Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Support Orders
Enforcement Act, 2006.
PART I
INTERPRETATION
Interpretation
2. (1) In
this Act
(a) "court" means the Trial Division,
the Unified Family Court or the Provincial Court;
(b) "creditor" means
(i) a person entitled under a support order to
receive money for support on his or her own behalf or on behalf of another
person, or
(ii) the minister responsible for the Income and Employment Support Act where
a subrogation exists under section 10 to the extent of the subrogation;
(c) "Crown" includes a Crown corporation
and a department, agency, board or other body of the government of the province;
(d) "debtor" means a person required under
a support order to pay money for support;
(e) "director" means the Director of
Support Enforcement appointed under section 4;
(f) "garnishee" means a person who is alleged
to be indebted to the debtor and to whom the director issues a notice of garnishment;
(g) "minister", unless the context
indicates otherwise, means the minister appointed under the Executive Council Act to administer this
Act;
(h) "notice of garnishment" means a notice
of garnishment as described in section 15;
(i) "notify" means to provide by ordinary
mail or facsimile transmission;
(j) "persistent arrears" means arrears
in any amount where the arrears are due to the failure to make, in full, the
number of payments under a support order prescribed by the regulations or
accumulated arrears in an amount prescribed by the regulations;
(k) "support" means support, maintenance
or alimony and includes
(i) an amount payable periodically, whether yearly
or otherwise and whether for an indefinite or limited period or until the
happening of a specified event,
(ii) a lump sum, including instalment payments of a
lump sum,
(iii) expenses in respect of prenatal care and the
birth of a child,
(iv) a charge on property or otherwise as security
for the payment of support, or
(v) interest or the payment of legal fees, costs
or other expenses arising in relation to support; and
(l) "support order" means a provision in
an order of a court in or outside the province enforceable in the province for
the payment of money as support, and includes a provision for
(i) a specified property to be transferred to or
in trust for or vested in a party, whether absolutely, for life or for a term
of years,
(ii) all or some of the money payable under the
order to be paid into court or to another appropriate person or agency for the
benefit of a party,
(iii) payment of support or support in respect of a
period before the date of the order,
(iv) payment to the minister responsible for the Income and Employment Support Act of an
amount in reimbursement for a benefit or assistance provided to a party, including
an amount in reimbursement for a benefit or assistance provided before the date
of the order,
(v) the irrevocable designation by a spouse who
has a policy of life insurance or an interest in a benefit plan of the other
spouse or a child as the beneficiary,
(vi) an order confirming the payment of support,
(vii) payment of expenses in respect of the prenatal
care and birth of a child,
(viii) the securing of payment under the order, by a
charge on property or otherwise, or
(ix) the payment of legal fees or costs or other
expenses arising in relation to support,
and also includes a provision in a domestic
contract that is enforceable under the law of the province and an order for
support under provincial law and the Divorce
Act (Canada).
(2) Notwithstanding the definition of court in
subsection (1), in the judicial area set out in the Schedule to the Unified Family Court Act,
"court" means the Unified Family Court.
(3) Anything required by this Act to be signed or
done by a person, or referred to in this Act as signed or done by a person, may
be signed or done by a lawyer acting on the person's behalf.
(4) This Act binds the Crown.
Labrador Inuit
rights
3. This
Act and regulations made under this Act shall be read and applied in
conjunction with the Labrador Inuit Land
Claims Agreement Act and, where a provision of this Act or regulations made
under this Act is inconsistent or conflicts with a provision, term or condition
of the Labrador Inuit Land Claims
Agreement Act, the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over
the provision of this Act or a regulation made under this Act.
PART II
DIRECTOR TO ENFORCE SUPPORT ORDERS
Director of
Support Enforcement
4. (1) There
shall be employed in the manner provided by law a Director of Support
Enforcement who shall administer and enforce this Act under the control and
direction of the minister.
(2) It is the duty of the director to enforce
support orders that are registered with the director in the manner that appears
practicable and the director may, for that purpose, begin, continue and conduct
a proceeding and take steps for the enforcement of an order in the name of the
director for the benefit of a creditor, or of a creditor's child.
(3) An employee of the Department of Justice who
has been designated for the purpose may act for and in the name of the director
and may, on behalf of the director, appear in the Provincial Court.
(4) The director may refuse to enforce more than 3
years of the arrears of support payable under a support order.
(5) The period of 3 years referred to in
subsection (4) begins 3 years before the date on which the order was registered
with the director.
(6) Money paid to the director in respect of a
support order is not attachable under another Act.
(7) The director appointed under this section may
(a) for the purpose of determining initial or
ongoing ability to comply with a support order, conduct interviews with a
debtor; or
(b) initiate enforcement activities based upon the
poor payment history of the debtor.
Order registered
5. (1) A
support order may be registered with the director by a creditor or debtor in
the manner prescribed by the regulations.
(2) A support order may be registered with the
director by the minister responsible for the Income and Employment Support Act.
(3) A person other than the director shall not
take proceedings to enforce a support order during the time it is registered
with the director.
(4) Nothing in this Act prohibits the director or
a creditor from taking proceedings under another Act to enforce a support
order.
(5) A support order made by a court in the
province other than a provisional order shall
(a) state in the operative part of the order that
it shall be enforced by the director and amounts owing under the order shall be
paid to the person to whom they are owed through the director unless the order
is withdrawn from the director;
(b) be registered with the director by the clerk
or registrar of the court that made it, immediately after it is made or issued;
and
(c) shall be accompanied by an application for
registration as prescribed by the minister.
(6) A creditor may file with the court and the
director a notice that he or she does not wish to have a support order enforced
by the director, and where a creditor files that notice, the creditor may, without
the benefit of the director, pursue enforcement of the support order under the Judgment Enforcement Act or other
applicable statute.
(7)
Where a support order is made by the
Provincial Court, the director may file the support order with the Trial
Division, and on being filed, the parts of the support order that relate to
support are considered to be a judgment of the Trial Division.
(8) A support order made by a court outside the
province that is received by the Attorney General or a court for enforcement in
the province shall be registered with the director immediately after it is
received unless the order is accompanied by a written notice signed by the
person seeking to enforce the order stating that he or she does not wish to
have the order enforced by the director.
(9) Where a support order is indexed to the cost
of living, notwithstanding the terms of the order, the director may apply the
formula under subsections 40(8) and (9) of the Family Law Act.
Effect of registration
6. (1) Where
a support order is registered with the director under this Act
(a) the director shall take steps that he or she
considers necessary to enforce the support order;
(b) only the director may, on behalf of a
creditor, begin, continue or discontinue proceedings to enforce a support
order;
(c) the director may sign all documents with
respect to the enforcement of a support order;
(d) subject to subsections 4(4) and (5), the
director may enforce arrears under a support order notwithstanding that the
arrears accrued before the date that the order was registered with the
director; and
(e) for the purpose of this Act, the director
stands in the place of the creditor.
(2) Only that part of a support order that relates
to the payment or security of payment of support shall be enforced under this
Act.
(3) Where the conditions set out in subsection (4)
are satisfied with respect to a support order and the parties to the support
order agree, the director may exercise discretion to enforce a lesser amount of
support in accordance with the table set out in the applicable child support
guidelines.
(4) The conditions referred to in subsection (3)
are
(a) the support order was made in accordance with
the table set out in the applicable child support guidelines;
(b) it has been agreed by the parties that the
support obligation under the order has terminated with respect to a child;
(c) the support obligation under the order still
continues with respect to another child; and
(d) the order states
(i) the number of children, and
(ii) the total amount of support determined in
accordance with the table.
Withdrawal of registration
7. (1) A support order registered with the director may be withdrawn
by a notice in the form prescribed by the minister signed by the person by or
on whose behalf it was registered.
(2) The director may permit a creditor or debtor
to re-register a support order that has been withdrawn.
(3) The director shall give notice of the
registration or withdrawal of a support order to the parties to it.
(4) Where a person who is entitled to support
under a support order has applied and is eligible for, or has received, a
benefit under the Income and Employment
Support Act, the minister responsible for that Act may register the order
with the director whether or not a notice referred to in subsection 5(6) or (8)
has been given, and the order shall not be withdrawn except by, or with the
written consent of, that minister.
(5) Notice under this section may be effected by
ordinary mail or by facsimile transmission.
(6) The validity of proceedings under this Act is
not affected by the inability of the director, after reasonable effort, to give
notice to a party under subsection (3).
