

bthe provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for assistance under the Family Income Security Act or a dependant in respect of whom any payment has been made under the Family Services Act, or

cthere is default in the payment of support under the agreement at the time the application is made.

Effect of action for divorce or termination of marriage

28( 1) When an action for divorce is commenced under the Divorce Act (Canada), any application for a support order that has not been determined is stayed except by leave of the Court.

28( 2) When a marriage is terminated by a judgment granting a divorce or a decree absolute of divorce or is declared a nullity, and the question of support was not judicially determined in the divorce or nullity proceedings, a support order continues in force according to its terms.

Termination of support order

29( 1) Unless it provides otherwise, a support order terminates on the death of the person having the obligation to provide support, and liability for any unpaid amounts due under the order is a debt of the person’s estate.

29( 2) Despite subsection (1), on application, the Court may relieve the estate of a person having an obligation to provide support from liability for all or part of any unpaid amount under a support order if the Court is satisfied that it would be grossly unfair to the estate not to do so.

29( 3) On the death of a person in whose favour a support order was made, any unpaid amounts due under the support order at the time of the person’s death are a debt due to the person’s estate.

Assignment to the Minister of Social Development

30 A support order may be assigned to the Minister of Social Development in accordance with the Family Income Security Act.

Certificate as judgment

31( 1) The Court may issue a certificate in the form prescribed by regulation stating the amount that is due under any order made under this Act, including interest, if any, and the name of the person by whom the amount is payable.

31( 2) A certificate issued under subsection (1) may be filed with the Court and, when so filed, shall be entered and recorded in the Court, and when entered and recorded becomes a judgment of the Court and may be enforced as a judgment obtained in the Court against the person named in the certificate for a debt of the amount stated in the certificate.

31( 3) If a judgment referred to in subsection (2) and another judgment are enforced under the Enforcement of Money Judgments Act at the same time, the enforcement proceeds shall be applied to the judgment referred to in subsection (2) in priority to the other judgment.

PART 4

CHILD SUPPORT SERVICE

Definitions

32 The following definitions apply in this Part.

“child” means (enfant)

aa person who has not attained the age of majority who has not withdrawn from the charge of their parents, or

ba person who has attained the age of majority who is under the charge of their parents and is unable to withdraw from their charge or to obtain the necessaries of life by reason of

( i) illness,

( ii) disability,

( iii) pursuit of reasonable education, or

( iv) any other cause.

“child support order” means a provision for the payment of child support in an order or judgment that is enforceable in the Province, except an order that has no force or effect until it is confirmed by a court of competent jurisdiction, and includes (ordonnance alimentaire pour enfant)

aan interim order made under this Act or under the Divorce Act (Canada),

ban order varying an order made under this Act or the Divorce Act (Canada),

can agreement filed with the Court in accordance with section 79, and

dan order made under an enactment of another province or territory of Canada respecting family law if the order has been registered under section 18 of the Interjurisdictional Support Orders Act.

Child support service

33( 1) The Minister may establish a child support service, which shall perform the duties and functions set out in this Act and the regulations.

33( 2) Subject to subsection (4), the child support service may annually recalculate

athe amount of child support in a child support order, and

bthe proportionate shares of any special or extraordinary expenses included in the order.

33( 3) The child support service shall perform a recalculation under subsection (2),

asubject to subsection 44(2), on the basis of updated income information, and

b in accordance with the child support guidelines, this Act and the regulations.

33( 4) The child support service may perform a recalculation under subsection (2) only if the following conditions are met:

athe amount of child support in the child support order was originally determined in accordance with the applicable table of the child support guidelines;

bthe eligibility criteria for recalculation prescribed by regulation are met; and

cthe recalculation is not prohibited by a court order.

33( 5) The child support service shall perform a recalculation under subsection (2) on a date that the child support service considers appropriate, even if the child support order specifies another annual recalculation date.

33( 6) The Minister may designate a person as the Director of the child support service to administer the child support service in accordance with this Act and the regulations.

Registration

34( 1) A party to a child support order, including an assignee of a child support order, may apply to register a child support order with the child support service in accordance with the regulations.

34( 2) A child support order that is registered with the child support service may be withdrawn from the child support service in accordance with the regulations.

Appointing of child support service

35 A party to a child support order, including an assignee of a child support order, is deemed to have appointed the child support service to act on their behalf for the purpose of requesting and receiving financial information necessary to recalculate the amount of child support in a child support order under this Act or the regulations.

Mandatory clauses concerning recalculation

36 In making a child support order, the Court shall include the clauses concerning recalculation by the child support service that are required by the regulations to be included in a child support order.

Waiver

37 The parties to a child support order registered with the child support service may agree in writing to waive in accordance with the regulations a particular recalculation.

Recalculation decision

38( 1) The child support service may, in accordance with the regulations, make a decision setting out a recalculated amount of child support payable in a child support order.

38( 2) If the difference between an amount payable for child support under the child support order and the recalculated amount is less than the amount prescribed by regulation, the amount payable for child support shall remain unchanged.

38( 3) After recalculating the amount of child support payable in a child support order, the child support service shall provide, in the manner prescribed by regulation, a copy of its decision to

athe person responsible for paying the child support,

bthe recipient of the child support,

cany person to whom the child support order has been assigned, and

dthe Office of Support Enforcement established under the Support Enforcement Act, if the order is filed with the Director of Support Enforcement under that Act.

38( 4) The child support service shall file its decision with the Court.

