First Session, 47th

General Assembly

61 Elizabeth II,

BILL 10

AN ACT TO AMEND THE

INTERJURISDICTIONAL

SUPPORT ORDERS ACT

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE FELIX

COLLINS

Minister of Justice

and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Interjurisdictional Support Orders Act to

replace the word

"ordinarily" with the word "habitually" to provide for

consistency with the Hague Convention on the International Recovery of Child

Support and other Forms of Family Maintenance;

clarify that support orders

recalculated by the provincial Recalculation Office, or similar services in

other Canadian and foreign jurisdictions, can be recognized and enforced in interjurisdictional

cases;

reduce the 18 month period

allowed by a court to receive additional information or documents to 12 months;

clarify the appropriate

jurisdiction's law to be applied to determine entitlement to, amount and

duration of support; and

allow a designated authority to

check, at the request of a reciprocating jurisdiction, to confirm if a

respondent can be located in the province.

A BILL

AN ACT TO AMEND THE INTERJURISDICTIONAL

SUPPORT ORDERS ACT

Analysis

S.2 Amdt.

Definitions

Division 1 heading R&S

Claimant Resident in the Province

S.6 Amdt.

Support application

S.7 Amdt.

Submitting application to designated authority

S.8 Amdt.

Provisional order

Division 2 heading R&S

Claimant Resident Outside the Province

Section 10 R&S

Notice of hearing

S.11 Amdt.

Information that court shall consider

S.13 Amdt.

Choice of law

S.14 Amdt.

Order

S.19 Amdt.

Registration

S.20 Amdt.

Foreign order

Division 1 heading R&S

Applicant Resident in the Province

S.25 Amdt.

Application to vary support order

S.26 Amdt.

Submitting application to designated authority

S.27 R&S

Application to vary support order

S.28 Amdt.

Provisional order of variation

Division 2 R&S

Applicant Resident Outside the Province

S.30 R&S

Notice of hearing

S.31 Amdt.

Information that court shall consider

S.32 R&S

Choice of law

S.35 R&S

Sending

order to reciprocating jurisdiction

S.36 Amdt.

Jurisdiction

S.38.1 Added

Request to locate

S.48 Amdt.

Transitional

SNL2006 c.31.1 Amdt.

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL2002 cI-19.2

as amended

(1) Section 2 of the Interjurisdictional Support Orders Act is amended by adding

immediately after paragraph (

i) the following:

(i.1) "request to locate" means a written

request to locate a person for the purpose of facilitating a proceeding with

respect to the establishment, variation, registration or enforcement of a

support order;

(2) Paragraph 2(

k) of the Act is repealed and the

following substituted:

(k) "support order" means

(

i) a court order or an order made by an

administrative body requiring the payment of support, or

(ii) the provisions of a written agreement

requiring the payment of support where those provisions are enforceable in the

jurisdiction in which the agreement was made as if they were contained in an

order of a court of that jurisdiction,

and includes the recalculation by an

administrative body of the payment of support for a child, where the

recalculation is enforceable in the jurisdiction in which the recalculation was

made as if it were an order of, or were contained in an order of, a court of

that jurisdiction; and

2. The heading in Division 1 of

Part I of the Act is

repealed and the following substituted:

Division 1

Claimant Resident in the Province

3. (1) Subsection 6(1) of the Act is repealed

and the following substituted:

Support

application

(1) Where

a claimant resides in the province and believes that the respondent habitually

resides in a reciprocating jurisdiction, the claimant may start a process in

the province that could result in a support order being made in the

reciprocating jurisdiction.

(2) Paragraph 6(2)(

b) of the Act is repealed and

the following substituted:

(

b) a copy of the specific statutory or other

legal authority on which the claimant's support application is based, unless

the claimant is relying on the law of the jurisdiction where the respondent

habitually resides;

4. Paragraph 7(2)(

b) of the Act is repealed and

the following substituted:

(

b) send a copy of the completed application, as

soon as practicable, to the appropriate authority in the reciprocating jurisdiction

in which the claimant believes the respondent habitually resides.

5. Subsection 8(1) of the Act is repealed and the

following substituted:

Provisional order

(1) Where

the claimant believes that the respondent habitually resides in a reciprocating

jurisdiction that requires a provisional order, the court 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 specific statutory or other

legal authority on which the claimant's support application is based.

6. The heading in Division 2 of

Part I of the Act is

repealed and the following substituted:

Division 2

Claimant Resident Outside the Province

Section 10 of the Act is repealed and the

following substituted:

Notice of hearing

(1) Where

the designated authority receives a support application from the appropriate

authority in a reciprocating jurisdiction with information that the respondent

named in the support application habitually resides in the province, the

designated authority shall serve on the respondent, in accordance with the

regulations,

(

a) a copy of the support application; and

(

b) a notice requiring the respondent to appear at

the place and time set out in the notice and to provide the information or

documents required by the regulations.