Withdrawal of
support order
8. The
director may withdraw a support order registered with the director
(a) where it appears to the director that the
creditor is taking steps to enforce the support order, 14 days after the
director mails to the creditor a written notice sent by ordinary mail that he
or she will withdraw the support order;
(b) on the application of the creditor, except
where the support order was registered by the debtor or the minister responsible
for the Income and Employment Support Act
where subrogation exists under section 10;
(c) on the application of
the debtor, except where the support order was registered by the creditor;
(d) where, in the opinion of the director, the
amount of support is a nominal amount as prescribed by the regulations;
(e) where the creditor wilfully fails to or
refuses to provide information about the debtor that the director requires to enforce
the support order;
(f) where the amount of support cannot be
determined;
(g) where the creditor cannot be located after
reasonable efforts to do so have been made;
(h) where the debtor is in prison;
(i) where the debtor is receiving income support;
(j) where, before the coming into force of this
Act, enforcement of a support order has been stayed by a court for an unspecified
time period;
(k) where there is doubt or ambiguity on the part
of the director concerning the force, effect or meaning of the support order;
or
(l) where the creditor accepts payments directly
from the debtor in relation to the support order.
Director to pay
money to creditor
9. (1) The
director shall pay to the creditor the money he or she receives in respect of a
registered support order to the extent of the entitlement of the creditor under
that support order.
(2) Notwithstanding subsection (1), where the
director receives money in excess of the amount required to be paid to the
creditor in a payment under the support order, the director may hold that money
in trust for application to the creditor's future entitlement under a support
order.
(3) The director shall keep a record using
accepted accounting and auditing standards, of money received and paid out by
him or her and the person to whom and by whom the money has been paid and any
money held in trust by the director in anticipation of a creditor's future entitlement
under a support order.
(4) Where a creditor's entitlement under a support
order has been satisfied and the director holds excess money in trust under subsection
(2), the director shall return the excess money to the debtor or where, after
reasonable attempts by the director the debtor cannot be located, into the
Consolidated Revenue Fund.
(5) The director shall report his or her activities
under this Act annually to the minister, and the report shall include
(a) a record of the number of orders registered
for enforcement; and
(b) an accounting of the receipts and disbursements
of money during the year, including any money held in trust by the director in
anticipation of payout for future support payments.
(6) The director may, on the request of the creditor
or debtor, provide an itemized statement showing the current status of the
account under a support order registered with the director.
(7) The director shall, on the request of the
proper officer of a reciprocating jurisdiction or a court of a reciprocating
jurisdiction under the Interjurisdictional
Support Orders Act, provide a sworn or affirmed itemized statement with
respect to a support order, showing
(a) the amounts that have become due by the
debtor; and
(b) the payments made by the director by or on
behalf of the debtor.
Subrogation of
rights
10. (1) Where
a person is in receipt of benefits under the Income and Employment Support Act, the following rights of that
person with respect to a support order may, with that person's consent, be subrogated
to the Crown as represented by the minister responsible for the Income and Employment Support Act:
(a) the right to apply for a support order or a
provisional order;
(b) the right to receive payments under a support
order;
(c) the right to apply for variation of a support
order; and
(d) the right to bring proceedings to enforce a
support order.
(2) An official of the Department of Human
Resources, Labour and Employment may appear in the Provincial Court on behalf of the minister responsible for the Income and Employment Support Act or as agent for a person making a
support application where that person is in receipt of benefits under the Income and Employment Support Act.
(3) Where a person is in receipt of benefits under
the Income and Employment Support Act,
that person's lawyer is authorized to provide information to the minister
responsible for that Act about the person's case to the extent only that it
proves necessary for the administration of that Act.
(4) A subrogation under subsection (1) of the
rights of a person who is in receipt of income and employment support exists
for the period of time that the person is receiving income and employment support.
(5) Where there is subrogation under subsection
(1), the minister responsible for the Income
and Employment Support Act may, notwithstanding the death of the person in
whose favour a support order is made, begin or continue a proceeding under
section 67 or 68.
Access by
director to information
11. (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 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.
(2) Information required to be disclosed under
subsection (1) shall be provided within 14 days of the demand for information
being made.
(3) Notwithstanding another Act or law restricting
the disclosure of information, a person, corporation or public body, including
the Crown, that receives a demand under subsection (1) shall provide the
demanded information that is contained in its records.
(4) Where, on application to the Trial Division or
the Unified Family Court, it appears that the director has been refused
information after making a demand under subsection (1), the Trial Division or
the Unified Family Court may order a person, corporation or public body,
including the Crown, to provide the court or the person that the court directs
with information referred to in subsection (1).
(5) This section applies despite another Act or
regulation and despite a common law rule of confidentiality or privilege.
(6) Where the director has been refused
information after making a demand under subsection (1) and obtains an order
under subsection (4), the court shall award the costs of the application to the
director.
(7) The Attorney General may, on behalf of the
province enter into an agreement with the Government of Canada concerning the
searching for and the release of information under Part I of the Family Orders and Agreements Enforcement
Assistance Act (Canada).
(8) The director or a person acting on behalf of
the director shall not disclose information obtained under the Family Orders and Agreements Enforcement
Assistance Act (Canada) for the enforcement of an order, except to the extent necessary
for the enforcement of the order.
Confidentiality
12. (1) A
person shall not disclose information received by the director except in
accordance with this Act or the regulations.
(2) Information received by the director under
this Act may be disclosed only
(a) for the purpose of enforcing a support order
registered with the director;
(b) on request, to the sheriff for the purpose of
section 18 of the Judgment Enforcement
Act;
(c) on request, to an official performing similar
functions in another jurisdiction;
(d) on the request of
(i) the minister
responsible for the Income and Employment
Support Act for the purposes of determining eligibility, including
continued eligibility for income or employment support, or
(ii) the minister or his or her designate for the
purpose of the recalculation of child support under the Family Law Act; and
(e) where a judge orders it to be disclosed on the
conditions that the court may impose.
(3) Where a judge makes an order under subsection
11(4) or under a similar provision in another Act or an Act of the Parliament
of Canada, the judge may make an order with respect to the confidentiality to
be maintained in connection with the information released that the judge
considers appropriate.
(4) Notwithstanding another provision of this
section, the director may post a debtor's name and other prescribed information
relating to the debtor on a website on the Internet if,
(a)
the support order is filed with the director;
(b) the debtor is in persistent arrears under the
support order; and
(c) the director has been unsuccessful in all
reasonable attempts to locate the debtor.
(5) The sole purpose of posting information under
subsection (4) shall be to assist the director in locating the debtor.
(6) This section applies, with the necessary
modifications, to any information obtained by the director as a result of the
posting.
Consumer
reporting agencies
13. (1) Where
a debtor is in persistent arrears under a support order registered with the
director, the director shall notify the debtor that unless the debtor makes an
arrangement satisfactory to the director within 30 days of the notification to
comply with the support order, the director shall report the debtor to a
consumer reporting agency registered under the Consumer Reporting Agencies Act.
(2) Where the conditions prescribed under
subsection (1) are satisfied, the director may disclose the following
information to a consumer reporting agency:
(a) the name of the debtor in default under a
support order;
(b) the date of the support order;
(c) the amount and frequency of the debtor's
obligations under the support order;
(d) the amount of arrears owing under the support
order at the time of the disclosure; and
(e) any other information that may be prescribed
by the regulations.
(3) The director shall require a consumer
reporting agency to include information respecting a debtor's obligations under
a support order in its credit report.
(4) Where a support order for which a debtor has
been reported to a consumer reporting agency to be in arrears
(a) is varied, and the director has had notice of
the variation, the director shall notify the consumer reporting agency of the
variation; or
(b) and the arrears are later forgiven, the
director shall notify the consumer reporting agency of that fact.
(5) Where a debtor about whom information under
this section has been disclosed to a consumer reporting agency has satisfied
all obligations under a support order, the director shall notify the consumer
reporting agency of that fact.
Stay of
enforcement
14. (1) Where a support order is registered with the director, the
debtor may apply to a court for an order suspending any proceeding taken by the
director on any condition the court considers appropriate for a period specified
in the order not to exceed the period referred to in subsection (4) or (5).
(2) An order under subsection (1) may only be made
where the court is satisfied that the debtor is unable for valid reasons to
make the payments required under the support order.
(3) An order under this section shall be
registered with the director by the clerk or registrar of the court that made
it, immediately after it is made or issued.
(4) An order under subsection (1) suspending
proceedings expires at the end of 3 months from the day it is granted or any
shorter period provided for in the order.
(5) If, within the 3 month period referred to in
subsection (4) or any shorter period specified in the order, the debtor applies
to vary a support order, the court may make an order suspending proceedings for
only one further period of not more than 6 months.
(6) Notwithstanding another provision of this
section, the director may make an application to the court to have a stay
imposed under this section lifted where the director has a reasonable belief
that the stay should be lifted.
PART III
ENFORCEMENT
Notice of garnishment
15. (1) An
obligation to pay money under a support order may be enforced by garnishment of
money payable to the debtor by another person.
(2) An obligation to pay under subsection (1) may
include payment of
(a) arrears;
(b) a lump sum; or
(c) future periodic payments.