38( 5) The decision of the child support service setting out a recalculated amount of child support has the same effect as a child support order, including for the purposes of enforcement under the Support Enforcement Act.

Effect of recalculated amount

39 Subject to subsection 42(4), the amount of child support recalculated under this Part shall for all purposes be deemed to be the amount payable under the child support order.

Corrections

40( 1) Subject to the regulations, the child support service may correct an error made in a decision under subsection 38(1) and may provide a corrected decision.

40( 2) Subsections 38(3), (4) and (5) apply with the necessary modifications to a corrected decision provided under subsection (1).

Liability

41 Subject to subsection 42(4), the person responsible for paying the child support becomes liable to pay the recalculated amount set out in the decision of the child support service under subsection 38(1) or the corrected decision under subsection 40(1) 31 days after the receipt of a copy of the decision provided in accordance with subsection 38(3).

Disagreement with recalculated amount

42( 1) If a party to a child support order does not agree with the recalculated amount of child support set out in a decision of the child support service under subsection 38(1) or a corrected decision under subsection 40(1), the party may apply to the Court to make an order under subsection 11(1) or 22(1), as the case may be.

42( 2) An application under subsection (1) shall be made within 30 days after the receipt of a copy of the decision or the corrected decision provided in accordance with subsection 38(3).

42( 3) A party who makes an application under subsection (1) shall provide a copy of the application to the child support service within the period referred to in subsection (2).

42( 4) When an application is made under subsection (1), the operation of sections 39 and 41 is suspended pending the determination of the application by the Court, and the child support order continues in effect as if the recalculation had not been made.

42( 5) If an application under subsection (1) is withdrawn before it is determined, the party withdrawing the application shall notify the child support service.

42( 6) If an application under subsection (1) is withdrawn before it is determined or is dismissed by the Court, the party against whom the child support order was made becomes liable to pay the recalculated amount in accordance with section 41 as if the application had not been made.

Ceasing recalculation

43 The child support service may cease to recalculate the amount of child support for a child who has attained the age of majority, and recalculate the amount of child support for any remaining children, in either of the following circumstances:

aif the recipient of the child support consents in writing to the cessation of the recalculation and the child support service is satisfied that the consent was given voluntarily; or

bif the recipient of the child support has not satisfied the child support service that the amount of child support for the child who has attained the age of majority is eligible for recalculation.

Income information

44( 1) A party to a child support order whose income information is necessary for the purpose of recalculating the amount of child support payable shall provide to the child support service updated financial or other information or documentation that is required by the regulations, in the form and manner and at the time prescribed by regulation.

44( 2) If a party does not provide the information or documentation in accordance with subsection (1), the child support service may determine an income amount in accordance with the regulations, and that amount is deemed to be the party’s income for the purposes of recalculating the amount of child support payable.

Contact information

45 A party to a child support order shall provide their current contact information to the child support service in the form and manner and at the time prescribed by regulation.

Request for information

46( 1) For the purpose of recalculating the amount of child support in a child support order, the child support service may request in writing that any person, public body, including the Crown, or other entity provide in writing the following information in their possession or control:

athe address or whereabouts of a party to a child support order;

bthe name and address of the employer of a party to a child support order;

cthe financial information required to be provided by a party to a child support order under this Act or the regulations; and

dany other information prescribed by regulation.

46( 2) If information referred to in subsection (1) is in a database or other collection of information maintained by a public body, including the Crown, the child support service may enter into an agreement with that public body that gives the child support service access to the database or collection to the extent necessary to collect the information.

46( 3) An agreement under subsection (2) shall include reasonable security safeguards to protect the information against risks, including unauthorized access, use, disclosure and destruction.

46( 4) Despite any provision in any Act or regulation or any other law, a person, public body, including the Crown, or other entity who receives a request to provide information shall provide the child support service with the information within 21 days after receiving the request at no cost to the child support service.

46( 5) If the child support service does not receive the information requested under subsection (1) within 21 days after receipt of the request, it may recalculate the amount of child support in accordance with the regulations.

46( 6) The Crown in right of the Province is bound by the provisions regarding requests for information made by the child support service.

Disclosure of information

47( 1) No person shall disclose information received by the child support service under this Act or the regulations.

47( 2) Despite subsection (1), a person may disclose information referred to in subsection (1) if the disclosure is

anecessary for the purpose of recalculating the amount of child support,

bfor a purpose authorized by this Act or the regulations, or

crequired by an Act or regulation of the Province or of Canada.

Conflict with Right to Information and Protection of Privacy Act

48 If section 46 or 47 is inconsistent with or in conflict with a provision of the Right to Information and Protection of Privacy Act, section 46 or 47, as the case may be, prevails.

PART 5

PARENTING TIME, DECISION-MAKING RESPONSIBILITY AND CONTACT

Definitions

49 The following definitions apply in this Part.

“extra-provincial order” means an order, or that part of an order, of an extra-provincial tribunal that allocates to a person parenting time or decision-making responsibility in respect of a child or that provides for contact between a person and a child. (ordonnance extraprovinciale)

“extra-provincial tribunal” means a court or tribunal outside the Province that has jurisdiction to allocate to a person parenting time or decision-making responsibility in respect of a child or to provide for contact between a person and a child. (tribunal extraprovincial)

“relocation” means a change in the place of residence of a child or a person who has parenting time or decision-making responsibility in respect of a child, or who has a pending application for a parenting order, that is likely to have a significant impact on the child’s relationship with (déménagement important)

aa person who has parenting time, decision-making responsibility or a pending application for a parenting order in respect of the child, or

ba person who has contact with the child under a contact order.

