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Statutes of Newfoundland and Labrador 2012


CHAPTER 11

AN ACT TO AMEND THE INTERJURISDICTIONAL SUPPORT ORDERS ACT

(Assented to June 27, 2012)

Analysis


        1.   S.2 Amdt.
Definitions

        2.   Part I, Division 1 heading R&S
Claimant Resident in the Province

        3.   S.6 Amdt.
Support application

        4.   S.7 Amdt.
Submitting application to designated authority

        5.   S.8 Amdt.
Provisional order

        6.   Part I, Division 2 heading R&S
Claimant Resident Outside the Province

        7.   Section 10 R&S
Notice of hearing

        8.   S.11 Amdt.
Information that court shall consider

        9.   S.13 Amdt.
Choice of law

      10.   S.14 Amdt.
Order

      11.   S.19 Amdt.
Registration

      12.   S.20 Amdt.
Foreign order

      13.   Part III, Division 1 heading R&S
Applicant Resident in the Province

      14.   S.25 Amdt.
Application to vary support order

      15.   S.26 Amdt.
Submitting application to designated authority

      16.   S.27 R&S
Application to vary support order

      17.   S.28 Amdt.
Provisional order of variation

      18.   Part III, Division 2 heading R&S
Applicant Resident Outside the Province

      19.   S.30 R&S
Notice of hearing

      20.   S.31 Amdt.
Information that court shall consider

      21.   S.32 R&S
Choice of law

      22.   S.35 R&S

              Sending order to reciprocating jurisdiction

      23.   S.36 Amdt.
Jurisdiction

      24.   S.38.1 Added
Request to locate

      25.   S.48 Amdt.
Transitional

      26.   SNL2006 c.31.1 Amdt.


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

SNL2002 cI-19.2
as amended

        1. (1) Section 2 of the Interjurisdictional Support Orders Act is amended by adding immediately after paragraph (i) the following:

           (i.1)  "request to locate" means a written request to locate a person for the purpose of facilitating a proceeding with respect to the establishment, variation, registration or enforcement of a support order;

             (2)  Paragraph 2(k) of the Act is repealed and the following substituted:

             (k)  "support order" means

                      (i)  a court order or an order made by an administrative body requiring the payment of support, or

                     (ii)  the provisions of a written agreement requiring the payment of support where those provisions are enforceable in the jurisdiction in which the agreement was made as if they were contained in an order of a court of that jurisdiction,

and includes the recalculation by an administrative body of the payment of support for a child, where the recalculation is enforceable in the jurisdiction in which the recalculation was made as if it were an order of, or were contained in an order of, a court of that jurisdiction; and

 

        2. The heading in Division 1 of Part I of the Act is repealed and the following substituted:

Division 1
Claimant Resident in the Province

 

        3. (1) Subsection 6(1) of the Act is repealed and the following substituted:

Support application

        6. (1) Where a claimant resides in the province and believes that the respondent habitually resides in a reciprocating jurisdiction, the claimant may start a process in the province that could result in a support order being made in the reciprocating jurisdiction.

             (2)  Paragraph 6(2)(b) of the Act is repealed and the following substituted:

             (b)  a copy of the specific statutory or other legal authority on which the claimant's support application is based, unless the claimant is relying on the law of the jurisdiction where the respondent habitually resides;

 

        4. Paragraph 7(2)(b) of the Act is repealed and the following substituted:

             (b)  send a copy of the completed application, as soon as practicable, to the appropriate authority in the reciprocating jurisdiction in which the claimant believes the respondent habitually resides.

 

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

Provisional order

        8. (1) Where the claimant believes that the respondent habitually resides in a reciprocating jurisdiction that requires a provisional order, the court may, on application by the claimant and without notice to and in the absence of the respondent, make a provisional order taking into account the specific statutory or other legal authority on which the claimant's support application is based.

 

        6. The heading in Division 2 of Part I of the Act is repealed and the following substituted:

Division 2
Claimant Resident Outside the Province

 

        7. Section 10 of the Act is repealed and the following substituted:

Notice of hearing

      10. (1) Where the designated authority receives a support application from the appropriate authority in a reciprocating jurisdiction with information that the respondent named in the support application habitually resides in the province, the designated authority shall serve on the respondent, in accordance with the regulations,

             (a)  a copy of the support application; and

             (b)  a notice requiring the respondent to appear at the place and time set out in the notice and to provide the information or documents required by the regulations.

             (2)  Where the designated authority has not served the respondent in accordance with subsection (1) and knows or believes that the respondent is habitually resident in another reciprocating jurisdiction in Canada, the designated authority shall

             (a)  send the support application to the appropriate authority in that other reciprocating jurisdiction; and

             (b)  notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.