(3) The director may issue a notice of garnishment
in the prescribed form and provide the notice of garnishment to a person
alleged to be indebted to the debtor.
(4) A notice of garnishment may be amended to
correct errors, and a copy of the amended notice shall be provided to the
person alleged to be indebted to the debtor referred to in subsection (3).
(5) A notice under this section is effective for
the purposes of the Family Orders and
Agreements Enforcement Assistance Act (Canada).
Extra-provincial
notice
16. On
the filing of a notice of garnishment or a document of similar effect that,
(a) is issued outside the province;
(b) states that it is issued in respect of
support; and
(c) is written in or accompanied by a sworn,
affirmed or certified translation into English,
the director may issue a notice of
garnishment and notify a garnishee in accordance with section 15.
Notification of
garnishee
17. (1) A notice of garnishment provided under
section 15 or 16 is considered to have been received by the garnishee within 10
days of its having been provided to the garnishee under those sections.
(2) On receipt of the notice of garnishment, the
garnishee shall immediately deliver, personally or by ordinary mail, a true
copy of the notice to the debtor.
(3) Failure of the garnishee to comply with
subsection (2) does not make the garnishment ineffective.
Effect of notice
18. (1) A
notice of garnishment, on being provided to the garnishee, binds money then due
and accruing due from the garnishee to the debtor, in the amount required under
subsection (2).
(2) On receiving a notice of garnishment, the
garnishee shall hold the money then due and accruing due to the debtor an
amount equal to
(a) the sum specified in the notice arising under
the support order in respect of which the notice was given during the 30 days
immediately preceding the date of notification;
(b) as each payment becomes due under the support
order, the amount specified in the notice or, where the amount of money due to
the debtor is less than the amount specified in the notice, the total amount
due to the debtor; and
(c) the full amount due to the debtor by the
garnishee until the lump sum amount specified in the notice is satisfied.
(3) The probable costs of a notice of garnishment
may be included in the amount set out in the notice of garnishment.
(4) The garnishee shall, within 7 days of holding
money under subsection (2), pay to the director the amount so held under the
notice of garnishment.
(5) Where the amount of money paid under
subsection (4) is insufficient to cover the amount then required to fulfil the
obligation under the support order, the amount equal to the difference between
the amount that should have been paid and the amount that was actually paid is,
for the purpose of this section, to be added to and is considered to be a part
of the next payment due under the support order.
(6) Where a support order that is the subject of a
notice of garnishment is varied after the garnishee has been provided with the notice
of garnishment, and the director has been notified of the variation order
(a) a notice of variation in the form prescribed
by the minister shall be provided to the garnishee by the director; and
(b) the garnishee shall, on receiving the notice
referred to in paragraph (a), hold money due to the debtor in accordance with
the notice of variation.
Garnishment of
money owing by Crown
19. (1) Notwithstanding
another Act, the Crown may be named as a garnishee with respect to money due to
a debtor other than payments made under the Income
and Employment Support Act.
(2) The director may notify the Crown by providing
the appropriate deputy minister or, in the case of a board, agency or
commission by serving the chairperson or secretary of the board, agency or commission
with a notification under subsection (1).
(3) Where the garnishee is the Crown, the notice
of garnishment is to indicate, where known, the department, agency or other
body of the province by which the money is payable and shall provide as many
particulars as possible with respect to the money due.
Employee protection
20. (1) An
employer shall not dismiss, suspend, lay off, penalize, discipline or
discriminate against an employee if the reason for that action is related to the
issuing of a notice of garnishment to the employer.
(2) A fee may not be charged by an employer as
against an employee who is the subject of a notice of garnishment.
(3) Upon the application of an employee who
alleges to have been the subject of a violation of subsection (1), a court may,
if it finds the allegation to be true, make any order in favor of the employee
that it considers just, including an order for reinstatement and an award of
damages.
(4) An employer who dismisses, suspends, lays off,
penalizes, disciplines or discriminates against an employee in respect of whom
a notice of garnishment has been issued while the notice of garnishment is in
effect or within 6 months after it has ceased to have effect shall, if an
application is made under subsection (2), be required to show cause for the
action, in default of which the action shall be considered to have been in violation
of subsection (1).
Dispute of garnishment
21. (1) Where
the garnishee alleges that
(a) no money is owing by him or her to the debtor;
(b) the garnishee has satisfied his or her
obligation to make payments to the debtor and no further payments from the
garnishee to the debtor are accruing due; or
(c) the garnishee has not received sufficient
information with respect to the debtor to enable the garnishee to make deductions,
he or she shall file with the director a
statement to that effect within 10 days of being provided with the notice of
garnishment or when the obligation to pay the debtor has been satisfied, as the
case may be.
(2) Where a statement is filed by the garnishee
under subsection (1), the court may, on application by the director within 30
days after the date the statement is filed
(a) summarily determine whether the garnishee is
liable under the notice; or
(b) order that an issue or question necessary for
the determination of the liability of the garnishee be tried.
(3) A determination of a court under this section
is a judgment of the court and may be so enforced.
(4) Where a garnishee files a statement under
subsection (1) and the director does not make an application within the period
specified in subsection (2), the garnishee is released from a claim under the
notice of garnishment.
Default of
payment by garnishee
22. (1) Unless
the garnishee files a statement under subsection 21(1), where the garnishee
does not pay to the director the amount due from the garnishee to the debtor or
the amount required to be paid by the garnishee under a notice of garnishment,
the director is entitled to judgment against the garnishee by filing with the
court the notice of garnishment and an affidavit stating that the garnishee has
not made payments required by this Act and has not filed a statement under subsection
21(1).
(2) A judgment under subsection (1) shall include
the amount of the default under the notice of garnishment, together with the
costs of the application.
(3) Payment made by or execution levied on the
garnishee is a valid discharge to the garnishee against the debtor to the
amount paid or levied, notwithstanding that those proceedings may be set aside
or the judgment or order is later reversed.
Enforcement
against Crown
23. A
notice of judgment under the Judgment
Enforcement Act may not be registered on a judgment against the Crown in
garnishment proceedings under section 21 or 22.
Withdrawal of
garnishment
24. The
director may provide a notice of withdrawal in the form prescribed by the
minister to a garnishee who has been provided with a notice of garnishment and,
on providing the notice of withdrawal, the garnishee shall cease to hold money
or make payments.
Dispute by debtor
25. (1) The
debtor may apply to a court for an order setting aside or varying a notice of
garnishment on the basis that money owed under the support order has been paid
or that there is no debt owing by the garnishee to the debtor.
(2) The debtor shall serve a notice of an
application under subsection (1) on the director.
Exemption from
garnishment
26. (1) On
application by the debtor, a judge may, where satisfied that it would be
grossly unfair and inequitable to do otherwise, make an order specifying the
amount of money that is exempt from garnishment.
(2) The debtor shall serve a notice of an
application under subsection (1) on the director.
Prohibition re:
fees
27. A
garnishee shall not charge a fee in respect of anything required to be done by
the garnishee under this Act.
Joint or joint
and several accounts
28. (1) A
notice of garnishment issued by the director shall, when provided to a
financial institution, attach 50% of the money credited to a deposit account
held in the financial institution in the name of the debtor together with one
or more other persons as joint or joint and several deposit account holders,
and the financial institution shall pay up to 50% of the money credited to the
deposit account to the director according to the notice of garnishment.
(2) The financial institution shall, within 10
days of being provided with the notice of garnishment, pay the money to the
director and at the same time
(a) notify the director if the account is held
jointly or jointly and severally in the name of two or more persons; and
(b) notify the co-holders of the account who are
not named in the notice of garnishment of the garnishment.
(3) Within 30 days after the financial institution
has given notification under subsection (2), a co-holder of the deposit account
may make an application to a court disputing the notice of garnishment claiming
ownership of all or part of the money that the financial institution paid to
the director.
(4) If a financial institution notifies the
director under paragraph (2)(a), the director shall not release the money
received under that subsection until 30 days after the financial institution so
notified the director, and the director may release the money after 30 days
unless a co-holder of the deposit account first provides the director with a
copy of an application under subsection (3) disputing a notice of garnishment.
(5) In a hearing to determine an application under
subsection (3), the money paid to the director shall be presumed to be owned by
the debtor and the court shall order
(a) that the garnishment be limited to the
debtor's interest in the money that was paid to the director; and
(b) that all or part of the money that was paid to
the director be returned to the co-holder only if it is satisfied that the co-holder
owns the money.
(6) Upon receipt of a copy of the court's order,
the director shall return to the co-holder any money determined by the court to
belong to the co-holder and may release any remaining money to the debtor.
(7) A co-holder may bring an action against a
debtor in court
(a) to recover any money owned by the co-holder
that was paid to the director under subsection (1); and
(b) to recover any interest that the co-holder
would have earned on the money owned by the co-holder that was paid to the
director under subsection (1).