(2) Where the designated authority has not served

the respondent in accordance with subsection (1) and knows or believes that the

respondent is habitually resident in another reciprocating jurisdiction in Canada ,

the designated authority shall

(

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) Where the designated authority

(

a) is unable to determine where the respondent

resides; or

(

b) has not served the respondent in accordance

with subsection (1) and knows or believes that the respondent is habitually

resident in a jurisdiction outside Canada ,

the designated authority shall return the

support application to the appropriate authority in the originating reciprocating

jurisdiction with available information respecting the location and

circumstances of the respondent.

8. (1) Subsection 11(3) of the Act is

repealed and the following substituted:

(3) Where the information or documents requested

under subsection (2) are not received by the court within 12 months from the

date of the request, the court may dismiss the support application and terminate

an interim support order made under paragraph (2)(b).

(2) Section 11 of the Act is amended by adding

immediately after subsection (3) the following:

(3.1) Notwithstanding subsection (3), where, before the

coming into force of that subsection an order for additional information or

documents was made, the additional information or documents shall be received

by the court within 18 months of the date of the request.

9. Subsection 13(1) of the Act is repealed and the

following substituted:

Choice of law

(1) In

determining the entitlement to support for a child, the court shall first apply

the law of the province, but where the child is not entitled to support under

that law, the court shall apply the law of the jurisdiction in which the child

habitually resides.

Section 14 of the Act is amended by adding

immediately after subsection (4) the following:

(5) A support order shall specify the law applied under

section 13, and where the order does not specify the law applied, the order is

considered to have been made under the law of the province.

Section 19 of the Act is amended by adding

immediately after subsection (3) the following:

(4) The duration of the support obligation in an

extra-provincial order or foreign order registered under subsection (1) is

governed by the law of the jurisdiction under which the order was made.

(5) The onus is on the appropriate authority of

the reciprocating jurisdiction to provide proof of the law governing duration

of the support obligation to the satisfaction of the designated authority.

(6) Notwithstanding subsection (3), where the designated

authority is unable to determine the duration of the support obligation under

the law of the reciprocating jurisdiction, the designated authority may enforce

the support order for the duration determined by the law of the province.

12. (1) Subsection 20(1) of the Act is

repealed and the following substituted:

Foreign order

(1) After

the registration of a foreign order under

section 19, the designated authority

shall, in accordance with the regulations, notify the party to the order

believed to habitually reside in the province of the registration of the order.

(2) Subsection 20(5) of the Act is repealed and

the following substituted:

(5) For the purpose of subparagraph (3)(b)(iii), a

court has jurisdiction where

(

a) both parties to the foreign order habitually

reside in the reciprocating jurisdiction outside Canada ; or

(

b) a party does not habitually reside in the

reciprocating jurisdiction outside Canada but is subject to the

jurisdiction of the court that made the foreign order.

13. The heading in Division 1 of

Part III of the

Act is repealed and the following substituted:

Division 1

Applicant Resident in the Province

14. (1) Subsection 25(1) of the Act is

repealed and the following substituted:

Application to

vary support order

(1) Where

an applicant resides in the province and believes that the respondent

habitually resides in a reciprocating jurisdiction, the applicant may start a

process in the province that could result in a support variation order being

made in the reciprocating jurisdiction.

(2) Paragraph 25(2)(

c) of the Act is repealed and

the following substituted:

(

c) a copy of the specific statutory or other

legal authority on which the applicant's support variation is based, unless the

applicant is relying on the law of the jurisdiction where the respondent

habitually resides;

15. Paragraph 26(2)(

b) of the Act is repealed and

the following substituted:

(

b) send a copy of the completed support variation

application, as soon as practicable, to the appropriate authority in the reciprocating

jurisdiction in which the applicant believes the respondent habitually resides.

Section 27 of the Act is repealed and the

following substituted:

Application to

vary support order

27. Where

the applicant habitually resides in the province and the respondent no longer

habitually resides in a reciprocating jurisdiction, the applicant may apply

directly to the court to vary the support order, and the court may make a

support variation order where the respondent has been given notice of the

proceeding.

17. Subsection 28(1) of the Act is repealed and the

following substituted:

Provisional order

of variation

(1) Where

the applicant believes that the respondent habitually resides in a

reciprocating jurisdiction that requires a provisional order of variation, the

court may, on application by the applicant and without notice to and in the

absence of the respondent, make a provisional order of variation taking into

account the specific statutory or other legal authority on which the

applicant's support variation application is based.

18. The heading in Division 2 of

Part III of the

Act is repealed and the following substituted:

Division 2

Applicant Resident Outside the Province

Section 30 of the Act is repealed and the

following substituted:

Notice of hearing

(1) Where

the designated authority receives a support variation application from the

appropriate authority in a reciprocating jurisdiction with information that the

respondent named in the support variation application habitually resides in the

province, the designated authority shall serve on the respondent, in accordance

with the regulations,

(

a) a copy of the support variation application;

and

(

b) a notice requiring the respondent to appear at

the place and time set out in the notice and to provide the information or

documents required by the regulations.

