Copyright (

c) Queen's Printer,

Victoria, British Columbia, Canada

License

Disclaimer

1997 Legislative Session: 2nd Session, 36th 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 21st day of July, 1997

Ian D. Izard, Law Clerk

HONOURABLE UJJAL DOSANJH

ATTORNEY GENERAL AND

MINISTER RESPONSIBLE

FOR MULTICULTURALISM,

HUMAN RIGHTS AND

IMMIGRATION

BILL 32 – 1997

FAMILY MAINTENANCE ENFORCEMENT

AMENDMENT ACT, 1997

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the

Province of British Columbia, enacts as follows:

Section 1 (1) of the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127, is

amended

(

a) by adding the following definition:

"annual default fee" means the fee prescribed under

section 51 for purposes

section 14.4; ,

(

b) by repealing paragraph (

a) of the definition of "court" and substituting the

following:

(

a) in sections 3 (1) and (2), 9, 10, 12.1 (4), 13 to 24, 26 (1), (10),

(12) and (13), 29.2 (2), 31, 32, 36 (2), 39, 40, 45 (c), 46, 47 (2) and (3), 49

(1) (

b) and 51 (2) (c), the Supreme Court or the Provincial Court, ,

(

c) in the definition of "maintenance" by adding the following paragraph:

(d.1) the cost of tests for paternity, , and

(

d) by repealing the definition of "spouse" and substituting the following:

"spouse" means an individual who is married to or living in a marriage-like

relationship with a debtor and this marriage or marriage-like relationship

may be between persons of the same gender; .

Section 6 is amended

(

a) in subsections (1) and (2) by striking out "at any time" , and

(

b) by adding the following subsection:

(2.1) A withdrawal under subsection (1) or (2) may be made if

(

a) the director has recovered all amounts to which

section 10 (5) refers

respecting the creditor, or

(b)

section 10 (5) does not apply respecting the creditor.

Section 10 is amended

(

a) by repealing subsection (1) (

a) and substituting the following:

(

a) be sent to the director and be payable

(

i) to the director, or

(ii) if specified by the director, to a creditor, or to a reciprocating state,

or ,

(

b) in subsection (4) by striking out "subsections (5) and (6)" and substituting "subsections (4.1), (5) and (6)" , and

(

c) by adding the following subsection:

(4.1) The director may reallocate the amount of payments received from a debtor

amongst the creditors of the debtor if the director considers that it is reasonable

and just to do so.

4 The following sections are added:

Payment conference

12.1

(1) On or after acting under

section 12 (1), the director by service of notice in the

prescribed form on the debtor may request that the debtor attend at the time and

place specified in the notice to review the statement of arrears, the statement of

finances and the prescribed documents referred to in

section 12 and to arrange for

payment of the arrears.

(2) With the consent of the director and the debtor, the time or place for the review

under subsection (1) may be changed.

(3) With the consent of the director and the debtor, the review under subsection

(1) may be conducted by telephone or other means of telecommunication.

(4) If the debtor refuses to participate in a review under this

section or declines to

discuss all or part of the information that is or should be set out in the statement

of arrears, the statement of finances or the prescribed documents referred to in

section 12, the director in any proceedings under this Part may report this lack of

cooperation to the court and the court may take this lack of cooperation into

account in making its order in those proceedings.

A corporation with only the debtor as shareholder

14.1

(1) In this section, "corporation" means a corporation as defined in

section 1 of the

Company Act for which the debtor

(

a) is the sole shareholder, and

(

b) has the sole beneficial interest in the shares of the corporation.

(2) A corporation becomes jointly and separately liable with the debtor for payments

required under a maintenance order if

(

a) the debtor defaults in a payment required under the maintenance order,

(

b) the corporation has been served with a notice of attachment under this Part,

or is a garnishee under

section 18, respecting the amount owing by the

debtor under the maintenance order, and

(

c) the amount owing by the debtor under the maintenance order exceeds

$3 000 after paragraph (

b) applies.

