British Columbia Bill 23 (Government) — 3rd Parliament, 37th Session — Previous Version 3
3-37 Gov Bill 23-3
British Columbia — Bills
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2002 Legislative Session: 3rd Session, 37th
Parliament
THIRD READING
The following electronic version is for
informational purposes only.
The printed version remains the official
version.
Certified correct as passed Third Reading on the 2nd day of
May, 2002
Ian D. Izard, Law Clerk
HONOURABLE GEOFF PLANT
ATTORNEY GENERAL AND
MINISTER
RESPONSIBLE FOR TREATY NEGOTIATIONS
BILL 23 – 2002
INTERJURISDICTIONAL SUPPORT ORDERS ACT
Contents
Section
Part 1 –
Definitions and Court Designation
Definitions
Designation of court
Part 2 – Claims if no Support Order Exists
Definitions
Application of
Part 2
Division 1 – Claimant in British Columbia
Preparing support application – no provisional order required
Providing support application
Preparing support application – provisional order required
Division 2 – Claimant outside British Columbia
Application of Division 2
Dealing with a support application
Support application before British Columbia court
Parentage
Application of laws for child's and claimant's support
Powers of British Columbia court respecting support orders
Order if respondent fails to comply with notice
Sending support order to reciprocating jurisdiction
Part 3 – Registration of Orders made outside British Columbia
Application
Receipt of an order in British Columbia
Registration of extra-provincial or foreign order
Foreign orders after registration
Effect of setting aside registration of foreign orders
Part 4 – Variation of a Support Order
Definitions
Restrictions
Variation of registered orders
Variation in a reciprocating jurisdiction
Division 1 – Variation if Applicant in British Columbia
Preparing support variation application – no provisional order required
Providing support variation application
Preparing support variation application – provisional order required
Division 2 – Variation if Applicant outside British Columbia
Application of Division 2
Dealing with a support variation application
Support variation application before British Columbia court
Application of laws for child's and party's support
Powers of British Columbia court respecting variation orders
Order if respondent fails to comply with notice
Sending variation order to reciprocating jurisdiction
Division 3 – Variation of Registered Orders if Jurisdiction of British Columbia Court Accepted
British Columbia court varying registered orders
Part 5 – Appeals
Appeals
Part 6 – General Matters
Designated authority
Translation of order or document
Order or application not expressed in Canadian currency
Right of assignment
Terminology
Documents and law of reciprocating jurisdiction
Other remedies
Regulations
Transitional
46-55
Consequential Amendments
Commencement
HER MAJESTY, by and with the advice and consent of the Legislative Assembly
of the Province of British Columbia, enacts as follows:
Part 1 –
Definitions and Court
Designation
Definitions
(1) In this Act:
"British Columbia court" means a court designated
under
section 2;
"certified" means, when used to refer to a copy of
an order or reasons, certified by the court or administrative body that made the
order or gave the reasons;
"child" has the same meaning as in the Family
Relations Act ;
"designated authority" means a person appointed
under
section 37 (1) and includes a person to whom a power or duty is delegated
under
section 37 (2);
"director" means the Director of Maintenance
Enforcement designated under
section 2 (1) of the Family Maintenance
Enforcement Act ;
"former enactment" means
Part 8 of the Family
Relations Act , which
Part is repealed by this Act;
"provisional order" means
(
a) a support order of a court in British Columbia that
has no effect until confirmed by a court in a reciprocating jurisdiction, or
(
b) a similar order made in a reciprocating jurisdiction
and received for confirmation in British Columbia;
"provisional variation order" means
(
a) a variation of a support order of a court in British
Columbia that has no effect until confirmed by a court in a reciprocating
jurisdiction, or
(
b) a similar order made in a reciprocating jurisdiction
and received for confirmation in British Columbia;
"reciprocating jurisdiction" means a jurisdiction
declared in the regulations made under
section 44 (3) to be a reciprocating
jurisdiction;
"support" includes support, maintenance or alimony
payable for a person or for the child of a person or for both;
"support order" means an order or interim order,
made by a court or by an administrative body, that requires the payment of
support, and includes the provisions of a written agreement requiring the
payment of support if those provisions are enforceable in the jurisdiction in
which the agreement was made as if they were contained in an order of a court or
administrative body of that jurisdiction.
(2) For the purposes of this Act, the definition of a word
or expression in the Family Relations Act applies to that word or
expression when used in this Act unless
(
a) the word or expression is defined in this Act, or
(
b) there is a contrary intention reflected in this
Act.
(3) A reference in this Act to a variation of an order
includes a rescission of an order.
Designation of court
2 The minister may designate one or more courts in
British Columbia for the purpose of proceedings under this Act.
Part 2 – Claims if no Support Order
Exists
Definitions
3 In this Part:
"claimant" means a person who applies under this
Act for support;
"respondent" means the person from whom support is
sought.
Application of
Part 2
4 This Part applies to a claim for support for
(
a) a claimant, only if there is no support order in
effect requiring the respondent to pay support for the claimant, and
(
b) a child, only if there is no support order in effect
requiring the respondent to pay support for the child.