(2) Where the designated authority has not served

the respondent in accordance with subsection (1) and knows or believes that the

respondent is habitually resident in another reciprocating jurisdiction in Canada ,

the designated authority shall

(

a) forward 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) Where the designated authority

(

a) is unable to determine where the respondent

resides; or

(

b) has not served the respondent in accordance

with subsection (1) and knows or believes that the respondent is habitually

resident in a jurisdiction outside Canada ,

the designated authority shall return the

support variation application to the appropriate authority in the originating reciprocating

jurisdiction with available information respecting the location and

circumstances of the respondent.

20. (1) Subsection 31(3) of the Act is

repealed and the following substituted:

(3) Where the information or documents requested

under subsection (2) are not received by the court within 12 months from the

date of the request, the court may dismiss the support variation application

and terminate an interim support variation order made under paragraph (2)(b).

(2) Section 31 of the Act is amended by adding

immediately after subsection (3) the following:

(3.1) Notwithstanding subsection (3), where, before

the coming into force of that subsection, an order for additional information or

documents was made, the additional information or documents shall be received

by the court within 18 months of the date of the request.

Section 32 of the Act is repealed and the

following substituted:

Choice of law

(1) In

determining the entitlement to receive or to continue to receive support for a

child, the court shall first apply the law of the province but where the child

is not entitled to support under that law, the court shall apply the law of the

jurisdiction in which the child habitually resides.

(2) In determining the amount of support for a

child, the court shall apply the law of the province.

(3) For greater certainty, the law of the province

referred to in subsection (2) includes the applicable table under the Child Support Guidelines Regulations.

(4) In determining the entitlement of a party

other than a child to receive or to continue to receive support and the amount

of that support, the court shall apply the law of the province.

(5) Where under the law of the province a party

other than a child is not entitled to receive or to continue to receive support,

the court shall apply the law of the jurisdiction in which that party habitually

resides.

(6) Where a party other than a child is neither

entitled to receive or to continue to receive support under the law of the

province nor under the law of the jurisdiction in which that party habitually

resides, the court shall apply the law of the jurisdiction in which the parties

last maintained a common habitual

residence.

Section 35 of the Act is repealed and the

following substituted:

Sending order to

reciprocating jurisdiction

35. The

designated authority shall, as soon as practicable, send a certified copy of a

support variation order made under this Division and reasons, if any, to the

appropriate authority in the reciprocating jurisdiction in which the applicant

resides and, where the support order was originally made in another

reciprocating jurisdiction, to the appropriate authority in that jurisdiction.

23. Subsection 36(1) of the Act is repealed and the

following substituted:

Jurisdiction

(1) The

court may, on a party's motion and after taking into account any right of a

government or agency of a government under

section 43, vary a support order

registered in the province under

Part II of this Act or under the former Act

where

(

a) both the applicant and respondent accept the

court's jurisdiction;

(

b) both the applicant and respondent habitually reside

in the province; or

(

c) the respondent habitually resides in the

province and the support order is registered by the applicant under

Part II of

this Act or under the former Act.

24. The Act is amended by adding immediately after

section 38 the following:

Request to locate

38.1

(1) Where

the designated authority receives a request to locate from an appropriate

authority in a reciprocating jurisdiction, the designated authority may take the

steps it considers appropriate for the purpose of obtaining information with

respect to the whereabouts of the person named in the request.

(2) The designated authority may respond to a

request to locate by advising the appropriate authority in the reciprocating

jurisdiction whether the person has been located in the province, but shall not

disclose specific information respecting the location of the person.

(3) Information received by the designated

authority from an appropriate authority in a reciprocating jurisdiction or

through inquiries made under subsection (1) is confidential, except that the

designated authority may use and disclose the information for the purpose of

carrying out its duties and powers under this Act and the regulations.

25. Subsection 48(3) of the Act is repealed.

SNL2006 cS-31.1

Amdt.

26. Subsection 11(1) of the Support Orders Enforcement Act, 2006 is repealed and the following

substituted:

Access by

director to information

(1) The

director may, for the purpose of enforcing a support order that is registered

with the director, demand and receive from a person, corporation or public

body, including the Crown, information within the knowledge of or shown on a

record in the possession or control of the person, corporation or public body

relating to the debtor or a person referenced in

section 38.1 of the Interjurisdictional Support Orders Act with

respect to whom a request to locate has been made, including

(

a) wages, salary or other income;

(

b) income sources;

(

c) location of income sources;

(

d) assets and liabilities;

(

e) location of assets, including account numbers

with financial institutions;

(

f) financial status;

(

g) copies of income tax returns;

(

h) social insurance number;

(

i) location, address and place of employment;

(

j) location, address and place of residence;

(

k) telephone and facsimile number; and

(

l) any other information that the director

considers necessary for the enforcement of the support order.

William E. Parsons, Queen's Printer