             (3)  Where the designated authority

             (a)  is unable to determine where the respondent resides; or

             (b)  has not served the respondent in accordance with subsection (1) and knows or believes that the respondent is habitually resident in a jurisdiction outside Canada,

the designated authority shall return the support application to the appropriate authority in the originating reciprocating jurisdiction with available information respecting the location and circumstances of the respondent.

 

        8. (1) Subsection 11(3) of the Act is repealed and the following substituted:

             (3)  Where the information or documents requested under subsection (2) are not received by the court within 12 months from the date of the request, the court may dismiss the support application and terminate an interim support order made under paragraph (2)(b).

             (2)  Section 11 of the Act is amended by adding immediately after subsection (3) the following:

          (3.1)  Notwithstanding subsection (3), where, before the coming into force of that subsection an order for additional information or documents was made, the additional information or documents shall be received by the court within 18 months of the date of the request.

 

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

Choice of law

      13. (1) In determining the entitlement to support for a child, the court shall first apply the law of the province, but where the child is not entitled to support under that law, the court shall apply the law of the jurisdiction in which the child habitually resides.

 

      10. Section 14 of the Act is amended by adding immediately after subsection (4) the following:

             (5)  A support order shall specify the law applied under section 13, and where the order does not specify the law applied, the order is considered to have been made under the law of the province.

 

      11. Section 19 of the Act is amended by adding immediately after subsection (3) the following:

             (4)  The duration of the support obligation in an extra-provincial order or foreign order registered under subsection (1) is governed by the law of the jurisdiction under which the order was made.

             (5)  The onus is on the appropriate authority of the reciprocating jurisdiction to provide proof of the law governing duration of the support obligation to the satisfaction of the designated authority.

             (6)  Notwithstanding subsection (3), where the designated authority is unable to determine the duration of the support obligation under the law of the reciprocating jurisdiction, the designated authority may enforce the support order for the duration determined by the law of the province.

 

      12. (1) Subsection 20(1) of the Act is repealed and the following substituted:

Foreign order

            20.  (1) After the registration of a foreign order under section 19, the designated authority shall, in accordance with the regulations, notify the party to the order believed to habitually reside in the province of the registration of the order.

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

             (5)  For the purpose of subparagraph (3)(b)(iii), a court has jurisdiction where

             (a)  both parties to the foreign order habitually reside in the reciprocating jurisdiction outside Canada; or

             (b)  a party does not habitually reside in the reciprocating jurisdiction outside Canada but is subject to the jurisdiction of the court that made the foreign order.

 

      13. The heading in Division 1 of Part III of the Act is repealed and the following substituted:

Division 1
Applicant Resident in the Province

 

      14. (1) Subsection 25(1) of the Act is repealed and the following substituted:

Application to vary support order

      25. (1) Where an applicant resides in the province and believes that the respondent habitually resides in a reciprocating jurisdiction, the applicant may start a process in the province that could result in a support variation order being made in the reciprocating jurisdiction.

             (2)  Paragraph 25(2)(c) of the Act is repealed and the following substituted:

             (c)  a copy of the specific statutory or other legal authority on which the applicant's support variation is based, unless the applicant is relying on the law of the jurisdiction where the respondent habitually resides;

 

      15. Paragraph 26(2)(b) of the Act is repealed and the following substituted:

             (b)  send a copy of the completed support variation application, as soon as practicable, to the appropriate authority in the reciprocating jurisdiction in which the applicant believes the respondent habitually resides.

 

      16. Section 27 of the Act is repealed and the following substituted:

Application to vary support order

      27. Where the applicant habitually resides in the province and the respondent no longer habitually resides in a reciprocating jurisdiction, the applicant may apply directly to the court to vary the support order, and the court may make a support variation order where the respondent has been given notice of the proceeding.

 

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

Provisional order of variation

      28. (1) Where the applicant believes that the respondent habitually resides in a reciprocating jurisdiction that requires a provisional order of variation, the court may, on application by the applicant and without notice to and in the absence of the respondent, make a provisional order of variation taking into account the specific statutory or other legal authority on which the applicant's support variation application is based.

 

      18. The heading in Division 2 of Part III of the Act is repealed and the following substituted:

Division 2
Applicant Resident Outside the Province

 

      19. Section 30 of the Act is repealed and the following substituted:

Notice of hearing

      30. (1) Where the designated authority receives a support variation application from the appropriate authority in a reciprocating jurisdiction with information that the respondent named in the support variation application habitually resides in the province, the designated authority shall serve on the respondent, in accordance with the regulations,

             (a)  a copy of the support variation application; and

             (b)  a notice requiring the respondent to appear at the place and time set out in the notice and to provide the information or documents required by the regulations.