Division 1 – Claimant in
British Columbia
Preparing support application – no
provisional order required
(1) If a claimant ordinarily resides in British
Columbia and believes that the respondent ordinarily resides in a reciprocating
jurisdiction that does not require a provisional order, the claimant may start a
process in British Columbia that could result in a support order being made in
the reciprocating jurisdiction.
(2) To start the process referred to in subsection (1),
the claimant must complete a support application that includes the
following:
(
a) the name and address for service of the claimant;
(
b) a copy of the specific statutory or other legal
authority on which the claimant's application for support is based, unless the
claimant is relying on the law of the jurisdiction in which the respondent
ordinarily resides;
(
c) the amount and nature of support claimed;
(
d) a sworn document described in subsection (3);
(
e) any other information or documents required by the
regulations.
(3) The sworn document must include the following:
(
a) the respondent's name and any information known to the
claimant that can be used to locate or identify the respondent;
(
b) the financial circumstances of the respondent, to the
extent known by the claimant;
(
c) the name of each person for whom support is claimed
and the date of birth of any child for whom support is claimed;
(
d) the evidence in support of the claimant's application
that is relevant to establishing entitlement to or the amount of support,
including,
(
i) if support is claimed for a child, details of the
parentage of the child and information about the child's financial and other
circumstances, and
(ii) if support is claimed for the claimant, information
about the claimant's financial and other circumstances and the claimant's
relationship with the respondent.
(4) The claimant is not required to notify the respondent
that a process has been started under this section.
Providing support application
(1) After completing the support application
described in
section 5, the claimant must submit the support application to the
designated authority in British Columbia.
(2) On receiving a support application, the designated
authority must as soon as practicable
(
a) review the support application to ensure that it is
complete, and
(
b) send a copy of the completed support application to
the appropriate authority in the reciprocating jurisdiction in which the
claimant believes the respondent ordinarily resides.
(3) On receiving a request for further information or
documents from a reciprocating jurisdiction under an enactment in that
jurisdiction that corresponds to
section 10 (2) (a), the claimant must provide
the further information or documents within the time referred to in the
request.
(4) On receiving a certified copy of an order and reasons,
if any, from a reciprocating jurisdiction under an enactment in that
jurisdiction that corresponds to
section 15, the designated authority must send
a copy of the order and reasons, if any, to the claimant.
(5) An order referred to in subsection (4) has, after
filing in a court in British Columbia, the same effect as an order of the court
with which it is filed.
(6) If an order referred to in subsection (4) is filed
with a court in British Columbia, the court has the same control and
jurisdiction over the order as if it were an order of that court.
Preparing support application --
provisional order required
(1) If a claimant
(
a) ordinarily resides in British Columbia, and
(
b) believes that the respondent ordinarily resides in a
reciprocating jurisdiction that requires a provisional order,
a court in British Columbia may, on application by the
claimant and without notice to and in the absence of the respondent, make a
provisional order taking into account the legal authority on which the
claimant's application for support is based.
(2) The application referred to in subsection (1) must
include the information described in
section 5 (2) and (3).
(3) Evidence in proceedings under subsection (1) or
(5) may be given orally, in writing or as the court may allow.
(4) If a provisional order is made under this section, the
designated authority must send to the reciprocating jurisdiction
(a) 3 certified copies of the provisional order, and
(
b) a support application referred to in subsection
(2).
(5) If, during a proceeding for confirmation of a
provisional order, a court in a reciprocating jurisdiction sends a matter back
for further evidence to the court in British Columbia that made the provisional
order, the court in British Columbia must, after giving notice to the claimant,
receive further evidence.
(6) If evidence is received under subsection (5), the
court in British Columbia must send to the court in the reciprocating
jurisdiction
(
a) a certified copy of the evidence, and
(
b) if the court in British Columbia modified its
provisional order, 3 certified copies of the order, as modified.
(7) If a provisional order made under this
section comes
before a court in a reciprocating jurisdiction and confirmation is denied in
respect of one or more persons for whom support is sought, the court in British
Columbia that made the provisional order may, on application within 6 months
after the denial of confirmation, re-open the matter, receive further evidence
and make a new provisional order for a person in respect of whom confirmation
was denied.
Division 2 – Claimant outside
British Columbia
Application of Division 2
(1) In this Division, "support
application" means the orders and documents described in subsection (2) of
this section.
(2) This Division applies in respect of
(
a) a document from a reciprocating jurisdiction
corresponding to a support application referred to in
section 5 (2), and
(
b) a provisional order referred to in paragraph (
b) of
the definition of "provisional order".
Dealing with a support
application
(1) Subject to subsections (2) and (3), if the
designated authority receives a support application from an appropriate
authority in a reciprocating jurisdiction, with information that the respondent
named in the support application ordinarily resides in British Columbia, the
designated authority must send the application to the British Columbia
court.
(2) If the designated authority believes that the
respondent ordinarily resides in another reciprocating jurisdiction in Canada,
the designated authority must
(
a) send the support application to the appropriate
authority in that other reciprocating jurisdiction, and
(
b) notify the appropriate authority in the originating
reciprocating jurisdiction that it has done so.