(3) On becoming jointly and separately liable under subsection (2),

(

a) a corporation continues to be liable as long as the debtor continues to be

liable for payments required under the maintenance order,

(

b) an enforcement proceeding that may be taken under this Part against the

debtor may be taken against the corporation, and

(

c) the amount of a payment required under a maintenance order that is paid by

the corporation is a debt owed by the debtor to the corporation.

(4) Despite subsection (3), a corporation is not liable for payments under a

maintenance order that come due on or after the director receives written notification from the corporation

(

a) stating that the debtor has ceased to have a beneficial interest in any shares

of the corporation and the date this took effect,

(

b) giving the name and address of the person who acquired the beneficial

interest in those shares, and

(

c) specifying the nature and amount of the consideration, if known to the

corporation, the debtor received or will receive for the transfer of the

beneficial interest in the shares.

A corporation controlled by the debtor or by

the debtor and immediate family members

14.2

(1) In this section:

"control of the corporation" means the holding, other than by way of security only,

by or for the benefit of a person or a group of persons not dealing with each other

at arm's length, of shares in the corporation that, in an election of the directors

of the corporation, carry, in total, sufficient voting rights, if those rights are

exercised, to elect 50% or more of the directors or to otherwise effectively

control the operations and direction of the corporation;

"corporation" means a corporation as defined in

section 1 of the Company Act if the

control of the corporation is by

(

a) the debtor, or

(

b) the debtor and the immediate family members of the debtor together;

"immediate family member" means a spouse, former spouse, child, sibling, step-

sibling, half-sibling or parent of the debtor;

"parent" means a parent as defined in

section 1

of the Family Relations Act .

(2) The director, if the maintenance order is filed with the director, or the creditor, if

the maintenance order is not filed with the director, may apply to the court for an

order that a corporation is jointly and separately liable with the debtor for

payments required under the maintenance order if

(

a) the debtor defaults in a payment required under the maintenance order,

(

b) the corporation has been served with a notice of attachment under this Part,

or is a garnishee under

section 18, respecting the amount owing by the

debtor under the maintenance order, and

(

c) the amount owing by the debtor under the maintenance order exceeds

$3 000 after paragraph (

b) applies.

(3) On becoming jointly and separately liable under an order made under

subsection (2),

(

a) a corporation continues to be liable as long as the debtor continues to be

liable for payments required under the maintenance order,

(

b) an enforcement proceeding that may be taken under this Part against the

debtor may be taken against the corporation, and

(

c) the amount of a payment required under a maintenance order that is paid by

the corporation is a debt owed by the debtor to the corporation.

(4) Despite subsection (3), a corporation is not liable for payments under a

maintenance order that come due on or after the director receives written notification from the corporation

(

a) stating that the debtor has ceased to have a beneficial interest in any shares

of the corporation and the date this took effect,

(

b) giving the name and address of the person who acquired the beneficial

interest in those shares, and

(

c) specifying the nature and amount of the consideration, if known to the

corporation, the debtor received or will receive for the transfer of the

beneficial interest in the shares.

Balanced approach to enforcement against a corporation

14.3 For the purposes of an enforcement proceeding referred to in

section 14.1 or 14.2

against the corporation, the director and the court, as the case may be, must

(

a) consider whether a significant risk to the continued solvency of the

corporation arises or will arise from the enforcement proceedings, and

(

b) if the conclusion under paragraph (

a) is that a significant risk has arisen or

will arise, proceed in a manner that will, in the opinion of the director or

court, as the case may be, reduce the risk and allow enforcement under this

Part to be effective.

Annual default fee

14.4

(1) A notice of the intention to impose an annual default fee may be given by the

director to a debtor who is in default on a payment of maintenance under a

maintenance order filed with the director.

(2) A notice is conclusively deemed to be given under subsection (1) to the debtor on

the 14th day after the notice is deposited with Canada Post to be mailed to the

debtor's last known address.