(8) The director and the creditor are not parties
to an action under subsection (7).
(9) In this section, "deposit account" includes
a demand account, time account, savings account, passbook account, chequing
account, current account or other similar accounts at
(a) a bank listed in Schedule I or II to the Bank Act (Canada);
(b) a loan corporation or a trust corporation as
defined in the Trust and Loan
Corporations Licensing Act;
(c) a credit union as defined in the Credit Union Act; or
(d) a similar financial institution.
Payment of money
received
29. (1) Money
received by the director under a notice of garnishment is to be paid
immediately to the creditor to the extent of the creditor's entitlement under
the support order.
(2) Notwithstanding subsection (1), money received
by the director in excess of the amount required to satisfy the notice of
garnishment may be paid to the debtor or the garnishee or may, at the discretion
of the director, be held in trust by the director to satisfy any future
entitlement of the creditor under the support order.
(3) Where the creditor's entitlement under all
support orders has been satisfied and the director holds excess money in trust
under subsection (2), the director shall return the excess money to the debtor
or garnishee, or where, after reasonable attempts by the director the debtor or
garnishee cannot be located, into the Consolidated Revenue Fund.
Priority of
garnishment
30. (1) A
notice of garnishment provided under this Act has priority over an attachment or
judgment made under
(a) the Judgment
Enforcement Act;
(b) the Judicature
Act;
(c) the Small
Claims Act; and
(d) all provincial taxation statutes, including
(i) the Financial
Corporations Capital Tax Act,
(ii) the Gasoline
Tax Act,
(iii) the Income
Tax Act, 2000,
(iv) the Mineral
Holdings Impost Act,
(v) the Mining and Mineral Rights Tax Act, 2002,
(vi) the Retail
Sales Tax Act, and
(vii) the Tobacco
Tax Act,
against the same money whether made before
or after providing the notice of garnishment.
(2) The priority under subsection (1) is limited
to the arrears which accrued in the 3 years immediately preceding the issuance
of the notice of garnishment and any arrears which have accrued since that
time.
Attachment of
certain benefits
31. (1) Pension
payments, allowances or benefits that are authorized to be paid under an Act or
a program under an Act are garnishable for the purpose of enforcement of
support orders, notwithstanding the provisions of any Act other than this Act.
(2) Garnishment proceedings as set out in this Act
are to be applied under subsection (1).
Statement of finances
required by director
32. (1) Where
the debtor has defaulted in a payment required under a registered support
order, the director may provide the debtor with a statement of arrears in the
prescribed form and notify the debtor that the debtor is required to file a
statement of finances with the director.
(2) The statement of finances required by
subsection (1) shall be in the form prescribed by the minister and shall be
filed by the debtor with the director not more than 15 days after the debtor is
notified under subsection (1).
(3) The director may extend the period within
which the statement of finances is required to be filed by the debtor with the
director.
(4) Where the debtor intentionally fails to
provide a statement of finances satisfactory to the director or does not
provide the statement of finances satisfactory to the director, the debtor may
be subject to a fee charged by the director under section 58.
Summons
33. (1) Where
a debtor defaults in the payment of support under a support order, the director
may, in the case of a support order registered with him or her, obtain from the
court a summons in the prescribed form requiring the debtor to attend a default
hearing.
(2) The summons shall require the debtor to appear
at a default hearing, before the court, at a time and place set out in the
summons
(a) to show the court why the support order should
not be enforced;
(b) to be examined on oath or affirmation about
his or her finances, including
(i) the means or ability the debtor has of
complying with the support order,
(ii) the disposal the debtor has made of property
since the date on which the proceedings were started in which the support order
was made,
(iii) the debts that are owing to or by the debtor,
and
(iv) the debtor's assets, income and financial
obligations generally; and
(c) to show why the debtor should not be committed
to prison on the ground that he or she has wilfully defaulted in the payment of
support under a support order.
(3) The summons shall be served personally on the
debtor unless the court directs otherwise.
Default hearing
34. (1) At
a default hearing the court shall inquire into
(a) the resources of the debtor;
(b) the debtor's means and ability to comply with
the support order;
(c) the disposal the debtor has made of property
since the date on which proceedings were started in which the support order was
made;
(d) the debts that are owing to or by the debtor;
(e) the circumstances under which the debtor
defaulted in paying under the support order;
(f) the assets and income of the debtor's spouse
or person financially connected to the debtor when determining a debtor's
ability to pay a support order; and
(g) other matters the court considers relevant,
and for that purpose may examine on oath
or affirmation the creditor and the debtor and witnesses produced on behalf of
either of them.
(2) At the default hearing, unless the contrary is
shown, the debtor shall be presumed to have the ability to pay the arrears and
to make subsequent payments under the support order, and the statement of arrears
prepared and served by the director shall be presumed to be correct as to
arrears accruing while the support order is registered with the director.
(3) The director may, at any time during a default
hearing, request that the court make an order under subsection (4) or (5) or
both.
(4) The court may, by order, require a person to
file a financial statement and any other relevant documents with the court if
the court is satisfied that the person is financially connected to the debtor.
(5) The court may, by order, add a person as a
party to the hearing if the court
(a) has made or could make an order under
subsection (4); and
(b) is satisfied on considering all the circumstances,
including the purpose and effect of the dealings between the person and the
debtor and their benefit or expected benefit to the debtor, that there is some
evidence that the person has sheltered assets or income of the debtor such that
enforcement of the support order against the debtor may be frustrated.
(6) If the court is satisfied that a person who
was made a party to the hearing under subsection (5) sheltered assets or income
of the debtor such that enforcement of the support order against the debtor has
been frustrated, the court may, having regard to all the circumstances,
including the purpose and effect of the dealings and the benefit or expected
benefit from them to the debtor, make an order against the person it may make
against the debtor under section 36 or 37 to the extent of the value of the
sheltered assets or income and those sections shall, in that case, be read with
the necessary changes as against the person.
Warrant for
arrest
35. (1) Where
a debtor
(a) who has been served with a summons under
section 33; or
(b) who has been bound over to appear under subsection
(2),
does not appear at the time and place
stated and a just excuse is not offered for his or her failure to appear, the
court may issue a warrant for the arrest of the debtor to have him or her
brought before the court.
(2) Where a debtor is brought before the court on
a warrant, the court may bind him or her over to appear at a default hearing
and
(a) require that the debtor sign an undertaking
requiring his or her appearance where the court is satisfied that the debtor
would appear at a later date; or
(b) require
(i) surety on conditions the court considers
appropriate;
(ii) that a sum of money be deposited with the
court sufficient to ensure the appearance of the debtor at the default hearing;
or
(iii) that the debtor be committed to jail until the
default hearing.
Court order
36. (1) The
court may, unless it is satisfied that there are no arrears or that the debtor
is unable for valid reasons to pay the arrears or to make subsequent payments
under the support order, order that the debtor
(a) discharge the arrears by the periodic payments
that the court considers just;
(b) discharge the arrears in full by a specified
date;
(c) comply with the support order to the extent of
the debtor's ability to pay, but an order under this paragraph does not affect
the accruing of arrears;
(d) provide security in the form that the court
directs for the arrears and subsequent payment;
(e) report periodically to the court, the director
or a person specified in the order;
(f) provide immediately to the court, the director
or a person specified in the order particulars of a future change of address,
employment or income;
(g) file those income tax returns that the court
considers necessary;
(h) be imprisoned continuously or intermittently
for not more than 90 days unless the arrears are sooner paid; and
(i) where the court determines that the debtor
does not have the ability to pay, order that the debtor make an application to
vary the support order within a specific time period.
(2) The court may vary the order made under
subsection (1) where there is a material change in the debtor's circumstances
since the order was made.
(3) Where the court finds that the debtor is in
wilful default on an order made at a previous default hearing, the court shall
make an order committing the debtor to serve a term of imprisonment for a period
of more than 30 but less than 90 days.
(4) Imprisonment of a debtor under paragraph
(1)(h) or subsection (3) does not discharge arrears under a support order.
(5) An order for security under paragraph (1)(d)
or a subsequent order of the court may provide for the realization of the
security by seizure, sale or other means, that the court directs.
(6) Proof of service on the debtor of a support
order is not necessary for the purpose of a default hearing.
(7) A default hearing under this section and a
hearing on an application for variation of the support order in default may be
heard together or separately.
Realizing on security
37. Where
security has been ordered under paragraph 36(1)(d), or under another Act to
ensure payments under a support order and the debtor is in default of his or
her obligations under that support order, the court may, on the application of
the director, direct the realization or forfeiture of the security by seizure,
sale or other means and may make other orders as to costs that it considers
appropriate.