(3) If the designated authority
(
a) is unable to determine where the respondent resides,
(
b) believes that the respondent ordinarily resides in a
jurisdiction outside Canada,
the designated authority must return the support
application to the appropriate authority in the originating reciprocating
jurisdiction with any information that the designated authority has respecting
the location and circumstances of the respondent.
(4) The British Columbia court receiving a support
application under subsection (1) must serve on the respondent
(
a) a copy of the support application, and
(
b) a notice requiring the respondent to appear at a place
and time set out in the notice and to provide the information or documents
required by the regulations.
(5) If the British Columbia court is unable to serve the
respondent under subsection (4), the designated authority must send the support
application back to the appropriate authority in the originating reciprocating
jurisdiction with any information that the designated authority has respecting
the location and circumstances of the respondent.
Support application before British
Columbia court
(1) If a support application comes before a
British Columbia court, that court must consider
(
a) the evidence provided to the British Columbia court,
and
(
b) the documents received from the reciprocating
jurisdiction.
(2) If the British Columbia court needs further
information or documents from the claimant to consider making a support order,
that court
(
a) must direct the designated authority to contact the
claimant or the appropriate authority in the reciprocating jurisdiction to
request the information or documents,
(
b) must adjourn the hearing, and
(
c) may make an interim support order.
(3) If the British Columbia court does not receive the
information or documents requested under subsection (2) within 18 months after
the request is made, it may dismiss the support application and terminate an
interim support order made under subsection (2) (c).
(4) The dismissal of a support application under
subsection (3) does not preclude the claimant from submitting a new support
application.
Parentage
(1) If the parentage of a child is in issue and
has not previously been determined, the British Columbia court may decide that
issue.
(2) A determination of parentage under this
section has
effect only for the purposes of proceedings related to support for the child
under this Act.
(3) Section 95 of the Family Relations Act applies
to the determination of parentage under this section.
Application of laws for child's and
claimant's support
(1) In determining entitlement to support for a
child, the British Columbia court must,
(
a) subject to paragraph (b), apply the law of the
jurisdiction in which the child ordinarily resides, and
(
b) if there is no entitlement to support for the child
under paragraph (a), apply the law of British Columbia.
(2) In determining the amount of support to be paid for a
child, the British Columbia court must apply the law of British Columbia.
(3) In determining the entitlement to and amount of
support for a claimant, the British Columbia court must,
(
a) subject to paragraph (b), apply the law of British
Columbia, and
(
b) if the claimant is not entitled to support under
paragraph (a), apply the law of the jurisdiction in which the claimant and the
respondent last maintained a common habitual residence.
Powers of British Columbia court
respecting support orders
(1) After considering the evidence and documents
with respect to a support application, a British Columbia court may do the
following in respect of a claimant, a child or both:
(
a) make a support order;
(
b) make an interim support order and adjourn the hearing
to a specified date;
(
c) adjourn the hearing to a specified date without making
an interim support order;
(
d) refuse to make a support order.
(2) An order under this
section may also provide for one
or more of the following:
(
a) payment periodically, annually or otherwise, and
either for an indefinite or limited period or until the happening of a specified
event;
(
b) payment of a lump sum directly or in trust on terms
provided;
(
c) charging of property with payment under the order;
(
d) payment of support in respect of any period before the
order is made;
(
e) payment for expenses arising from and incidental
(
i) the prenatal care of the mother or child, or
(ii) the birth of a child.
(3) A British Columbia court that refuses to make a
support order must record the reasons for its refusal.
Order if respondent fails to comply
with notice
(1) If the respondent does not appear as
required in the notice served on the respondent under
section 9 (4) (b), or does
not provide the information or documents referred to in that notice, the British
Columbia court may make an order under
section 13 in the absence of the
respondent or in the absence of the information or documents, and in making the
order may draw any inference it considers appropriate.
(2) If a respondent does not appear as required, the
British Columbia court must send a copy of the order to the respondent.
Sending support order to
reciprocating jurisdiction
15 When the designated authority receives an order
made under
section 13 or 14, the designated authority must as soon as
practicable send a certified copy of it with reasons, if any, to the appropriate
authority in the reciprocating jurisdiction in which the claimant's support
application originated.
Part 3 – Registration of Orders made
outside British Columbia
Application
(1) In this Part:
"extra-provincial order" means
(
a) a support order that is made in a reciprocating
jurisdiction in Canada, or
(
b) a variation of a support order if the variation is
made in a reciprocating jurisdiction in Canada,
but does not include a provisional order or a provisional
variation order;
"foreign order" means
(
a) a support order that is made in a reciprocating
jurisdiction outside Canada, or
(
b) a variation of a support order if the variation is
made in a reciprocating jurisdiction outside Canada,
but does not include a provisional order or a provisional
variation order.
(2) This Part applies only with respect to
extra-provincial orders and foreign orders.
Receipt of an order in British
Columbia
(1) For an order to which this Part applies to
be registered, a certified copy of the order must be sent to the designated
authority.