Best interests of the child

50( 1) The Court shall take into consideration only the best interests of the child in making a parenting order or a contact order.

50( 2) In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including

athe child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage,

bthe child’s needs, including the need for stability, given the child’s age and stage of development,

cthe nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life,

deach parent’s willingness to support the development and maintenance of the child’s relationship with the other parent,

ethe history of care of the child,

fthe child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained,

gany plans for the child’s care,

hthe ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child,

ithe ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child,

jany family violence and its impact on, among other things,

( i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

( ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and

kany civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

50( 3) When considering the factors referred to in subsection (2), the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

50( 4) In considering the impact of any family violence under paragraph (2)(j), the Court shall take the following factors into account:

athe nature, seriousness and frequency of the family violence and when it occurred;

bwhether there is a pattern of coercive and controlling behaviour in relation to a family member;

cwhether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

dthe physical, emotional and psychological harm or risk of harm to the child;

eany compromise to the safety of the child or other family member;

fwhether the family violence causes the child or other family member to fear for their own safety or for that of another person;

gany steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

hany other relevant factor.

50( 5) In determining what is in the best interests of the child, the Court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

50( 6) In allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each person in respect of whom the order would apply as is consistent with the best interests of the child.

50( 7) In this section, a parenting order includes an interim parenting order and an order to vary a parenting order, and a contact order includes an interim contact order and an order to vary a contact order.

Court may order examination or evaluation

51( 1) In any proceeding under this Act that affects a child, if the Court determines that it would be in the best interests of the child to do so, the Court may require that the child, a parent or any other person living with the child or in a close relationship with the child so as to be in a position to influence the nature of the care and supervision exercised with respect to the child, undergo a psychiatric, psychological, social, physical or any other examination or evaluation specified by the Court, before or during the hearing.

51( 2) In the event of the refusal or failure by any person to participate in an examination or evaluation ordered by the Court, or to consent to the examination or evaluation of a child under the person’s care, the Court may draw inferences that appear to the Court to be warranted under the circumstances.

51( 3) If the Court orders an examination or evaluation under subsection (1), the parties to the proceeding shall pay for the cost of the examination or evaluation in equal portions, unless the Court directs that one party pay the cost in total or that the parties pay the cost in unequal portions as specified by the Court.

PARENTING ORDERS

Parenting orders

52( 1) Unless otherwise agreed by written agreement or ordered by the Court, if a child has more than one parent, the parents have shared parenting time and shared decision-making responsibility with respect to the child.

52( 2) The Court may make a parenting order providing for the exercise of parenting time or decision-making responsibility in respect of any child on application by

aone or more parents, or

ba person, other than a parent, who stands in the place of a parent or intends to stand in the place of a parent.

52( 3) On application by a person referred to in subsection (2), the Court may make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

52( 4) In a parenting order, the Court may

aallocate parenting time in accordance with subsection 53(1),

ballocate decision-making responsibility in accordance with section 54,

cwith regard to communication that takes place during the parenting time allocated to a person, include requirements with respect to any means of communication used between a child and another person to whom parenting time or decision-making responsibility is allocated,

ddirect the parties to attend a family dispute resolution process,

eauthorize or prohibit the relocation of a child,

frequire that parenting time or the transfer of a child from one person to another be supervised,

gprohibit the removal of a child from a specified geographic area without the written consent of a specified person or without a court order authorizing the removal, and

hprovide for any other matter that the Court considers appropriate.

52( 5) The Court may make a parenting order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions in the order that it considers appropriate.

52( 6) On application, the Court may vary or discharge a parenting order.

Parenting time – schedule

53( 1) Parenting time may be allocated by way of a schedule.

53( 2) Unless the Court orders otherwise, a person to whom parenting time is allocated under paragraph 52(4)(a) has exclusive authority to make day-to-day decisions affecting the child during that time.

Allocation of decision-making responsibility

54 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to one or more parents or to a person described in paragraph 52(2)(b), or to any combination of those persons.

Entitlement to information

55( 1) Unless the Court orders otherwise, a person to whom parenting time or decision-making responsibility has been allocated is entitled to request information about the child’s well-being, including information in respect of the child’s health and education, from the following persons:

aanother person to whom parenting time or decision-making responsibility has been allocated, and

bany other person who is likely to have the information.

55( 2) A person who makes a request under subsection (1) shall be given that information by those persons subject to any applicable law.

Effect of action for divorce or termination of marriage

56 When an action for divorce is commenced under the Divorce Act (Canada), any application for a parenting order under this Act that has not been determined is stayed except by leave of the Court.

CONTACT ORDERS

Contact orders

57( 1) On application by a person other than a parent, the Court may make a contact order providing for contact between that person and a child.

57( 2) On application by a person referred to in subsection (1), the Court may make an interim contact order pending the determination of the application made under that subsection.

57( 3) The Court may make a contact order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate, including

arequiring that any contact with a child or any transfer of a child from one person to another be supervised, and

bprohibiting the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

57( 4) In determining whether to make a contact order under this section, the Court shall consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, including during the parenting time of another person.

57( 5) In a contact order, the Court may provide for

acontact between an applicant and a child in the form of visits or by any means of communication, and

bany other matter that the Court considers appropriate.

57( 6) On application, the Court may vary or discharge a contact order.

57( 7) If a parenting order in respect of a child has already been made, the Court may make an order varying the parenting order to take into account a contact order it makes under this section.