Evasion of debtor
38. (1) Where
the Trial Division or the Unified Family Court is satisfied, on unilateral
application by the director, that the debtor is hindering or defeating or is
attempting to hinder or defeat the enforcement of a support order by
dissipation, gift or transfer of assets, the Trial Division or the Unified
Family Court may make an order restraining or setting aside a dealing with, or
gift or transfer of, the assets.
(2) Where the Trial Division or the Unified Family
Court is satisfied, on unilateral application by the director, that the debtor
is attempting to hinder or defeat the enforcement of arrears under a support
order by leaving the province, the Trial Division or the Unified Family Court
may issue a warrant for the arrest of the debtor for the purpose of bringing
him or her before the Trial Division or the Unified Family Court under section
34 to be examined with respect to the debtor's ability to meet the obligations
under the support order.
PART IV
OTHER ENFORCEMENT MECHANISMS
Pension
entitlement attachment
39. In
this section and in sections 40 to 44,
(a) "administrator" means a person
charged with the administration of a pension plan and includes a financial or
other institution that issues, underwrites or is a depository of
(i) benefits,
(ii) money which has been transferred to another
plan, to a prescribed RRSP or to any other prescribed retirement plan that is
registered under the Income Tax Act
(Canada), including money transferred before January 1, 1993,
(iii) money earned by the transferred money referred
to in subparagraph (ii);
(b) "pension entitlement" means the
amount of money in a pension plan of a debtor which is available for attachment
under this Act;
(c) "pension plan" means a pension plan to
which the Pensions Benefits Act, 1997 applies but under which neither
the debtor nor the debtor's employer is making contributions and under which
the debtor is not receiving a pension benefit and includes
(i) benefits,
(ii) money which has been transferred to another
plan, to a prescribed RRSP or to any other prescribed retirement plan that is
registered under the Income Tax Act (Canada),
including money transferred before January 1, 1993, and
(iii) money earned by the transferred money referred
to in subparagraph (ii).
Pension
entitlement may be attached
40. (1) The
director may enforce a support order by attaching the pension entitlement of a
debtor where
(a) the debtor is in persistent arrears respecting
an obligation under a support order that is filed with the director;
(b) in the opinion of the director, all reasonable
steps have been taken to enforce the support order;
(c) the director has provided the administrator
and the debtor with a notice of the director's intention to attach the pension;
and
(d) the debtor has not, before the notice of
attachment has been provided to the administrator under section 44, made arrangements
satisfactory to the director to fulfil the obligation under the support order.
(2) The director may provide the notice referred
to in this section to the debtor at the most recent address for the debtor in
the director's records.
Notice of the
director's intention
41. (1) The
notice of the director's intention to attach the debtor's pension entitlement
shall
(a) direct the administrator to provide the
director and the debtor particulars of the debtor's pension entitlement within
30 days of the receipt of the notice;
(b) notify the debtor of his or her right to apply
to a court under section 43 within 30 days of the receipt of the information
referred to in paragraph (a) for an order that the debtor's pension entitlement
is not to be attached; and
(c) direct the administrator to notify the debtor
of the costs, income tax implications and pension reductions that would result
from the attachment of the debtor's pension entitlement.
(2) The administrator may provide the information
referred to in paragraph (1)(a) to the debtor at the most recent address for
the debtor in the administrator's records.
(3) Failure of the administrator to provide the information
referred to in paragraph (1)(a) does not render the attachment ineffective.
Restrictions
42. (1) The
director shall not enforce a support order by attaching the pension entitlement
of a debtor where
(a) the debtor is a member of a pension plan and
(i) the debtor is required to make contributions
to the plan that the director proposes to attach, or
(ii) the debtor's employer is required by the plan
to make contributions on the debtor's behalf to the plan that the director
proposes to attach; or
(b) the debtor is receiving a pension benefit
under the pension plan which the director proposes to attach.
(2) Where an administrator is notified of the director's
intention to attach the debtor's pension entitlement, the administrator shall
not pay out any of the debtor's pension entitlement at the direction of the
debtor until 60 days have elapsed from
(a) if no application is made to the court, the
date that the director received the information referred to in paragraph 41(1)(a);
or
(b) if an application is made to the court, the
date that the court orders that the debtor's pension entitlement may be
attached.
(3) Subsection (1) shall only apply to a pension
plan as defined in paragraph 39(c), and shall in no way constrain the ability
of the director to garnish a pension payment, allowance or benefit which is garnishable
under section 31.
Court application
43. (1) The
court, on application by the debtor, may order that the debtor's pension
entitlement is not to be attached where the court is satisfied that
(a) the debtor is not in
persistent arrears respecting an obligation under a support order that is registered
with the director;
(b) the debtor is a member of a pension plan and
(i) the debtor is required to make contributions
to the plan that the director proposes to attach, or
(ii) the debtor's employer is required by the plan
to make contributions on the debtor's behalf to the plan that the director
proposes to attach; or
(c) the debtor is receiving a pension benefit
under the pension plan that the director proposes to attach.
(2) A debtor applying to the court shall serve the
director and the administrator with a notice of the application.
Attachment of
pension entitlement
44. (1) Where
the director has provided a notice of intention to attach a debtor's pension entitlement
under section 40 and no application to the court has been made under section 43,
the director may issue a notice of attachment of the pension entitlement not
more than 60 days from the date the director receives the information required
under section 41.
(2) Where the director has provided a notice of
intention to attach a debtor's pension entitlement under section 40 and an
application under section 43 has been made and
(a) the court orders that the pension entitlement may
be attached, the director may issue a notice of attachment of the pension entitlement
not more than 60 days from the date of that order; or
(b) the court orders that
the pension entitlement shall not be attached, the director shall take no
further action under the notice of intention to attach the pension entitlement.
(3) Where the administrator complies with a notice
of attachment under this section, the administrator shall deduct from the
amount standing to the credit of the debtor in the debtor's pension plan
(a) the total amount of taxes, if any, that are
required to be deducted or withheld as a result of the attachment;
(b) the cost of complying
with the attachment calculated in the manner prescribed under the regulations;
(c) the lesser of
(i) the amount attached, and
(ii) the amount standing to the credit of the
debtor; and
(d) pay the amount deducted under paragraph (c) to
the director within 7 days after making the deduction.
(4) Where the director provides a notice of
attachment under subsection (1) or (2), the administrator shall
(a) immediately deliver, personally or by ordinary
mail, a copy of the notice to the debtor; and
(b) comply with the notice of attachment within 45
days of receiving the notice.
(5) The administrator may deliver the notice of
attachment to the debtor at the most recent address for the debtor in the
administrator's records.
(6) Failure of the administrator to comply with
paragraph (4)(a) does not render the attachment ineffective.
(7) Sections 21-23 apply, with the necessary
modifications, to an administrator provided with the director's notice of attachment
of the debtor's pension entitlement.
(8) If an amount has been attached under this section
(a) the debtor has no further claim or entitlement
to any pension plan benefit under the pension plan respecting the amount attached;
(b) the amount standing to the credit of the debtor
is reduced by the amount deducted under paragraph (a); and
(c) neither the administrator nor the pension plan
is liable to any person by reason of having made payment to the director under
to this Act.
Registered plan
attachment
45. (1) In
this section and in sections 46 to 50,
(a) "DPSP" means a deferred profit sharing
plan as defined in section 147 of the federal Act;
(b) "federal Act" means the Income Tax Act (Canada);
(c) "registered plan" means a DPSP, an
RRIF or an RRSP;
(d) "RRIF" means a registered retirement
income fund as defined in section 146.3 of the federal Act;
(e) "RRSP" means a registered retirement
savings plan as defined in section 146 of the federal Act; and
(f) "trustee" means a person charged
with the administration of a registered plan.
Registered plan may
be attached
46. The
director may enforce a support order by attaching the registered plan of a
debtor where
(a) the debtor is in persistent arrears under a support
order that is filed with the director;
(b) in the opinion of the director, all reasonable
steps have been taken to enforce the support order;
(c) the director has provided the trustee and the
debtor with a notice of the director's intention to attach the registered plan;
and
(d) the debtor has not, before the notice of
attachment has been provided to the trustee under section 50, made arrangements
satisfactory to the director to fulfil the obligation under the support order.
Notice of the
director's intention
47. (1) The
notice of the director's intention to attach the debtor's registered plan shall
(a) direct the trustee to provide the director and
the debtor particulars of the debtor's registered plan within 30 days of the
receipt of the notice;
(b) notify the debtor of his or her right to apply
to the court under section 50 within 30 days of the receipt of the information
referred to in paragraph (a) for an order that the debtor's registered plan is
not to be attached; and
(c) direct the trustee to notify the debtor of the
costs, income tax implications and reductions that would result from the attachment
of the debtor's registered plan.
(2) The trustee may provide the information required
under this section to the debtor at the most recent address for the debtor in
the trustee's records.
(3) Failure of the trustee to provide the
information required under this section does not render the attachment
ineffective.