(2) On receiving a certified copy of an order under
subsection (1), the designated authority must send the certified copy of the
order to the British Columbia court.
Registration of extra-provincial or
foreign order
(1) On receiving a certified copy of an order
under
section 17 (2), the British Columbia court must register it as an order of
that court.
(2) On an order being registered under subsection (1), the
order, from the date it is registered, has the same effect as a support order
made by a court in British Columbia.
(3) Subject to
section 19, an order registered under
subsection (1) may be enforced, with respect both to arrears accrued before
registration and obligations accruing after registration, in the same manner as
a support order made by a court in British Columbia, or may be varied under this
Act.
(4) Subject to
section 19, an order registered under
subsection (1) may be filed with the director.
(5) This
section applies to a registered order whether it
is made before, on or after the date this
section comes into force.
Foreign orders after
registration
(1) After registration of a foreign order under
section 18, the British Columbia court must send notice of the registration to
any party to the order believed to ordinarily reside in British Columbia.
(2) A party to the foreign order may apply to the British
Columbia court to set aside the registration
(
a) within 30 days after receiving notice of the
registration, and
(
b) on giving notice of the application in accordance with
the regulations.
(3) On an application under subsection (2), the British
Columbia court may
(
a) confirm the registration, or
(
b) set aside the registration if the British Columbia
court determines that
(
i) a party to the foreign order did not have proper
notice or a reasonable opportunity to be heard in the proceeding in which the
foreign order was made,
(ii) the foreign order is contrary to the public policy of
British Columbia, or
(iii) the court or administrative body that made the
foreign order did not have jurisdiction to make the order.
(4) For the purposes of subsection (3) (b) (iii), a court
or administrative body had jurisdiction
(
a) if both parties to the foreign order ordinarily
resided in the reciprocating jurisdiction outside Canada at the time the order
was made, or
(
b) if a party did not ordinarily reside in the
reciprocating jurisdiction outside Canada but was subject to the jurisdiction of
the court or administrative body that made the foreign order at the time the
order was made.
(5) A British Columbia court that sets aside the
registration under subsection (3) must record the reasons for its decision.
(6) The British Columbia court must give notice of its
decision or order, and written reasons, if any, to the party that did not
request the registration, and the designated authority.
Effect of setting aside
registration of foreign orders
(1) If the registration of a foreign order is
set aside under
section 19, the foreign order must be dealt with under this Act
as if it were a document corresponding to a support application received under
section 9 (1) or a support variation application received under
section 29
(1).
(2) If the foreign order does not contain the necessary
information or documents required for a support application or a support
variation application, the designated authority must request the necessary
information and documents from the party who applied to register the order or
the appropriate authority of the reciprocating jurisdiction that requested the
registration.
(3) Until the court receives the required information and
documents under subsection (2), no further steps may be taken under this
Act.
Part 4 – Variation of a Support
Order
Definitions
21 In this Part:
"applicant" means a party applying to vary a
support order;
"respondent" means a party responding to a support
variation application;
"support order" means a support order as defined in
section 1 that is
(
a) made in British Columbia, or
(
b) made in a reciprocating jurisdiction
but does not include a provisional order or a provisional
variation order.
Restrictions
22 Nothing in this Part
(
a) authorizes a judge of the Provincial Court to vary a
support order made in Canada by a federally appointed judge, or
(
b) allows a support order originally made under the
Divorce Act (Canada) to be varied except as authorized by a federal
enactment.
Variation of registered orders
23 It is not necessary to re-register an order that
is registered under
Part 3 and subsequently varied under this Part.
Variation in a reciprocating
jurisdiction
24 When a support order originally made or
registered in British Columbia is varied in a reciprocating jurisdiction under
provisions that correspond to Division 2 of this Part, it is varied in British
Columbia.
Division 1 – Variation if
Applicant in British Columbia
Preparing support variation
application – no provisional order required
(1) If an applicant ordinarily resides in
British Columbia and believes that the respondent ordinarily resides in a
reciprocating jurisdiction that does not require a provisional variation order,
the applicant may start a process in British Columbia that could result in the
variation of a support order being made in the reciprocating jurisdiction.
(2) To start the process referred to in subsection (1),
the applicant must complete a support variation application that includes the
following:
(
a) the name and address for service of the applicant;
(
b) a certified copy of the support order;
(
c) a copy of the specific statutory or other legal
authority on which the application for variation is based, unless the applicant
is relying on the law of the jurisdiction in which the respondent ordinarily
resides;
(
d) the details of the variation applied for, which may
include a termination of the support order;
(
e) a sworn document described in subsection (3);
(
f) any other information or documents required by the
regulations.
(3) The sworn document must include the following:
(
a) the respondent's name and any information known to the
applicant that can be used to locate or identify the respondent;
(
b) the financial circumstances of the respondent, to the
extent known by the applicant, including whether the respondent is or was
receiving social assistance;
(
c) the name of each person, to the extent known by the
applicant, for whom support is payable or who will be affected by the variation
if granted;
(
d) the evidence in support of the application,
including
(
i) if the variation applied for would affect support for
a child, information about the child's financial and other circumstances,
and
(ii) if support to the applicant or respondent is an
issue, information about their relationship;
(
e) prescribed information about the applicant's financial
circumstances.