57( 8) When the Court varies a parenting order under subsection (7),

athe Court may include in the new parenting order any provision regarding contact that it would otherwise have been able to include in the original parenting order, and

bthe new parenting order shall be provided to the court that made the original order.

PARENTING PLAN

Parenting plan

58( 1) In this section, “parenting plan” means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact with respect to a child to which the parties agree.

58( 2) The Court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the Court, it is not in the best interests of the child to do so, in which case the Court may make any modifications to the parenting plan that it considers appropriate and include the modified parenting plan in the order.

CHANGE IN PLACE OF RESIDENCE AND RELOCATION

Change in place of residence

59( 1) 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 that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child.

59( 2) A notice under subsection (1) shall be given in writing and shall set out

athe expected date of the change in the place of residence, and

bthe address of the new place of residence and contact information of the person or child, as the case may be.

59( 3) Subsections (1) and (2) do not apply if an agreement filed under this Act or a court order provides a different notice requirement for a planned change in the place of residence.

59( 4) Despite subsections (1) and (2), the Court may, on application, provide that the requirements in those subsections do not apply or may modify them, including when there is a risk of family violence.

59( 5) An application referred to in subsection (4) may be made without notice to any other party.

Relocation

60( 1) A person who has parenting time or decision-making responsibility in respect of a child and who intends to undertake a relocation shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child.

60( 2) A notice under subsection (1) shall be given in writing and shall set out

athe expected date of the relocation,

bthe address of the new place of residence and contact information of the person or child, as the case may be,

ca proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised, and

dany other information prescribed by regulation.

60( 3) A notice under subsection (1) shall be delivered with as much notice as possible in advance of the date of the planned relocation.

60( 4) If a person intending to undertake a relocation is unable to provide notice under subsection (1) at least 60 days in advance of the date of the relocation, that person shall provide reasons in the notice.

60( 5) Subsections (1) to (4) do not apply if an agreement filed under this Act or a court order provides a different notice requirement for a planned relocation.

60( 6) Despite the requirements of this section or in the regulations made for the purposes of this section, the Court may, on application, provide that those requirements do not apply or may modify them, including when there is a risk of family violence.

60( 7) An application referred to in subsection (6) may be made without notice to any other party.

Relocation authorized

61 A person who has given notice under subsection 60(1) and who intends to undertake the relocation of a child may do so as of the date referred to in the notice if

athe relocation is authorized by the Court, or

bthe following conditions are satisfied:

( i) a person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 60(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in an application made under subsection 52(2) or (6), and

( ii) there is no order prohibiting the relocation.

Best interests of child – additional factors to be considered

62( 1) In deciding whether to authorize a relocation of a child, the Court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 50,

athe reasons for the relocation,

bthe impact of the relocation on the child,

cthe amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons,

dwhether the person who intends to undertake the relocation of the child complied with any applicable notice requirement under section 60 or under an agreement or order referred to in subsection 60(5),

ethe existence of an agreement or order that specifies the geographic area in which the child is to reside,

fthe reasonableness of the proposal of the person who intends to undertake the relocation of the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses, and

gwhether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under this Act or an order or agreement, and the likelihood of future compliance.

62( 2) In deciding whether to authorize a relocation of the child, the Court shall not consider whether the person who intends to undertake the relocation of the child would relocate without the child or not relocate if the child’s relocation was prohibited.

Burden of proof

63( 1) If the parties to a proceeding substantially comply with an order or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to undertake the relocation of the child has the burden of proving that the relocation would be in the best interests of the child.

63( 2) If the parties to a proceeding substantially comply with an order or agreement that provides that a child spends the vast majority of their time in the care of the party who intends to undertake a relocation of the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

63( 3) In any other case, the parties to a proceeding have the burden of proving whether the relocation is in the best interests of the child.

Power of Court – interim orders

64 The Court may decide not to apply subsections 63(1) and (2) if the order referred to in those subsections is an interim order.

Costs relating to exercise of parenting time

65 If the Court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

Notice – persons with contact

66( 1) A person who has contact with a child under a contact order shall notify, in writing, any person with parenting time or decision-making responsibility in respect of that child of their intention to change their place of residence, the date on which the change is expected to occur, the address of their new place of residence and their contact information.

66( 2) If the change in the place of residence is likely to have a significant impact on the child’s relationship with the person, the notice shall be given at least 60 days before the change in the place of residence and shall set out, in addition to the information required in subsection (1), a proposal as to how contact could be exercised in light of the change and any other information prescribed by regulation.

66( 3) Despite subsections (1) and (2), the Court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including when there is a risk of family violence.

66( 4) An application referred to in subsection (3) may be made without notice to any other party.

REMOVAL OF CHILD FROM THE PROVINCE

Order to prevent removal of child from Province

67( 1) The Court may make an order under subsection (2) to prevent the removal of a child from the Province or secure the child’s prompt safe return to the Province if the Court, on application, is satisfied on reasonable grounds that a person:

aprohibited by order or agreement from removing the child from the Province intends to remove the child from the Province; or

bwho has parenting time or contact with the child under an order or agreement intends to remove the child from the Province and is not likely to return the child to the Province.

67( 2) For the purposes of subsection (1), the Court may make any one or more of the following orders:

aorder a person to transfer specific property to a named trustee to be held subject to any terms and conditions that the Court considers appropriate;

bin the case of a person from whom payments have been ordered to be made for the support of the child, order that person to make the payments to a specified trustee subject to any terms and conditions that the Court considers appropriate;

corder a person to post a bond, with or without sureties, payable to the applicant in the amount the Court considers appropriate; and

dorder a person to deliver the person’s passport, the child’s passport and any other travel documents of either of them that the Court specifies to the Court or to a person or body specified by the Court.