(3) A notice under subsection (1) must state that the annual default fee is imposed on

the debtor for the calendar year if the debtor further defaults in the calendar year

in payment on the dates and in the amounts specified under the maintenance

order.

(4) If a further default as described in subsection (3) occurs after a notice is given

under subsection (1), the debtor is liable to pay the government the annual default

fee for the calendar year unless the director is satisfied that

(

a) the notice under subsection (1) was issued in error, or

(

b) the debtor was receiving income assistance under the

BC Benefits (Income Assistance) Act , a youth allowance under the

BC Benefits (Youth Works) Act or a disability allowance under the Disability

Benefits Program Act at the time the further default occurred.

(5) If the director determines that a debtor is not liable to pay the annual default fee,

any payment made by the debtor of all or part of the annual default fee must be

remitted to the debtor.

(6) In a proceeding in which a court reduces or cancels the arrears under a

maintenance order that is filed with the director, the court may order that

(

a) if the arrears under the maintenance order are cancelled, the amount owing

by the debtor at that time as annual default fees is cancelled,

(

b) if the arrears under the maintenance order are reduced but not cancelled, the

amount owing by the debtor at that time as annual default fees is reduced by

the amount that is proportionate to the reduction in the arrears under the

maintenance order, or

(

c) if the court is satisfied that special circumstances warrant, the amount owing

by the debtor at that time as annual default fees

(

i) is not reduced or cancelled, or

(ii) is reduced or cancelled as the court considers appropriate.

(7) Subsections (5) and (6) apply despite the Financial

Administration Act .

(8) If subsection (4) applies to a debtor and the relevant maintenance order is

withdrawn from filing under

section 6, the liability of the debtor to pay the annual

default fee for the calendar year continues to apply.

(9) A certificate signed by the director stating the amount of a debtor's liability under

subsection (4) on the date the certificate is signed may be filed with the court and,

on the certificate being filed, payment of this amount may be enforced under this

Part as if it were an order of the court.

Section 15 is amended

(

a) in subsection (3) (

a) and (

b) by adding "or benefit" after "any money" ,

(

b) in subsection (6) (

a) by adding "or benefit" after "the money" , and

(

c) by adding the following subsection:

(9) In this section, "benefit" means a benefit

as defined in the Pension Benefits Standards Act .

Section 16 is amended

(

a) in subsection (1) (a) (

i) by adding "or benefit" after "no money" , and

(

b) by adding the following subsection:

(10) In this section, "benefit" means a benefit

as defined in the Pension Benefits Standards Act .

Section 21 (10) is amended by repealing paragraph (

d) and substituting the following:

(

d) next, to any interest under

section 11.1;

(

e) last, to any annual default fees.

Section 24 is amended

(

a) in subsection (1) by adding "or is receiving or entitled to receive a benefit," after "from

a person employing or engaging the services of the debtor," ,

(

b) in subsection (3) by adding "or pays a benefit," after "employees or engages the

services of the debtor" ,

(

c) in subsection (3) (

a) by adding "or benefit" after "deduct from the money" ,

(

d) in subsection (4) by adding "or pays a benefit" after "the services of the debtor" and

by adding ", or to receive a benefit" after "salary or other remuneration" , and

(

e) by adding the following subsection:

(10) In this section, "benefit" means a benefit as defined in the Pension Benefits

Standards Act.

Section 25 is amended

(

a) in subsection (1) in the definition of "money" by striking out "or" at the end of

paragraph (

a) and by adding the following paragraph:

(a.1) a benefit as defined in the Pension Benefits Standards Act, or , and

(

b) in subsection (2) (

b) by adding "or any benefit as defined in the Pension Benefits

Standards Act, " after "wages, salary or other remuneration," .

Section 26 (1) is repealed and the following substituted:

(1) A maintenance order may be registered in a land title office in the same manner

as a charge is registered and is deemed for the purposes of

Part 5 of the Court

Order Enforcement Act to be a judgment as defined in

section 81 of that Act if an

application is made under this

section for the registration and the application is

accompanied by

(

a) a copy of the maintenance order certified by a proper officer of the court, or

(

b) a copy of a copy described by paragraph (

a) certified by the director to be a

true copy, as described by paragraph (a), filed with the director.