(4) The applicant is not required to notify the respondent
that a process has been started under this section.
Providing support variation
application
(1) After completing the support variation
application described in
section 25, the applicant must submit the support
variation application to the designated authority in British Columbia.
(2) On receiving a support variation application, the
designated authority must, as soon as practicable,
(
a) review the support variation application to ensure
that it is complete, and
(
b) send a copy of the completed support variation
application to the appropriate authority in the reciprocating jurisdiction in
which the applicant believes the respondent ordinarily resides.
(3) On receiving a request for further information or
documents from a reciprocating jurisdiction under an enactment in that
jurisdiction that corresponds to
section 30 (2) (a), the applicant must provide
the further information or documents within the time referred to in the
request.
(4) On receiving a certified copy of an order and reasons,
if any, from a reciprocating jurisdiction under an enactment in that
jurisdiction that corresponds to
section 34, the designated authority must send
a copy of the order and reasons, if any, to the applicant and the British
Columbia court.
Preparing support variation
application – provisional order required
(1) If the applicant
(
a) ordinarily resides in British Columbia, and
(
b) believes that the respondent ordinarily resides in a
reciprocating jurisdiction that requires a provisional variation order,
the British Columbia court may, on application by the
applicant and without notice to and in the absence of the respondent, make a
provisional variation order taking into account the legal authority on which the
application for variation is based.
(2) The application referred to in subsection (1) must
include the information described in
section 25 (2) and (3).
(3) Evidence in proceedings under subsection (1) or
(5) may be given orally, in writing or as the court may allow.
(4) If a provisional variation order is made under this
section, the designated authority must send to the reciprocating
jurisdiction
(a) 3 certified copies of the provisional variation order,
and
(
b) a support variation application referred to in
section
25 (2).
(5) If, during a proceeding for confirmation of a
provisional variation order, a court in a reciprocating jurisdiction sends a
matter back for further evidence to the British Columbia court that made the
provisional variation order, the British Columbia court must, after giving
notice to the applicant, receive further evidence.
(6) If evidence is received under subsection (5), the
British Columbia court must send to the court in the reciprocating
jurisdiction
(
a) a certified copy of the evidence, and
(
b) if the British Columbia court modified its provisional
variation order, 3 certified copies of the order, as modified.
(7) If a provisional variation order made under this
section comes before a court in a reciprocating jurisdiction and confirmation is
denied in respect of one or more persons, the British Columbia court that made
the provisional variation order may, on application within 6 months after the
denial of confirmation, re-open the matter, receive further evidence and make a
new provisional variation order for a person in respect of whom confirmation was
denied.
(8) Despite
section 22 (a), a judge of the Provincial
Court may make a provisional variation order that varies a support order made in
Canada by a federally appointed judge.
Division 2 – Variation if
Applicant outside British Columbia
Application of Division 2
(1) In this Division, "support variation
application" means the orders and documents described in subsection (2) of
this section.
(2) This Division applies in respect of
(
a) a document from a reciprocating jurisdiction
corresponding to a support variation application referred to in
section 25 (2),
and
(
b) a provisional variation order referred to in paragraph
(
b) of the definition of "provisional variation order".
Dealing with a support variation
application
(1) Subject to subsections (2) and (3), if the
designated authority receives a support variation application from an
appropriate authority in a reciprocating jurisdiction, with information that the
respondent named in the support variation application ordinarily resides in
British Columbia, the designated authority must send the application to the
British Columbia court.
(2) If the designated authority believes that the
respondent ordinarily resides in another reciprocating jurisdiction in Canada,
the designated authority must
(
a) send the support variation application to the
appropriate authority in that other reciprocating jurisdiction, and
(
b) notify the appropriate authority in the originating
reciprocating jurisdiction that it has done so.
(3) If the designated authority
(
a) is unable to determine where the respondent resides,
(
b) believes that the respondent ordinarily resides in a
jurisdiction outside Canada,
the designated authority must return the support variation
application to the appropriate authority in the originating reciprocating
jurisdiction with any information that the designated authority has respecting
the location and circumstances of the respondent.
(4) The British Columbia court receiving a support
variation application under subsection (1) must serve on the respondent
(
a) a copy of the support variation application, and
(
b) a notice requiring the respondent to appear at a place
and time set out in the notice and to provide the information or documents
required by the regulations.
(5) If the British Columbia court is unable to serve the
respondent under subsection (4), the designated authority must send the
documents back to the appropriate authority in the reciprocating jurisdiction
that sent the support variation application with any information that the
designated authority has respecting the location and circumstances of the
respondent.
Support variation application
before British Columbia court
(1) If a support variation application comes
before a British Columbia court, that court must consider
(
a) the evidence provided to the British Columbia court,
and
(
b) the documents received from the reciprocating
jurisdiction.