67( 3) In an order made under subsection (2), the Court may

aspecify terms and conditions for the return or disposition of the property or payments, or

bgive directions with respect to the safekeeping of the property, payments, passports or other travel documents.

67( 4) A person or body specified by the Court in an order referred to in paragraph (2)( d) shall hold a passport or other travel document delivered in accordance with the order in safekeeping in accordance with any directions set out in the order.

JURISDICTION OF THE COURT

Prerequisites for parenting order or contact order

68( 1) The Court shall only exercise its jurisdiction to make or vary a parenting order or contact order in respect of a child if

athe child is habitually resident in the Province at the commencement of the application for the order, or

balthough the child is not habitually resident in the Province, the Court is satisfied

( i) that the child is physically present in the Province at the commencement of the application for the order,

( ii) that substantial evidence concerning the best interests of the child is available in the Province,

( iii) that no application for a parenting order or contact order with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,

( iv) that no extra-provincial order with respect to the child has been recognized by a court in the Province,

( v) that the child has a real and substantial connection with the Province, and

( vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in the Province.

68( 2) A child is habitually resident in the place where the child resided most recently, either

awith their parents,

bif the parents are living separate and apart, with a parent under a separation agreement or with the implied consent of another parent or under a court order, or

cwith a person other than a parent on a permanent basis for a significant period of time.

68( 3) The removal or withholding of a child without the consent of any other person having a parenting order with respect to the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process for the return of the child by the person from whom the child is removed or withheld.

Exception for danger to child

69 Despite subsection 68(1) and section 72, the Court may exercise its jurisdiction to make or vary a parenting order or contact order in respect of a child if

athe child is physically present in the Province, and

bthe Court is satisfied that the child would, on the balance of probabilities, suffer serious harm if

( i) the child remained under the care and supervision of the person having a parenting order with respect to the child,

( ii) the child was returned to the care and supervision of the person having a parenting order with respect to the child, or

( iii) the child was removed from the Province.

Refusal to exercise jurisdiction

70 When the Court has jurisdiction to make or vary a parenting order or contact order in respect of a child, it may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the Province.

Special jurisdiction

71( 1) This section applies if the Court

ais satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, the Province, or

bmay not exercise jurisdiction under subsection 68(1), or if the Court has declined jurisdiction under section 70 or subsection 73(2).

71( 2) In the circumstances set out in subsection (1), on application, the Court may do one or more of the following:

amake any interim parenting order or contact order that the Court considers is in the best interests of the child;

bstay the application, subject to

( i) the condition that a party to the application promptly commence or proceed expeditiously with a similar proceeding before an extra-provincial tribunal, or

( ii) any other conditions the Court considers appropriate; and

corder a party to return the child to a place the Court considers appropriate and, in the discretion of the Court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.

EXTRA-PROVINCIAL ORDERS

Orders of extra-provincial tribunal

72( 1) On application by any person in whose favour a parenting order or contact order in respect of a child has been made by an extra-provincial tribunal, the Court shall recognize the order unless the Court is satisfied

athat the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made,

bthat the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made,

cthat the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child,

dthat the order of the extra-provincial tribunal is contrary to public policy in the Province, or

ethat, under the requirements of subsection 68(1), the extra-provincial tribunal could not exercise jurisdiction if it were a court in the Province.

72( 2) If the Court is presented with conflicting parenting orders or contact orders in respect of a child made by extra-provincial tribunals that, but for the conflict, would be recognized by the Court under subsection (1), the Court shall recognize the order that appears to the Court to be most in accord with the best interests of the child.

72( 3) An order made by an extra-provincial tribunal that is recognized by the Court shall be deemed to be an order of the Court and enforceable as an order of the Court.

72( 4) If the Court has recognized an extra-provincial order, the Court may make any further orders under this Act that it considers necessary to give effect to the order.

Order to supersede extra-provincial order – material change

73( 1) On application, the Court by order may supersede an extra-provincial order in respect of a child if the Court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and

athe child is habitually resident in the Province at the commencement of the application, or

balthough the child is not habitually resident in the Province, the Court is satisfied

( i) that the child is physically present in the Province at the commencement of the application for the order,

( ii) that the child no longer has a real and substantial connection with the place where the extra-provincial order was made,

( iii) that substantial evidence concerning the best interests of the child is available in the Province,

( iv) that the child has a real and substantial connection with the Province, and

( v) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in the Province.

73( 2) The Court may decline to exercise its jurisdiction under this section if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the Province.

Order to supersede extra-provincial order – serious harm

74 On application, the Court by order may supersede an extra-provincial order in respect of a child if the Court is satisfied that the child would, on the balance of probabilities, suffer serious harm if

athe child remained under the care and supervision of the person having a parenting order with respect to the child,

bthe child was returned to the care and supervision of the person having a parenting order with respect to the child, or

cthe child was removed from the Province.

Obtaining extra-provincial evidence

75( 1) If the Court is of the opinion that it is necessary to receive further evidence from a place outside the Province before making a decision, the Court may send to the Attorney General, Minister of Justice or similar officer of the place outside the Province the necessary supporting material together with a request

athat the Attorney General, Minister of Justice or similar officer take any action necessary in order to require a named person to attend before the proper tribunal in that place and produce or give evidence in respect of the subject matter of the application, and

bthat the Attorney General, Minister of Justice or similar officer or the tribunal send to the Court a certified copy of the evidence produced or given before the tribunal.