Restrictions
48. Where
a trustee is provided with a notice of the director's intention, the trustee
shall not pay out any of the debtor's registered plan at the direction of the
debtor until 60 days have elapsed from
(a) if no application is made to the court, the
date that the director received the information referred to in paragraph 47(1)(a);
or
(b) if an application is made to the court, the
date that the court orders that the debtor's registered plan may be attached.
Court application
49. (1) The
court, on application by the debtor, may order that the debtor's registered
plan is not to be attached where the court is satisfied that the debtor is not
in persistent arrears respecting an obligation under a support order that is
filed with the director.
(2) A debtor applying to the court shall serve the
director and the trustee with a notice of the application.
Attachment of
registered plan
50. (1)
Where the director has provided a notice of intention to attach a debtor's
registered plan under section 46 and no application to the court has been made
under section 49, the director may issue a notice of attachment of the
registered plan not more than 60 days from date the director receives the information
required under section 47.
(2) Where the director has provided a notice of
intention to attach a debtor's registered plan under section 46 and an
application under section 49 has been made and
(a) the court orders that the registered plan may
be attached, the director may issue a notice of attachment of the registered
plan not more than 60 days from the date of that order; or
(b) the court orders that the registered plan
shall not be attached, the director shall take no further action under the
notice of intention to attach the registered plan.
(3) Where the trustee complies with a notice of
attachment under this section, the trustee shall deduct from the amount
standing to the credit of the debtor in the debtor's registered plan
(a) the total amount of taxes, if any, that are
required to be deducted or withheld as a result of the attachment;
(b) the cost of complying
with the attachment calculated in the manner prescribed under the regulations;
(c) the lesser of
(i) the amount attached, and
(ii) the amount standing to the credit of the
debtor; and
(d) pay the amount deducted under paragraph (c) to
the director within 7 days after making the deduction.
(4) Where the director provides a notice of
attachment under subsection (1) or (2), the trustee shall
(a) immediately deliver, personally or by ordinary
mail, a copy of the notice to the debtor; and
(b) comply with the notice of attachment within 45
days of receiving the notice.
(5) The trustee may deliver the notice of
attachment to the debtor at the most recent address for the debtor in the trustee's
records.
(6) Failure of the trustee to comply with
paragraph (4)(a) does not render the attachment ineffective.
(7) Sections 21-23 apply, with the necessary
modifications, to a trustee provided with the director's notice of attachment
of the debtor's registered plan.
(8) If an amount has been attached under this
section
(a) the debtor has no further claim or entitlement
to any registered plan benefit under the registered plan respecting the amount
attached;
(b) the amount standing to the credit of the
debtor is reduced by the amount deducted under paragraph (a); and
(c) neither the trustee nor the registered plan is
liable to any person by reason of having made payment to the director under
this Act.
Corporation with
debtor as sole shareholder
51. (1) In
this section, "corporation" means a corporation in 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 severally
liable with a debtor for payments required under a support order if
(a) the debtor is in persistent arrears under a
support order that is filed with the director; and
(b) the director has served the corporation with a
notice of garnishment respecting the amount owing by the debtor under the
support order.
(3) On becoming jointly and severally liable under
subsection (2)
(a) the corporation continues to be liable as long
as the debtor continues to be liable for payments required under the support
order;
(b) any enforcement measure that may be taken with
respect to the debtor may be taken with respect to the corporation; and
(c) the amount of a payment required under a
support order that is paid by the corporation is a debt owed by the debtor to
the corporation.
(4) Notwithstanding subsection (3), a corporation
is not liable for payments under a support order that come due on or after the date
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 specifying the date on
which the debtor ceased to have a beneficial interest in the shares of the corporation;
(b) giving the name and address of the person who
acquired the beneficial interest in the debtor's shares; and
(c) specifying the nature and amount of the
consideration that the debtor received or will receive for the transfer of the
beneficial interest in the shares.
(5) Where the director disputes the validity of a
notification received under subsection (4), the director may apply to a court
and the court may
(a) summarily determine whether the corporation is
liable under this section; or
(b) order that an issue or question necessary for
the determination of the liability of the corporation be tried.
Corporation controlled
52. (1) In
this section
(a) "corporation" means a corporation
that is controlled by
(i) a debtor, or
(ii) a debtor and the immediate family members of
the debtor;
(b) "immediate family member" means a
spouse, former spouse, child, sibling, step-sibling, half-sibling, parent or
step-parent of the debtor or a cohabiting partner with whom the debtor is
living in a conjugal relationship outside of marriage;
(c) "to control", with respect to a
corporation, means to hold, 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, 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.
(2) A director may apply to the court for an order
declaring that a corporation is jointly and severally liable with a debtor for
payments required under a support order if
(a) the debtor is in persistent arrears under a support
order filed with the director; and
(b) the corporation has been served with a notice
of garnishment respecting the amount owing by the debtor under the support
order.
(3) If, on an application under subsection (2), the
court orders that the corporation is jointly and severally liable with the
debtor for payments required under a support order
(a) the corporation continues to be liable as long
as the debtor continues to be liable for payments required under the support
order;
(b) any enforcement measure that may be taken with
respect to the debtor may be taken with respect to the corporation; and
(c)
the amount of a payment required under a
support order that is paid by the corporation is a debt owed by the debtor to
the corporation.
(4) Notwithstanding subsection (3), a corporation
is not liable for payments under a support order that come due on or after the
date 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 specifying the date on
which the debtor ceased to have a beneficial interest in the shares of the
corporation;
(b) giving the name and address of the person who
acquired the beneficial interest in the debtor's shares; and
(c) specifying the nature and amount of the
consideration that the debtor received or will receive for the transfer of the
beneficial interest in the shares.
(5) Where the director disputes the validity of a
notification received under subsection (4), the director may apply to a court
and the court may
(a) summarily determine whether the corporation is
liable under this section; or
(b) order that an issue or question necessary for
the determination of the liability of the corporation be tried.
Suspension of
driving privileges
53. (1) In
this section, "driver's licence" means a driver's licence as defined
by and issued under the Highway Traffic
Act and belonging to a class prescribed by the regulations.
(2) The director may direct the Registrar of Motor
Vehicles to suspend, cancel or refuse to renew the driver's licence of a debtor
if
(a) the debtor is in default under a support order
filed with the director;
(b) the debtor is in persistent arrears;
(c) in the opinion of the director, all reasonable
steps have been taken to enforce the support order; and
(d) the 30 day period referred to in subsection (3)
has elapsed.
(3) Before directing the Registrar of Motor
Vehicles to take an action under subsection (2), the director shall notify the
debtor that unless the debtor makes an arrangement satisfactory to the director
within 30 days of the notification to comply with the support order, the director
shall direct the Registrar of Motor Vehicles to suspend, cancel or refuse to
renew the driver's licence of the debtor.
(4) If the director is satisfied that a debtor
requires a driver's licence for employment or medical purposes, the director
may direct the Registrar of Motor Vehicles to impose any of the following conditions
on the driver's licence of the debtor, rather than suspending, canceling or
refusing to renew the debtor's driver's licence:
(a) the debtor shall be authorized to operate a
motor vehicle only for employment or medical purposes; and
(b) the debtor shall be restricted to operating a
motor vehicle at specific hours and places.
(5) The director shall direct the Registrar of
Motor Vehicles to reinstate a driver's licence suspended or cancelled or to
renew a driver's licence previously refused renewal under this section where
(a) the debtor pays all arrears owing under the
support order;
(b) the debtor is complying with arrangements made
with the director under subsection (3);
(c) the support order is varied and the debtor is
complying with the terms of the varied order; or
(d) the support order is withdrawn under section
8.
(6) Subsection (5) applies with the necessary
modifications to revoking conditions imposed on a driver's licence under this
section.
(7) A debtor may apply to a court for an order
(a) revoking the suspension or cancellation of the
debtor's driver's licence or the refusal to renew the debtor's driver's
licence; or
(b) revoking the conditions imposed on the
driver's licence of the debtor.
(8) A debtor applying to the court under
subsection (7) shall serve the director and the Registrar of Motor Vehicles with a notice of that application.
(9) The court may make an order under subsection
(7) if the court is satisfied that
(a) the debtor is not in persistent
arrears;
(b) a person's health is or would be seriously
threatened if the driver's licence of the debtor were not reinstated; or
(c) the debtor requires a driver's licence for
employment purposes.
(10) If the court makes an order under paragraph (7)(a),
the court may also order the Registrar of Motor Vehicles to impose any conditions
on the driver's licence of the debtor that may be imposed under subsection (4).