             (2)  Where the designated authority has not served the respondent in accordance with subsection (1) and knows or believes that the respondent is habitually resident in another reciprocating jurisdiction in Canada, the designated authority shall

             (a)  forward the support variation application to the appropriate authority in that other reciprocating jurisdiction; and

             (b)  notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.

             (3)  Where the designated authority

             (a)  is unable to determine where the respondent resides; or

             (b)  has not served the respondent in accordance with subsection (1) and knows or believes that the respondent is habitually resident in a jurisdiction outside Canada,

the designated authority shall return the support variation application to the appropriate authority in the originating reciprocating jurisdiction with available information respecting the location and circumstances of the respondent.

 

      20. (1) Subsection 31(3) of the Act is repealed and the following substituted:

             (3)  Where the information or documents requested under subsection (2) are not received by the court within 12 months from the date of the request, the court may dismiss the support variation application and terminate an interim support variation order made under paragraph (2)(b).

             (2)  Section 31 of the Act is amended by adding immediately after subsection (3) the following:

          (3.1)  Notwithstanding subsection (3), where, before the coming into force of that subsection, an order for additional information or documents was made, the additional information or documents shall be received by the court within 18 months of the date of the request.

 

      21. Section 32 of the Act is repealed and the following substituted:

Choice of law

      32. (1) In determining the entitlement to receive or to continue to receive support for a child, the court shall first apply the law of the province but where the child is not entitled to support under that law, the court shall apply the law of the jurisdiction in which the child habitually resides.

             (2)  In determining the amount of support for a child, the court shall apply the law of the province.

             (3)  For greater certainty, the law of the province referred to in subsection (2) includes the applicable table under the Child Support Guidelines Regulations.

             (4)  In determining the entitlement of a party other than a child to receive or to continue to receive support and the amount of that support, the court shall apply the law of the province.

             (5)  Where under the law of the province a party other than a child is not entitled to receive or to continue to receive support, the court shall apply the law of the jurisdiction in which that party habitually resides.

             (6)  Where a party other than a child is neither entitled to receive or to continue to receive support under the law of the province nor under the law of the jurisdiction in which that party habitually resides, the court shall apply the law of the jurisdiction in which the parties last  maintained a common habitual residence.

 

      22. Section 35 of the Act is repealed and the following substituted:

Sending order to reciprocating jurisdiction

      35. The designated authority shall, as soon as practicable, send a certified copy of a support variation order made under this Division and reasons, if any, to the appropriate authority in the reciprocating jurisdiction in which the applicant resides and, where the support order was originally made in another reciprocating jurisdiction, to the appropriate authority in that jurisdiction.

 

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

Jurisdiction

      36. (1) The court may, on a party's motion and after taking into account any right of a government or agency of a government under section 43, vary a support order registered in the province under Part II of this Act or under the former Act where

             (a)  both the applicant and respondent accept the court's jurisdiction;

             (b)  both the applicant and respondent habitually reside in the province; or

             (c)  the respondent habitually resides in the province and the support order is registered by the applicant under Part II of this Act or under the former Act.

 

 

      24. The Act is amended by adding immediately after section 38 the following:

Request to locate

   38.1 (1) Where the designated authority receives a request to locate from an appropriate authority in a reciprocating jurisdiction, the designated authority may take the steps it considers appropriate for the purpose of obtaining information with respect to the whereabouts of the person named in the request.

             (2)  The designated authority may respond to a request to locate by advising the appropriate authority in the reciprocating jurisdiction whether the person has been located in the province, but shall not disclose specific information respecting the location of the person.

             (3)  Information received by the designated authority from an appropriate authority in a reciprocating jurisdiction or through inquiries made under subsection (1) is confidential, except that the designated authority may use and disclose the information for the purpose of carrying out its duties and powers under this Act and the regulations.

 

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

SNL2006 cS-31.1
Amdt.

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

Access by director to information

      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 or a person referenced in section 38.1 of the Interjurisdictional Support Orders Act with respect to whom a request to locate has been made, including

             (a)  wages, salary or other income;

             (b)  income sources;

             (c)  location of income sources;

             (d)  assets and liabilities;

             (e)  location of assets, including account numbers with financial institutions;

              (f)  financial status;

             (g)  copies of income tax returns;

             (h)  social insurance number;

              (i)  location, address and place of employment;

              (j)  location, address and place of residence;

             (k)  telephone and facsimile number; and

              (l)  any other information that the director considers necessary for the enforcement of the support order.