75( 2) When the Court acts under subsection (1), it may assess the costs of so acting against one or more of the parties to the application or may deal with the costs as costs in the cause.

Request from extra-provincial tribunal

76( 1) When the Attorney General receives from an extra-provincial tribunal a request similar to that referred to in section 75 together with the necessary supporting material, it is the duty of the Attorney General to refer the request and the material to the Court.

76( 2) When a request is referred by the Attorney General under subsection (1), the Court shall require the person named in the request to attend before the Court and produce or give evidence in accordance with the request.

76( 3) The Attorney General may designate in writing any person employed within the Office of the Attorney General to execute the duties of the Attorney General under subsection (1).

Certified copy as evidence

77 A copy of an extra-provincial order certified as a true copy by a judge, other presiding officer or registrar of the extra-provincial tribunal that made the order or by a person charged with keeping the orders of the extra-provincial tribunal is proof in the absence of evidence to the contrary of the making of the order, the content of the order and the appointment and signature of the judge, presiding officer, registrar or other person.

Judicial notice

78 For the purposes of an application under this Act, the Court may take notice, without requiring formal proof, of the law of a jurisdiction outside the Province and of a decision of an extra-provincial tribunal.

PART 6

GENERAL

Agreement filed with Court

79( 1) Any agreement that contains a provision with respect to the support of a dependant by a person on whom an obligation to support is imposed by this Act, including the payment of an amount to the Minister of Social Development in respect of assistance provided under the Family Income Security Act or payments made in respect of the dependant under the Family Services Act, and that conforms with the requirements as to form that are specified in the regulations, may be filed with the Court in the manner provided by regulation, and on being filed has, for the purposes of enforcement, and subject to the provisions of this Act with respect to variation, the same effect as an order of the Court made under this Act and shall be deemed to be an order made by the Court.

79( 2) Even if the Minister of Social Development is not a party to an agreement referred to in subsection (1), the Minister of Social Development may file that agreement with the Court for purposes of enforcement if the Minister of Social Development is providing, or has provided, or has been requested to provide, assistance under the Family Income Security Act or any payment has been made under the Family Services Act in respect of any dependant referred to in the agreement.

Order to provide address of proposed respondent

80( 1) If it appears to the Court that, for the purpose of bringing an application under this Act or for the purpose of the enforcement of a parenting order or contact order, the proposed applicant or person in whose favour the order was made has need to learn or confirm the whereabouts of the proposed respondent or person against whom the order was made, the Court may order any person or public body to provide the Court with the address that is contained in the records in its possession or control, and the person or public body shall provide to the Court any particulars it is able to provide.

80( 2) The Court may give the particulars of the address provided to it under subsection (1) to the person or persons the Court considers appropriate for the purpose of bringing an application under this Act or for the purpose of the enforcement of a parenting order or contact order.

80( 3) A Court shall not make an order under subsection (1) if it appears to the Court that the information is being sought for a purpose other than to learn or confirm the whereabouts of the proposed respondent or of the person against whom the parenting order or contact order was made.

80( 4) The providing of information in accordance with an order under subsection (1) shall be deemed for all purposes not to be a contravention of any Act or regulation or any common law rule of confidentiality.

80( 5) This section binds the Crown in right of the Province.

Restraining order

81( 1) On application for a support order, a parenting order or a contact order, or when one of those orders is enforceable under this Act, the Court may make an order restraining a person from

amolesting, annoying, harassing or interfering with the applicant or any children under the lawful care and supervision of the applicant,

bmaking contact or endeavouring to make contact with or otherwise interfering with either the child or any person having a parenting order or contact order with respect to the child, or

centering premises where the child resides from time to time, including premises the person owns or has a right to possession of.

81( 2) If the Court is of the belief that the person named in an order under subsection (1) may not comply with the order, the Court may further order that the person comply with any or all of the following directions:

aenter into a recognizance, with or without sureties, in any reasonable amount the Court considers necessary;

breport to the Court or person designated by the Court for the period of time, and at the times and places, the Court considers necessary and reasonable; and

cprovide to the Court any documents that the Court considers appropriate.

81( 3) An application for a support order, a parenting order, a contact order or any other order or relief under this Act may be made on separate application or in conjunction with any other application.

Appeals

82( 1) An appeal lies to the Court of Appeal from any order made under this Act, in accordance with the regulations or with any other applicable Act or regulation, and on appeal the order may be confirmed, set aside or varied as the Court of Appeal determines.

82( 2) Despite subsection (1), an order made under this Act may be set aside or varied on appeal only if the Court of Appeal is of the opinion that there has been a miscarriage of justice, and no order shall be set aside on technical grounds only.

Offences and penalties

83( 1) A person who violates or fails to comply with subsection 46(4) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category C offence.

83( 2) A person who violates or fails to comply with any of the following provisions commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category E offence:

asubsection 4(2);

bsubsection 47(1).

83( 3) A person who knowingly provides misleading or false information under this Act to the child support service or the Court commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category E offence.

83( 4) Subject to subsection (5), a person who violates or fails to comply with a provision of the regulations commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category B offence.

83( 5) A person who violates or fails to comply with a provision of the regulations in respect of which a category has been prescribed by regulation commits an offence of the category prescribed by regulation.