(11) If the debtor is in default under one or more support
orders, the director shall not request that the Registrar of Motor Vehicles reinstate
the debtor's licences unless
(a) all arrears under all
support orders are paid;
(b) an arrangement or arrangements have been made,
on terms satisfactory to the director, to pay all arrears under all the support
orders, and the debtor is in compliance with the arrangement or arrangements;
or
(c) all arrears under all
support orders are the subject of a court order or orders for payment and the
debtor is in compliance with the court order or orders.
(12) An agreement by the parties to a support order
to avoid or prevent the applicability of this section to the enforcement of the
support order is void and of no force or effect.
(13) This section applies to a default under a
support order that occurred before or after the commencement of this section.
Big game licences
54. (1) In
this section and section 55, "licence", when used with respect to a
debtor, means a big game licence issued to the debtor under Part IV of the Wild Life Regulations and the Wild
Life Act.
(2) The director may request that the minister
responsible for the Wild Life Act suspend or cancel a debtor's licence if
(a) the debtor is in default under a support order
filed with the director;
(b) the debtor is in persistent arrears;
(c) in the opinion of the director, all reasonable
steps have been taken to enforce the support order; and
(d) the 30 day period referred to in subsection (3)
has elapsed.
(3) Before requesting that the minister
responsible for the Wild Life Act take an action under subsection (2),
the director shall notify the debtor that unless the debtor makes an
arrangement satisfactory to the director within 30 days of the notification to
comply with the support order, the director shall request that the minister
responsible for the Wild Life Act suspend or cancel the debtor's licence.
(4) The director shall request that the minister
responsible for the Wild Life Act reinstate a debtor's licence suspended
or cancelled under this section where
(a) the debtor pays all arrears owing under the
support order;
(b) the debtor is complying with arrangements made
with the director under subsection (3);
(c) the support order is varied and the debtor is
complying with the terms of the varied order; or
(d) the support order is withdrawn under section
8.
(5) A debtor may apply to a court for an order revoking
the suspension or cancellation of the debtor's licence.
(6) A debtor applying to the court under
subsection (5) shall serve the director and the minister responsible for the Wild Life Act with a notice of that
application.
(7) The court may make an order under subsection (5)
if the court is satisfied that the debtor is not in persistent arrears.
(8) If the debtor is in default on one or more
other support orders, the director shall not request that the minister responsible
for the Wild Life Act reinstate the debtor's licences unless,
(a) all arrears under all the support orders are
paid;
(b) an arrangement or arrangements have been made,
on terms satisfactory to the director, to pay all arrears under all the support
orders, and the debtor is in compliance with the arrangement or arrangements;
or
(c) all arrears under all the support orders are
the subject of a court order or orders for payment and the debtor is in compliance
with the court order or orders.
(9) An agreement by the parties to a support order
to avoid or prevent the applicability of this section to the enforcement of the
support order is void and of no force or effect.
(10) This section applies to a default under a
support order that occurred before or after the commencement of this section.
Further
default
55. If the director requests that the minister
responsible for the Wild Life Act reinstate a debtor's licence under
this section and the debtor subsequently defaults within 12 months from the
date of reinstatement the director may request that the minister responsible
for the Wild Life Act cancel the debtor's licence in accordance with
section 54 for the remainder of the season for which the licence was issued.
Garnishment of
lottery prizes
56. (1) In
this section
(a) "corporation"
means the Atlantic Lottery Corporation;
(b) "lottery"
means a lottery scheme permitted by virtue of the Criminal Code and conducted
and managed by the Corporation; and
(c) "prize"
means a sum of money or goods payable as a prize in a lottery.
(2) Where a debtor who is in default under a support
order filed with the director is entitled to a prize that the Corporation
values at $1000 or more, the director may garnish that prize to the extent of
the arrears and in the manner prescribed by the regulations.
PART V
GENERAL
Application of
payments
57. Money
paid on account of a support order is to be credited in the following order:
(a) to the payment most recently due;
(b) to interest owing on a payment;
(c) to the principal balance outstanding; and
(d) to costs prescribed in the regulations and
fees prescribed by the minister.
Fee charged by
director
58. (1)
The director shall not charge a fee to a creditor for services provided to the
creditor under this Act.
(2) The director may, with the approval of the
minister, charge a fee respecting matters arising in the course of enforcing a
support order, including a circumstance where
(a) a debtor fails to make a payment under a
support order
(i) by the date required in the order, or
(ii) in accordance with an arrangement made between
the debtor and the director;
(b) a debtor fails to file a statement of finances
with the director as required under this Act; or
(c) a debtor or another person on behalf of a
debtor makes a payment to the director under a support order or other amounts
owing under this Act by cheque, pre‑authorized withdrawal or money order
and
(i) the cheque or withdrawal is dishonoured on the
grounds that no funds or insufficient funds were available, or
(ii) a stop payment order is placed on the cheque,
withdrawal or money order.
(3) A person who pays a fee under subsection (2)
may not be charged with an offence under this Act with respect to the contravention.
Service
59. (1) A
notice or document required by this Act to be served shall be served in the
manner prescribed in the Rules of the Supreme
Court, 1986 for service of a statement of claim.
(2) Where a proceeding is brought to enforce a
support order, it is not necessary to prove that the debtor was served with the
support order.
Presumption of
debtor's ability to pay
60. In
proceedings brought under this Act, the debtor is presumed to have the ability
to pay the arrears and to make subsequent payments under the support order.
Signature of director
as evidence
61. (1) A
statement of arrears signed by the director is admissible in evidence as, in
the absence of evidence to the contrary, proof of the arrears without prior
notice to the other party.
(2) A statement signed by the director that a
support order is registered with the director is admissible in evidence as
conclusive proof of the facts contained in the statement.
(3) A document signed by the director with respect
to the enforcement of a support order is admissible in evidence without proof
of the signature or official character of the director.
(4) Where the signature of the director is
required for the purposes of this Act, the signature may be written, engraved,
lithographed or reproduced by another mode of reproducing words in visible
form.
Application to
vary support order
62. (1) Where
an application is made to a court to vary a support order, the clerk or
registrar of the court shall notify the director of the application.
(2) Where the order is varied, the clerk or
registrar of the court shall file with the director the order of the court that
varies the support order.
Proof of default
63. In
an action brought on default of an obligation under a support order, proof of
the default may be made either by oral or affidavit evidence or by other
evidence that the court may allow.
Capacity of minor
64. A
minor who is a spouse or a parent has the capacity to begin, conduct and defend
a proceeding and initiate and complete steps for enforcement of a support order
without the intervention of a guardian appointed by the court.
No limitation
period
65. (1) Notwithstanding
the Limitations Act, there is no
limitation on the enforcement of arrears of payments under a support order.
(2) Notwithstanding subsection (1), the director
may, in his or her discretion, choose not to collect arrears of payments under
a support order which came due more than the period of time prescribed in the
regulations before the date of the coming into force of this Act.
(3) Where, before the coming into force of this
Act, arrears under a support order were no longer enforceable under the
previous limitation period, those arrears may not now be enforced due to the
coming into force of this section.
Debt no defence
66. The
fact that a debtor is in debt or has paid debts is not a defence to proceedings
brought to enforce a support order.
Debt of estate
67. (1) Where
a debtor dies and, at the time of his or her death, the debtor is in default of
payments under a support order, the amount in default is a debt of the estate
of the debtor and recoverable by the director from the estate.
(2) Where the person in whose favour a support
order was made dies, his or her personal representative, the director or the
minister responsible for the Income and
Employment Support Act where a subrogation exists under section 10 may
recover payments under a support order that are in default at the time of the
death of that person.
Relief of
obligation to pay
68. Where
money is recoverable under section 67, a judge of the court in which the
support order was made or registered may, on the application of an interested
party, relieve the debtor or, where the debtor has died, the estate of the
debtor, of the obligation to pay, in whole or in part, the amount in default
where the judge is satisfied that
(a) having regard to the interests of the debtor
or the estate of the debtor, it would be grossly unfair and inequitable not to
do so;
(b) having regard to the interests of the person
in whose favour the support order was made or his or her estate, it is
justified; and
(c) having regard to the interests of other
dependants of the debtor, interference with the claim of the estate of the
person in whose favour the support order was made or the claim of the minister
responsible for the Income and Employment
Support Act is justified.
Communications
not privileged
69. Notwithstanding
another Act, rule or law, in proceedings brought under this Act, a person is
compellable to disclose a communication made to that person by his or her
spouse.
Witnesses
70. (1) A
judge or clerk may issue a subpoena to a witness to be served in the province,
and the person subpoenaed, on being offered the prescribed fee, shall attend as
subpoenaed.
(2) A subpoena issued under subsection (1) may be
served by a person by showing it to the witness and delivering to him or her a
copy of the subpoena, together with the fees.
(3) Where a subpoena referred to in subsection (1)
has been issued by a judge or clerk of the Provincial Court, it has the effect
of a subpoena issued out of the Trial Division and a witness who does not
attend in obedience to a subpoena is liable to contempt proceedings and is
liable in the same manner as if he or she disobeyed a subpoena issued out of
that court.
