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Statutes of Newfoundland 1997


CHAPTER 33

CHAPTER 33

AN ACT TO AMEND THE FAMILY LAW ACT

(Assented to December 19, 1997)

Analysis

1. S.2 Amdt.
Interpretation

2. S.35 Amdt.
Definitions

3. S.37 R&S
37. Obligation to provide
child support
37.1 Priority to child
support
37.2 Transitional

4. S.39 Amdt.
Order for support

5. S.40 Amdt.
Powers of court

6. S.47 Amdt.
Review and variation
of orders

7. S.48 Amdt.
Financial statement

8. Ss. R&S
85. Regulations
86. Fees and
forms

9. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSN1990 cF-2 as amended

1. Subsection 2(1) of the Family Law Act is amended by adding immediately after paragraph (d) the following:

(d.1) "respondent" means a person against whom proceedings are taken under this Act;

2. (1) Section 35 of the Act is amended by repealing paragraph (a) and substituting the following:

(a) "child support guidelines" means the child support guidelines established under the regulations;

(a.1) "dependant" means a person to whom another has an obligation to provide support under this Act;

(2) Paragraph 35(b) of the Act is amended by adding immediately after the word "section" the number and comma "37,".

3. Section 37 of the Act is repealed and the following substituted:

Obligation to provide child support

37. (1) Every parent has an obligation, to the extent that the parent is capable of doing so, to provide support for his or her child.

(2) A court shall, upon application, make an order for support of a child in accordance with the child support guidelines.

(3) Notwithstanding subsection (2), a court may make an order for support, interim support or a variation of support for a child in an amount that differs from the amount that would be in accordance with the child support guidelines if that court is satisfied that

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

(b) the application of the child support guidelines would result in an amount of support that is inequitable given those special provisions.

(4) Where, under subsection (3), a court makes an order for support, interim support or a variation of an order for support of a child in an amount that differs from the amount that would be in accordance with the child support guidelines, that court shall record its reasons for ordering the differing support amount.

(5) Notwithstanding subsection (2), a court may make an order for support of a child in an amount that differs from the amount that would be in accordance with the child support guidelines if

(a) the parents of the child consent; and

(b) the court is satisfied that reasonable arrangements have been made for the support of the child.

(6) When making an order for support of a child, the court may disregard a provision of a domestic contract or paternity agreement respecting the support of that child where the provision is unreasonable and contrary to the child support guidelines.

(7) The obligation under subsection (1) does not extend to

(a) a child who has attained the age of majority unless that child is under the charge of his or her parent and is unable by reason of illness, disability, pursuit of reasonable education or other cause to withdraw from the parentís charge or to obtain the necessities of life;

(b) a child who has not attained the age of majority and who is married; and

(c) a child over the age of 16 years who has withdrawn from parental care.

Priority to child support

37.1 (1) Where the court considers an application for an order for support of a child and an application for an order for support of a dependent who is not a child, priority shall be given to the support of the child when determining the applications.

(2) Where, as a result of giving priority to the support of a child, the court cannot make an order for support of a dependent who is not a child or the court makes an order for support of a dependent who is not a child in an amount less than it otherwise would have, the court shall record its reason for making that determination.

(3) Where, as a result of giving priority to the support of a child, an order for support of a dependent who is not a child is less than it otherwise would have been, a material reduction or termination of the support for the child shall be considered to be a material change of circumstances for the purpose of an application for an order for support of a dependent who is not a child or for variation of an order for support of a dependent.

(4) Subsection 60(1) does not apply to an action on application for an order for the support of a spouse in the circumstances set out in subsection (3).

Transitional

37.2 Where, before the coming into force of this section, an application is made for an order for support of a child, including an application under section 47 to vary an order for support of a child, and the court has not considered any evidence in the application other than with respect to an interim order, the application shall be considered to be made under this Act as it exists immediately after this section comes into force, subject to directions which the court considers appropriate.

4. (1) Subsection 39(1) of the Act is amended by deleting the phrase "A court may," and substituting the phrase "Subject to section 37, a court may,".

(2) Paragraph 39(7)(c) of the Act is repealed and the following substituted:

(c) apportion the obligation in accordance with section 37.

(3) Paragraph 39(8)(b) of the Act is repealed and the following substituted:

(b) share the burden of child support in accordance with section 37;

(4) Subsection 39(9) of the Act is amended by adding immediately before the word "consider" the words "comply with section 37 and shall" and by repealing paragraph (k).

5. Subsection 40(6) of the Act is repealed and the following substituted:

(6) Where an application is made under section 37 or 39, the court may make an interim order that it considers appropriate and an interim order made with respect to the support of a child shall be made in accordance with section 37.

6. Section 47 of the Act is amended by adding immediately after subsection (4) the following:

(5) Where an application is made under subsection (1) to vary an order for support that provides a single amount of money for the combined support of one or more children and a parent, the court shall rescind that order and treat the application as an application for an order for support of a child and an application for an order for support of a parent.

(6) Notwithstanding subsection (1), a direction or order for support made under that subsection with respect to the support of a child is subject to section 37.

7. Subsection 48(1) of the Act is amended by adding immediately after the word "by" the words "regulation and".

8. Section 85 of the Act is repealed and the following substituted:

Regulations

85. The Lieutenant-Governor in Council may make regulations

(a) establishing child support guidelines for child support orders made under sections 37, 39 and 47, including guidelines

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

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

(iii) respecting the recalculation of the amount payable,

(iv) respecting the circumstances that give rise to the making of a variation order with respect to a support order,

(v) respecting the determination of income,

(vi) authorizing the court to impute income, and

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

(b) respecting the establishment, structure and procedure of a child support service and respecting applications made to, recalculations by and decisions of that child support service;

(c) respecting a matter referred to as prescribed by regulation; and

(d) generally to give effect to the purpose of this Act.

Fees and forms

86. The Minister of Justice may set fees and establish forms for the purpose and administration of this Act.

Commencement

9. This Act comes into force on a date to be proclaimed by the Lieutenant-Governor in Council.

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