Report, certificate or other document signed by Minister of Social Development as evidence

84 Any report, certificate or other document signed by or purporting to be signed by the Minister of Social Development or a designate of the Minister of Social Development is admissible in evidence in any court and is proof, in the absence of evidence to the contrary, of the facts stated in it without proof of the appointment, authority or signature of the Minister of Social Development or designate.

Computation of time under this Act

85( 1) In this section, “holiday” means

aa holiday as defined in the Interpretation Act,

bSaturday, and

cany other day observed as a holiday within the public service of the Province.

85( 2) When the time limit for the doing of anything under this Act expires or falls on a holiday, the time limit shall extend to, and the act or thing may be done on, the day first following that is not a holiday.

85( 3) When a period of time of less than seven days is prescribed under this Act or the regulations, holidays shall not be counted.

Immunity

86 No action, application or other proceeding lies or shall be instituted against any person authorized to act under this Act, or any other person employed or engaged in the administration or enforcement of this Act in relation to anything done or purported to be done in good faith, or in relation to anything omitted in good faith, under this Act by the person.

Administration

87 The Minister is responsible for the administration of this Act and may designate one or more persons to act on the Minister’s behalf.

Regulations

88( 1) The Lieutenant-Governor in Council may make regulations

aestablishing guidelines respecting the making of a child support order, including but not limited to guidelines

( i) respecting the way in which the amount of a child support order is to be determined,

( ii) respecting the circumstances in which discretion may be exercised in the making of a child support order,

( iii) respecting, for the purposes of section 22, the circumstances that constitute a change of circumstances,

( iv) respecting the determination of income for the purposes of the application of the guidelines,

( v) authorizing the Court to impute income for the purposes of the application of the guidelines, and

( vi) respecting the production of income information and providing for sanctions when that information is not provided;

bprescribing the form of the certificate issued by the Court under subsection 31(1);

crespecting the duties and functions of the child support service, established under subsection 33(1);

drespecting the process for recalculating child support under section 33, including establishing the factors and criteria that the child support service may use in the recalculation;

eprescribing eligibility criteria referred to in paragraph 33(4)(b), including prescribing the circumstances in which the child support service may or shall decline to recalculate;

frespecting applications for the registration of child support orders under subsection 34(1), including information that is required on registering;

gprescribing the circumstances in which the child support service may decline to register a child support order;

hrespecting requirements for the withdrawal of child support orders from the child support service under subsection 34(2), including but not limited to

( i) prescribing the persons or classes of persons who may withdraw a child support order, and

( ii) prescribing the time and manner in which a request for withdrawal may be made;

iprescribing clauses that are required to be included in a child support order under section 36;

jrespecting the manner in which child support orders that do not contain the clauses required under section 36 may be dealt with;

krespecting waivers under section 37, including but not limited to

( i) prescribing the time and manner in which a request for a waiver may be made, and

( ii) setting limits on the number of times a person may request a waiver;

lrespecting recalculation decisions under subsection 38(1), including but not limited to

( i) prescribing information that may or shall be included in a recalculation decision, and

( ii) prescribing the time for making a decision;

mprescribing an amount for the purposes of subsection 38(2);

nprescribing the manner in which the child support service shall provide a copy of its decision under subsection 38(3);

orespecting the correction of errors in recalculation decisions for the purposes of section 40, including but not limited to

( i) providing for procedures for corrections, and

( ii) respecting the provision of corrected decisions;

pprescribing information and documentation for the purposes of subsection 44(1);

qprescribing the form, manner and time for providing information and documentation for the purposes of subsection 44(1);

rprescribing the method of determining an income amount for the purposes of subsection 44(2);

sprescribing the form, manner and time for providing contact information for the purposes of section 45;

tprescribing financial information for the purposes of paragraph 46(1)(c);

uprescribing other information for the purposes of paragraph 46(1)(d);

vrespecting the collection, use and disclosure of personal information and financial information by the child support service;

wrespecting the disclosure of information received by the child support service, including but not limited to prescribing purposes for which the information may be disclosed;

xrespecting notices and information provided by the child support service, including the manner in which they may be provided;

yprescribing a time when notices or documents provided by the child support service are deemed to be received;

zrespecting any information or document that is required to be provided to the child support service, and the manner in which and time within which it shall be provided;

aaprescribing information for the purposes of paragraph 60(2)(d);

bbprescribing information for the purposes of subsection 66(2);

ccspecifying requirements as to form with respect to agreements under subsection 79(1);

ddproviding for the manner of filing agreements with the Court under subsection 79(1);

eerespecting appeals to the Court of Appeal for the purposes of subsection 82(1);

ffprescribing provisions of the regulations and categories of offences for the purposes of subsection 83(5);

ggrespecting the terms and conditions of any agreement or contract made under this Act;

hhdefining any word or expression used in but not defined in this Act for the purposes of this Act, the regulations or both;

iirespecting any other matter that may be necessary for the proper administration of this Act.

88( 2) A regulation authorized by this section may incorporate by reference, in whole or in part, and with any changes the Lieutenant-Governor in Council considers appropriate, any laws, by-laws or other regulatory instruments or any codes, standards, procedures or guidelines, as amended from time to time before or after the making of the regulation or as it read at a fixed time, and may require compliance with any laws, by-laws or other regulatory instruments or any codes, standards, procedures or guidelines incorporated in this manner.

PART 7

TRANSITIONAL AND SAVING PROVISIONS
AND CONDITIONAL AMENDMENTS

Order deemed a child support order

89 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order for the support of a dependant who is a child or a child at or over the age of majority that was made under section 115 of the Family Services Act and that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to be a child support order made under subsection 11(1) of this Act.