(2) If the British Columbia court needs further
information or documents from the applicant to consider making a support
variation order, that court
(
a) must direct the designated authority to contact the
applicant or the appropriate authority in the reciprocating jurisdiction to
request the information and documents,
(
b) must adjourn the hearing, and
(
c) may make an interim support variation order.
(3) If the British Columbia court does not receive the
information or documents requested under subsection (2) within 18 months after
the request is made, it may dismiss the support variation application and
terminate an interim support variation order made under subsection (2) (c).
(4) The dismissal of the support variation application
under subsection (3) does not preclude the applicant from submitting a new
support variation application.
Application of laws for child's and
party's support
(1) In determining entitlement to receive or to
continue to receive support for a child, the British Columbia court must
(
a) subject to paragraph (b), apply the law of the
jurisdiction in which the child ordinarily resides, and
(
b) if there is no entitlement to support for the child
under paragraph (a), apply the law of British Columbia.
(2) In determining the amount of support to be paid for a
child, the British Columbia court must apply the law of the jurisdiction in
which the person liable to pay the support ordinarily resides.
(3) In determining a party's entitlement to receive or
continue to receive support other than child support, and the amount of support,
the British Columbia court must
(
a) subject to paragraph (b), apply the law of British
Columbia, and
(
b) if the party is not entitled to support under
paragraph (a), apply
(
i) the law of the jurisdiction in which the party
ordinarily resides, or
(ii) if the party is not entitled to support under
subparagraph (i), the law of the jurisdiction in which the parties last
maintained a common habitual residence.
Powers of British Columbia court
respecting variation orders
(1) After considering the evidence and documents
with respect to a support variation application, a British Columbia court may do
the following in respect of a party, a child or both:
(
a) make a support variation order;
(
b) make an interim support variation order and adjourn
the hearing to a specified date;
(
c) adjourn the hearing to a specified date without making
an interim support variation order;
(
d) refuse to make a support variation order.
(2) An order under this
section may also provide for one
or more of the following:
(
a) payment periodically, annually or otherwise, and
either for an indefinite or limited period or until the happening of a specified
event;
(
b) payment of a lump sum directly or in trust on terms
provided;
(
c) charging of property with payment under the order;
(
d) payment of support in respect of any period before the
order is made;
(
e) payment for expenses arising from and incidental
(
i) the prenatal care of the mother or child, or
(ii) the birth of a child.
(3) A British Columbia court that refuses to make a
support variation order must record the reasons for its refusal.
Order if respondent fails to comply
with notice
(1) If the respondent does not appear as
required in the notice served on the respondent under
section 29 (4) (b), or
does not provide the information or documents referred to in that notice, the
British Columbia court may make an order under
section 32 in the absence of the
respondent or in the absence of the information or documents, and in making the
order may draw any inference it considers appropriate.
(2) If a respondent does not appear as required, the
British Columbia court must send a copy of the order to the respondent.
Sending variation order to
reciprocating jurisdiction
34 When the designated authority receives an order
made under
section 32 or 33, the designated authority must as soon as
practicable send a certified copy of it with reasons, if any, to
(
a) the appropriate authority in the reciprocating
jurisdiction in which the applicant ordinarily resides, and
(
b) if the support order was originally made in another
reciprocating jurisdiction, the appropriate authority in that jurisdiction.
Division 3 – Variation of
Registered Orders if Jurisdiction of British Columbia Court Accepted
British Columbia court varying
registered orders
(1) The British Columbia court may, after taking
into account any right of a government or agency of a government under
section
40, vary a support order registered in British Columbia under
Part 3 of this Act
or under the former enactment if
(
a) both the applicant and respondent accept the British
Columbia court's jurisdiction,
(
b) both the applicant and respondent ordinarily reside in
British Columbia, or
(
c) the respondent ordinarily resides in British Columbia
and the applicant has registered the support order.
(2) The Family Relations Act applies for the
purposes of varying a support order under the circumstances referred to in
subsection (1), as if the order being varied was an order for support under that
Act.
Part 5 – Appeals
Appeals
(1) Subject to subsections (2) and (5) to (7), a
party to a proceeding under this Act or the designated authority may appeal any
ruling, decision or order of
(
a) the Provincial Court, made under this Act to the
Supreme Court, and
(
b) the Supreme Court, made under this Act to the Court of
Appeal, in accordance with the Court of Appeal Act .
(2) Subsection (1) does not apply to an interim order of
the Provincial Court under this Act.
(3) An appeal under subsection (1) (
a) may be brought
(
a) filing a notice of appeal in a registry of the Supreme
Court,
(
b) serving a copy of the notice of appeal on the parties
to the proceeding in which the order of the Provincial Court was made, unless a
judge of the Supreme Court orders otherwise, and
(
c) filing a copy of the notice of appeal in the registry
of the Provincial Court at the location where the order was made.
(4) The Rules of Court apply to an appeal under subsection
(1) (
a) to the extent that they are consistent with this section.
(5) Despite
section 14 of the Court of Appeal Act ,
an appeal must be commenced within 90 days after the date the ruling, decision
or order of the British Columbia court is entered as a judgment of the
court.