11 The following

section is added:

Registration in personal property security registry

26.1

(1) The Lieutenant Governor in Council may

prescribe the circumstances in which, for the purpose of enforcing a maintenance

order, a claim may be registered by the director under the Miscellaneous

Registrations Act, 1992 , against the personal property of a debtor.

(2) Registration of a claim under the Miscellaneous

Registrations Act, 1992 , in respect of a maintenance order in circumstances

prescribed under subsection (1) creates, in favour of the director for payment

as provided for under

section 10, a lien on the personal property against which

the claim is registered.

(3) The lien created under subsection (2) is for the total of

(

a) the amount of any arrears of maintenance accrued before the claim is

registered, and

(

b) the amount of any arrears of maintenance that accrues while the claim is

registered.

(4) The lien created under subsection (2) has priority, for the total amount determined

under subsection (3), over any other claim that is registered and any security

interest that is perfected after the lien is created, even though part of that amount

is for arrears, interest and other sums that accrue after the other claim is registered

or after the security interest is perfected.

(5) Despite subsection (4), the lien created under subsection (2) does not have

priority over

(

a) liens for wages due to workers by their employers, and

(

b) liens under

section 52 of the Workers Compensation

Act .

(6) The lien created under subsection (2) continues

(

a) until the claim is discharged in accordance with the

Miscellaneous Registrations Act, 1992 , or a regulation made under

this Act, or

(

b) until the arrears are paid,

whichever happens first.

(7) Registration of a claim in circumstances prescribed under subsection (1) is notice

to any person of the claim and of the lien created under subsection (2).

(8) If the claim is registered against a manufactured home, the Registrar of Manufactured Homes must not, except with a consent given in accordance with

subsection (9) or except in prescribed circumstances,

(

a) issue a transport permit under

section 25 of the Manufactured

Home Act , or

(

b) register a transfer, or an agreement for sale, of a manufactured home.

(9) For the purposes of subsection (8), consent must be in the prescribed form and

may be given by the director.

(10) For the purposes of sections 6 and 7 of the Miscellaneous

Registrations Act, 1992 , and of any regulations made under

section

9 (2) (

c) of that Act, the director is considered to be the holder of a claim

registered under that Act in respect of a maintenance order that is filed with

the director.

12 The following sections are added:

Debtor's driver's licence

29.1

(1) If a maintenance order is filed with the director and the debtor is in default and

the arrears under the maintenance order total $3 000 or more, the director may

(

a) give the debtor 30 days' notice that action under this

section will be taken,

and

(

b) prepare and forward to the Insurance Corporation of British Columbia, after

the 30 days referred to in paragraph (a), a notice stating that the debtor is in

default.

(2) The director may act under subsection (1) (

b) without complying with

subsection (1) (

a) if

(a) subsection (6) applies, or

(

b) the director considers that it is impractical to contact the debtor.

(3) On receipt of a notice under subsection (1), the Insurance Corporation of British

Columbia must not issue or renew a driver's licence of the debtor until the

Insurance Corporation of British Columbia is advised by the director that

(

a) the maintenance order has been withdrawn under

section 6,

(

b) the maintenance order is no longer in arrears, or

(

c) direction is given under

section 29.2 to disregard the notice under

subsection (1).

(4) The director may, as a condition for acting under subsection (3) (b), require the

debtor to give the director a deposit in a prescribed amount as security for future

payments under the maintenance order in addition to paying the arrears.

(5) The director may hold a deposit received under subsection (4) until the debtor has

not been in arrears under the maintenance order for at least 9 consecutive months

since the deposit was given, in which case the deposit may be applied to future

maintenance payments, or returned to the debtor, as the director considers appropriate.