Order deemed a support order for a dependant who is not a child

90 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order for the support of a dependant who is neither a child nor a child at or over the age of majority that was made under section 115 of the Family Services Act and that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to be a support order for a dependant who is not a child under subsection 17(1) of this Act.

Discharge, variance, suspension of order

91 For greater certainty,

asection 22 of this Act applies with the necessary modifications to an order referred to in section 89 of this Act, and

bsection 23 of this Act applies with the necessary modifications to an order referred to in section 90 of this Act.

No change in circumstances

92( 1) For the purposes of subsection 22(2), the commencement of this Act does not constitute a change in the circumstances of a child.

92( 2) For the purposes of paragraph 23(2)(a), the commencement of this Act does not constitute a material change in the circumstances of the dependant or the person who is obligated to provide support.

Application requesting information

93 Despite the repeal of section 122.1 of the Family Services Act, the provisions of that section as they existed immediately before the commencement of this section continue to apply to an application made under that section before the commencement of this section.

Force and effect of certificate as judgement

94 Despite any inconsistency with a provision of this Act, on the commencement of this section, a certificate that, immediately before the commencement of this section, had the same force and effect as a judgment of the Court made under the Family Services Act as a result of the operation of section 124 of that Act, for the purposes of this Act, continues to have same force and effect as a judgment of the Court.

Order deemed to contain clause

95 An order deemed to be a child support order under section 89 shall be deemed to contain the clauses referred to in section 36.

Force and effect of filed agreement

96 Despite any inconsistency with a provision of this Act, on the commencement of this section, an agreement that, immediately before the commencement of this section, had the same force and effect as an order made by the Court under Part 7 of the Family Services Act as a result of the operation of section 134 of that Act, shall be deemed to have the same effect as an order of the Court made under this Act.

Proceeding commenced before this section comes into force

97 Despite any inconsistency with a provision of this Act, a proceeding commenced under Part 7 of the Family Services Act before the commencement of this section and not finally disposed of before the commencement of this section shall be dealt with and disposed of in accordance with this Act.

Person deemed to have parenting time and decision-making responsibility

98 Unless a court orders otherwise,

aa person who had custody of a child by virtue of an order made under Part 7 of the Family Services Act, immediately before the commencement of this section, is deemed to be a person to whom parenting time and decision-making responsibility have been allocated by virtue of a parenting order made under section 52 of this Act, and

ba parent who had access to a child by virtue of an order made under Part 7 of the Family Services Act, immediately before the commencement of this section, is deemed to be a person to whom parenting time has been allocated by virtue of a parenting order made under section 52 of this Act.

Person deemed to have contact order

99 Unless a court orders otherwise, a person who is not a parent who had access to a child by virtue of an order made under Part 7 of the Family Services Act, immediately before the commencement of this section, is deemed to be a person who has contact with the child under a contact order made under section 57 of this Act.

Discharge, variation, suspension of order

100 For greater certainty,

asubsection 52(6) of this Act applies with the necessary modifications to an order made under Part 7 of the Family Services Act referred to in section 98 of this Act, and

bsubsection 57(6) of this Act applies with the necessary modifications to an order made under Part 7 of the Family Services Act referred to in section 99 of this Act.

Notice not required

101 A person who is deemed under section 97 to be a person to whom parenting time or decision-making responsibility has been allocated is not required to give notice under section 59 or 60 of this Act if the custody order to which they are a party specifies that no notice is required in respect of a change in the place of residence by the person or a child to whom the order relates.

Order to apprehend a child continues in force

102 Despite the repeal of section 132.1 of the Family Services Act, an order made under that section that was valid immediately before the commencement of this section is valid and continues in force and the provisions of that section as they existed immediately before the commencement of this section continue to apply to the order.

Order to prevent removing child from Province continues in force

103 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order made under section 132.2 of the Family Services Act that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to have been made under section 67 of this Act.

Order made under section 130.1 of the Family Services Act continues in force

104 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order made under section 130.1 of the Family Services Act that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to have been made under subsection 71(2) of this Act.

Order of extra-provincial tribunal continues in force

105 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order recognized under section 130.2 of the Family Services Act that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to have been recognized under section 72 of this Act.

Order to supersede extra-provincial order continues in force

106 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order made under section 130.3 of the Family Services Act that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to have been made under section 73 of this Act.

Order to supersede extra-provincial order continues in force

107 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order made under section 130.4 of the Family Services Act that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to have been made under section 74 of this Act.

Order to provide address of proposed respondent

108 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order made under section 122 of the Family Services Act that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to have been made under section 80 of this Act.

Restraining order and ancillary terms of custody order continue in force

109 Despite any inconsistency with a provision of this Act, on the commencement of this section, an order made under section 128 or 132 of the Family Services Act that was in force immediately before the commencement of this section is valid and continues in force and shall be deemed to have been made under section 81 of this Act.

Conditional amendments

110( 1) If the Bill entitled An Act to Amend the Executive Council Act, introduced in the first session of the 60th Legislature, receives Royal Assent before this Bill, section 1 of this Act is amended in the definition “Minister” by striking out “Minister of Justice” and substituting “Minister of Justice and Public Safety”.

110( 2) If this Bill and the Bill entitled An Act to Amend the Executive Council Act, introduced in the first session of the 60th Legislature, receive Royal Assent on the same date, that Bill is deemed to have received Royal Assent immediately before this Bill.

PART 8

COMMENCEMENT

Commencement

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