(6) Despite subsection (5), the court to which an appeal
is made under this
section may extend the appeal period before or after the
appeal period has expired.
(7) A respondent in an appeal under this
section may
appeal a ruling, decision or order in the same proceeding within 30 days after
the receipt of the notice of appeal.
(8) An order under appeal remains in force until the
determination of the appeal, unless otherwise ordered by the court that made the
order.
(9) The designated authority must notify the appropriate
authority in the reciprocating jurisdiction of a court's decision on an appeal
under this section.
(10) If an appeal under this
section is commenced in the
Supreme Court, the Supreme Court may do one or more of the following:
(
a) confirm the order of the Provincial Court;
(
b) set aside the order of the Provincial Court;
(
c) make any order that the Provincial Court could have
made;
(
d) direct the Provincial Court to conduct a new
hearing.
Part 6 – General Matters
Designated authority
(1) The minister may appoint one or more persons
to act as the designated authority in British Columbia for the purposes of this
Act.
(2) A person appointed under subsection (1) may, in
writing, delegate any power or duty under this Act to any other person or
persons.
Translation of order or
document
(1) If an order or other document is to be sent
to a reciprocating jurisdiction that requires the order or document to be
accompanied by a translation into the other language that is certified by the
translator as being an accurate translation.
(2) An order or other document to which this Act applies
that is
(
a) received by the designated authority or a British
Columbia court, and
certified by the translator as being an accurate translation.
Order or application not expressed
in Canadian currency
39 If an order or other document made in a
reciprocating jurisdiction
(
a) is received by a designated authority or a British
Columbia court, and
(
b) refers to an amount of support that is not expressed
in Canadian currency
the designated authority must convert the amount into
Canadian currency in accordance with the regulations, if the conversion is
necessary for the British Columbia court to deal with the order or
application.
Right of assignment
40 Any government or agency of a government that is
providing or has provided social assistance to a person has the same rights as
that person to commence or participate in proceedings under this Act for the
purpose of
(
a) obtaining support or a variation of support,
(
b) responding to an application for a variation of
support payments or arrears under a support order,
(
c) responding to an application to suspend enforcement of
support payments or arrears under a support order,
(
d) making or responding to an application to the British
Columbia court to set aside the registration of a foreign order under
section
19, or
(
e) appealing or responding to an appeal of a ruling,
decision or order of the British Columbia court under this Act,
and has the right to seek an order of reimbursement of the
social assistance it provided to that person.
Terminology
41 If, in a proceeding under this Act, a document
from a reciprocating jurisdiction contains terminology different from the
terminology in this Act or contains terminology or is in a form different than
that customarily in use in the British Columbia court, the British Columbia
court must give a broad and liberal
interpretation to the terminology or form so
as to give effect to the document.
Documents and law of reciprocating
jurisdiction
(1) In a proceeding under this Act,
(
a) the British Columbia court must take judicial notice
of the law of a reciprocating jurisdiction and, if required, apply it, and
(
b) an enactment of a reciprocating jurisdiction may be
pleaded and proved for the purposes of this Act by producing a copy of the
enactment received from the reciprocating jurisdiction.
(2) In a proceeding under this Act, a document purporting
to be signed by a judge, officer of a court or public officer in a reciprocating
jurisdiction is, unless the contrary is proved, proof of the appointment,
signature and authority of the person who signed the document.
(3) Statements in writing sworn to by the maker,
depositions or transcripts of evidence taken in a reciprocating jurisdiction may
be received in evidence by a British Columbia court under this Act.
Other remedies
43 This Act does not impair any other remedy
available to a person, the government of British Columbia, a province or
territory of Canada, a jurisdiction outside Canada, or a political subdivision
or official agency of the government of British Columbia or of a province or
territory of Canada or of a jurisdiction outside Canada.
Regulations
(1) The Lieutenant Governor in Council may make
regulations as authorized by
section 41 of the
Interpretation Act .
(2) Without limiting subsection (1), the Lieutenant
Governor in Council may make regulations respecting the following:
(
a) information or documents required for the purposes of
this Act;
(
b) the giving of documents required under this Act;
(
c) the giving of notices under
section 19;
(
d) proceedings under this Act;
(
e) forms for the purposes of this Act;
(
f) the conversion of the amounts of support to Canadian
currency.
(3) Without limiting subsection (1), if the Lieutenant
Governor in Council is satisfied that laws are or will be in effect in a
jurisdiction for the reciprocal enforcement of support orders made in British
Columbia on a basis substantially similar to this Act, the Lieutenant Governor
in Council may make regulations declaring that jurisdiction to be a
reciprocating jurisdiction.
(4) In declaring a jurisdiction to be a reciprocating
jurisdiction under subsection (3), the Lieutenant Governor in Council may impose
any conditions with respect to the enforcement and recognition in British
Columbia of support orders made or registered in that jurisdiction.
(5) The Lieutenant Governor in Council may, by regulation,
revoke any declaration made under subsection (3), and the jurisdiction with
respect to which the declaration was made ceases to be a reciprocating
jurisdiction for the purposes of this Act.