Enforcement proceedings
71. (1) Enforcement
proceedings under this Act shall be brought in the court in which the original
support order was obtained where, on the balance of convenience, it is
appropriate to do so, unless some other court is specifically designated by
this Act.
(2) The balance of convenience under subsection
(1) shall favour the debtor.
No liability
72. The
minister, the minister responsible for the Income and Employment Support Act,
the director or a person
acting on behalf of the director is not liable for a loss or damage suffered by
a person because of anything done or omitted to be done in good faith with
respect to the enforcement of a support order.
Provision not enforceable
73. A
provision in an agreement or support order by which a creditor agrees to, or
that requires that a creditor
(a) withdraw a support order that is registered
with the director under this Act; or
(b) file with the court that made the support
order or the director a notice stating that the creditor does not wish to have
a support order enforced by the director
is not enforceable.
Rights under Act
74. The
rights conferred by this Act are in addition to and not in substitution for
rights conferred by another Act of the province.
Right of appeal
75. (1) An
appeal lies from an order or decision made by a court under this Act within 30
days of the date of the order or decision appealed from
(a) to the Court of Appeal where the order under
appeal was made by a judge of the Trial Division or the Unified Family Court;
or
(b) to the Trial Division where the order under
appeal was made by a Provincial
Court judge.
(2) There is no appeal from an order or decision
of the Trial Division with respect to an appeal from an order or decision of a Provincial Court judge made under paragraph (1)(b) except by leave of the Court of Appeal.
Fees and Forms
76. The
minister may set fees and prescribe forms for the purpose and administration of
this Act.
Regulations
77. The
Lieutenant-Governor in Council may make regulations
(a) respecting the manner of registering a support
order by a creditor or debtor;
(b) prescribing the rules for service of
documents;
(c) prescribing the time period and amount of
persistent arrears;
(d) prescribing what is a nominal amount of
support owing under a support order;
(e) respecting the information that can be
disclosed under section 12 and the purposes for which it can be disclosed;
(f) respecting the disclosure of financial
information;
(g) respecting the
disclosure of additional information to a consumer reporting agency under
subsection 13(2);
(h) respecting the manner
of calculating the cost of complying with attachment under paragraphs 44(3)(b)
and 50(3)(b);
(i) prescribing affected
classes of licences issued under the Highway
Traffic Act;
(j) respecting the manner
of garnishing lottery prizes under section 56; and
(k) generally, to give
effect to the purpose of this Act.
Offence
78. (1) A
person who
(a) fails to file a statement of finances in
accordance with this Act;
(b) knowingly gives false information in a
statement of finances filed with the director or the court;
(c) fails to comply with a notice of garnishment;
or
(d) fails or refuses to provide information to the
director upon request
is guilty of an offence and liable on
summary conviction to a fine of not more than $3,000 or to imprisonment for a
term of not more than 90 days, or to both.
(2) An offence under subsection (1) includes an
offence by a corporation under the provisions of that subsection.
Transitional
79. The
coming into force of this Act shall not affect or invalidate
(a) enforcement activities under a support order
where those activities had begun before the coming into force of this Act; or
(b) any order made under the authority of the
previous Act.
SNL2000 cE-11.1
Amdt.
80. Paragraph 3(1)(a) of the Enforcement of Canadian Judgments Act is amended by deleting the
reference "Support Orders
Enforcement Act" and substituting the reference "Support Orders Enforcement Act, 2006".
RSNL1990 cF-2 Amdt.
81. (1) Section 56 of the Family Law Act is amended by deleting the reference "Support Orders Enforcement Act" and
substituting the reference "Support
Orders Enforcement Act, 2006".
(2) Subsection 65(5) of the Act is amended by
deleting the reference "Support
Orders Enforcement Act" and substituting the reference "Support Orders Enforcement Act, 2006.
RSNL1990 cH-3
Amdt.
82. The Highway
Traffic Act is amended by adding immediately after section 64 the
following:
Suspension or
cancellation
64.1 (1)
Upon receiving direction from the Director of Support Enforcement under
subsection 53(2) or 53(4) of the Support
Orders Enforcement Act, 2006, the Registrar shall, with respect to the person
named in the direction and in accordance with the direction
(a) by written order, suspend, cancel or refuse to
renew the person's driver's licence; or
(b) impose the specified conditions on the person's
driver's licence.
(2) Upon receiving direction from the Director of
Support Enforcement under subsection 53(5) or 53(6) of the Support Orders Enforcement Act, 2006, the Registrar shall, with
respect to the person named in the direction and in accordance with the
direction
(a) reinstate a driver's licence suspended or
cancelled under this section; or
(b) revoke conditions imposed on a driver's licence
under this section.
(3) The Registrar shall reinstate a driver's licence
suspended or cancelled, or revoke conditions imposed on a driver's licence in
accordance with an order of a court under subsection 53(9) of the Support Orders Enforcement Act, 2006.
(4) Notwithstanding subsection (2) or (3), the
Registrar shall not reinstate a driver's licence under this section unless the
Registrar is satisfied that the person meets all the requirements for the
issuance of a driver's licence.
(5) A person who holds a driver's licence which
has been restricted under this section and drives a motor vehicle in
contravention of any restriction imposed by the Registrar commits an offence.
SNL2002 cI-0.1 Amdt.
83. Section 40 of the Income and Employment Support Act is amended by deleting the reference
"Support Orders Enforcement Act"
and substituting the reference "Support
Orders Enforcement Act, 2006".
SNL2002 cI-19.2
Amdt.
84. Subsection 19(3) of the Interjurisdictional Support Orders Act is amended by deleting the
reference "Support Orders Enforcement
Act" and substituting the reference "Support Orders Enforcement Act, 2006".
SNL1996 cJ-1.1
Amdt.
85. (1) Paragraph 2(1)(bb) of the Judgment Enforcement Act is repealed and
the following substituted:
(bb) "judgment" includes an order,
decree, certificate, duty or right that may be enforced as or in the same
manner as a judgment of the court including a judgment made under the Small Claims Act and the Federal Court Act, but does not include
a support order registered with the director under the Support Orders Enforcement Act, 2006, except as provided in section
3;
(2) Subsection 3(3) of the Act is repealed and the
following substituted:
(3) Notwithstanding subsection (1), where a
support order filed with the director under the Support Orders Enforcement Act, 2006 is in arrears, the director
appointed under that Act may register that support order in accordance with
section 38 and that registered support order, to the extent of the arrears,
shall be considered to be a notice of judgment to which this Act applies and
the director shall be considered a creditor for the purpose of the Act.
(3) Section 3 of the Act is amended by adding
immediately after subsection (3) the following:
(3.1) Notwithstanding paragraph 2(1)(bb) and subsection
(3), where a support order is not filed with the director under the Support Orders Enforcement Act, 2006,
that support order may be registered in accordance with section 38 and when
registered it shall be considered to be a notice of judgment to which this Act
applies.
(4) Subsection 18(3) of the Act is amended by
deleting the reference "Support
Orders Enforcement Act" and substituting the reference "Support Orders Enforcement Act, 2006".
(5) Subsection 121(2) of the Act is amended
(a) in paragraph (e), by deleting the reference
"Support Orders Enforcement Act"
and substituting the reference "Support
Orders Enforcement Act, 2006"; and
(b) in paragraph (f), by deleting the reference
"Support Orders Enforcement Act"
and substituting the reference "Support
Orders Enforcement Act, 2006".
RSNL1990 cW-8
Amdt.
86. Section 10 of the Wild Life Act is amended by adding immediately after subsection (3)
the following:
Suspension or
cancellation
10.1 (1) Upon
receiving a request from the Director of Support Enforcement under subsection
54(2) or section 55 of the Support Orders
Enforcement Act, 2006, the minister shall, with respect to the person named
in the request and in accordance with the request by written order, suspend or
cancel the person's licence.
(2) Upon receiving a request from the Director of
Support Enforcement under subsection 54(4) of the Support Orders Enforcement Act, 2006, the minister shall, with
respect to the person named in the request and in accordance with the request,
reinstate a licence suspended or cancelled under this section.
(3) The minister shall reinstate a licence
suspended or cancelled in accordance with an order of a court under subsection
54(7) of the Support Orders Enforcement
Act, 2006.
(4) Notwithstanding subsection (2) or (3), the
minister shall not reinstate a licence under this section unless the minister
is satisfied that the person meets all the requirements for the issuance of a
licence.
(5) A person who holds a licence which has been suspended
or cancelled under this section and who hunts or takes any action in contravention
of this section commits an offence.
Commencement
87. This Act shall come into force on a day to be
proclaimed by the Lieutenant-Governor in Council.
ŠEarl G. Tucker, Queen's Printer