(6) If the debtor gives a deposit under subsection (4) and subsequently falls into

arrears for more than 10 consecutive days under the maintenance order filed with

the director, the director may

(

a) prepare and forward to the Insurance Corporation of British Columbia a

further notice under subsection (1) without further notice to the debtor, and

(

b) apply the deposit to the payment of arrears under the maintenance order.

(7) Action by the Insurance Corporation of British Columbia under subsection (3) or

the giving of a deposit under subsection (4) is not a bar to the bringing of other

proceedings under this Part to enforce payment under the maintenance order.

Withdrawing the director's notice

29.2

(1) The director must direct the Insurance Corporation of British Columbia to

disregard a notice given under

section 29.1 if the debtor satisfies the director that

(

a) the notice is based on a material error,

(

b) the lack of a driver's licence will significantly reduce the debtor's ability to

pay under the maintenance order and the debtor has entered into an

arrangement that is satisfactory to the director to report the debtor's

financial circumstances from time to time, or

(

c) the debtor has entered into a payment arrangement that is satisfactory to the

director.

(2) If the director refuses to act under subsection (1) (a), the court, on application by

the debtor, may summarily determine whether the refusal was unreasonable and,

if the refusal is found to be unreasonable, may order the director to act under

subsection (1).

Section 32 is amended by repealing paragraph (

d) and substituting the following:

(

d) next, to any interest under

section 11.1;

(

e) last, to any annual default fees.

Section 33 (2) is amended

(

a) by striking out "13 (4)" and substituting "12.1 (4), 13 (4)" , and

(

b) by striking out "31," and substituting "29.2 (2), 31," .

Section 43 is repealed and the following substituted:

Information confidential

(1) Despite the Freedom of Information and Protection of Privacy Act , a person must

not disclose information obtained under this Act except

(

a) to the extent necessary for purposes relating to the enforcement of a

maintenance order,

(

b) as provided in

section 8 (4), or

(

c) in accordance with an information-sharing agreement that is entered into

(

i) under and for the purposes of the administration of

the BC Benefits (Income Assistance) Act , the BC Benefits (Youth Works)

Act or the Disability Benefits Program Act , and

(ii) with the minister responsible for the administration of this Act.

(2) Subsection (1) does not apply to information for research

purposes disclosed in accordance with

section 35 of the Freedom of Information

and Protection of Privacy Act .

(3) Despite subsection (1), the director in prescribed circumstances may disclose to

a reporting agency, as defined in

section 1 of the Credit Reporting Act, the fact

that a debtor is in arrears under a maintenance order filed with the director.

(4) Section 11 (3) (

k) of the Credit Reporting Act does not apply to a disclosure under

subsection (3).

Section 51 (2) is amended by adding the following paragraphs:

(i.1) prescribing the form of a

section 12.1 notice;

(i.2) prescribing the amount of the annual default fee for the purposes of

section 14.4;

(i.3) prescribing circumstances for the purposes of

section 26.1 (8);

(i.4) prescribing a form for the purposes of

section 26.1 (9);

(i.5) prescribing the amount under

section 29.1;

(i.6) prescribing circumstances for the purposes of

section 43 (3); .

Section 5 of the Supplement to the Family Maintenance Enforcement Act is repealed.

Consequential Amendments

Pension Benefits Standards Act

Section 63 of the Pension Benefits Standards Act, R.S.B.C. 1996, c. 352, is amended

(

a) in subsection (1) by striking out "subsection (3)," and substituting "subsections

(3) and (3.1)," , and

(

b) by adding the following subsection:

(3.1) Subsection (1) (a), and that portion of subsection (1) (

b) that refers to a transfer

of money under

section 32 (2), but only in respect of excess contributions

returned to a member under

section 32 (3) (a), does not apply to

(

a) a notice of attachment under

section 15 of the Family

Maintenance Enforcement Act ,

(

b) an order of garnishment under

section 18 (2) of that Act, or

(

c) an attachment order under

section 24 of that Act.

Commencement

19 This Act comes into force by regulation of the Lieutenant Governor in Council.

Copyright © 1997: Queen's Printer, Victoria, British Columbia, Canada