Transitional
(1) An order made or registered under the former
enactment, as it was before
section 55 comes into force, continues to be valid
and may be varied or otherwise dealt with under this Act and enforced under the
Family Maintenance Enforcement Act .
(2) If notice of registration of a final order is given to
the respondent before the coming into force of
section 55, an application to set
aside the registration of the final order must be dealt with in accordance with
the former enactment as if the former enactment had not been repealed.
(3) An application under the former enactment for a
provisional order or a provisional variation order by a person ordinarily
resident in British Columbia, made before the coming into force of
section 55,
may be continued after the coming into force of
section 55 as if the former
enactment had not been repealed.
(4) If a final order has been received for registration
under the former enactment but has not been registered in a British Columbia
court on the coming into force of the
section 55, the final order must be dealt
with in accordance with this Act as if it were an extra-provincial order or
foreign order, as the case may be, received under
Part 3 of this Act.
(5) If a provisional order or a provisional variation
order is received under the former enactment before the coming into force of
section 55, the provisional order or provisional variation order must be dealt
with in accordance with this Act as if the order were received under
Part 2 or
Part 4 of this Act, as the case may be.
(6) The court designated by the Attorney General for the
purpose of the registration of final orders or the filing of confirmation orders
under
Part 8 of the Family Relations Act , may file with the director
under the Family Maintenance Enforcement Act all final orders and
confirmation orders that were registered or filed with the court, before the
coming into force of
section 55, as if
Part 8 of the Family Relations Act
was not repealed.
Consequential
Amendments
Enforcement of Canadian Judgments Act
Section 2 (1) (
c) of the Supplement to the Enforcement of Canadian
Judgments Act, R.S.B.C. 1996, c. 115, is repealed and the following
substituted:
(
c) for maintenance or support, including an order
enforceable under the Family Maintenance Enforcement Act , or
Family Maintenance Enforcement Act
Section 1 (1) of the Family Maintenance Enforcement Act, R.S.B.C.
1996, c. 127, is amended by repealing the
definitions of "maintenance
order" and "reciprocating jurisdiction" and
substituting the following:
"maintenance order" means a provision for the
payment of maintenance in an order or judgment that is enforceable in British
Columbia and includes
(
a) an interim order made under
Part 8 of the Family
Relations Act ,
(
b) an order made under
section 21,
(
c) an agreement deemed to be a maintenance order under
subsection (2), and
(
d) an order that is a support order under the
Interjurisdictional Support Orders Act ,
but does not include a provisional order or a provisional
variation order, as defined in
section 1 (1) of the Interjurisdictional
Support Orders Act ;
"reciprocating jurisdiction" means a reciprocating
jurisdiction as defined in
section 1 (1) of the Interjurisdictional Support
Orders Act ; .
Section 3 (2) is repealed and the following substituted:
(2) Subject to the regulations, a court designated under
section 2 of the Interjurisdictional Support Orders Act may file with the
director all orders requiring payment of maintenance that are made or registered
by that court.
49 Sections 8 (4), 10 (1) (a) (ii) and 11 (3) are amended by striking
out "reciprocating state" and substituting "reciprocating
jurisdiction" .
50 The following sections are added:
Documents from reciprocating jurisdictions
41.1
(1) If, in a proceeding under this Act, a
document from a court in a reciprocating jurisdiction contains terminology
different from the terminology of this Act or customarily in use in the court in
British Columbia, the court in British Columbia must give a broad and liberal
interpretation to the terminology so as to give effect to the document.
(2) For the purposes of this Act, it is presumed, unless
the contrary is established, that procedures taken in a reciprocating
jurisdiction have been regular and complete, that the court making an order in a
reciprocating jurisdiction had jurisdiction to do so and that the jurisdiction
is recognized under the conflict of laws rules of British Columbia.
Evidentiary matters
41.2
(1) In a proceeding under this Act, a document
purporting to be signed by a judge, officer of a court or public officer in a
reciprocating jurisdiction is, unless the contrary is proved, proof of the
appointment, signature and authority of the person who signed the document.
(2) Statements in writing sworn by the maker, depositions
or transcripts of evidence taken in a reciprocating jurisdiction may be received
in evidence by a court in British Columbia under this Act.
Family Relations Act
Section 93 (5) (
d) of the Family Relations Act, R.S.B.C. 1996, c.
128, is repealed and the following substituted:
(
d) payment of support in respect of any period before the
order is made; .
Section 97 is repealed.
53 The following
section is added:
Maintenance orders in sections 99 and 100
98.1 In sections 99 and 100, "maintenance
order" includes a support order made under the Interjurisdictional
Support Orders Act .
Section 99 is amended by adding the following
subsection:
(1.1) An order, application or other document received by
a designated authority under the Interjurisdictional Support Orders Act
is deemed to be a written request under this section.
Part 8 of the Family Relations Act is repealed.
Commencement
56 This Act comes into force by regulation of the
Lieutenant Governor in Council.
Copyright (c) 2002:
Queen's Printer, Victoria, British Columbia, Canada