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Revised Statutes of Newfoundland 1990


CHAPTER S-31

AN ACT RESPECTING THE ENFORCEMENT OF SUPPORT ORDERS

Analysis

1. Short title

PART I
INTERPRETATION

2. Interpretation

PART II
ENFORCEMENT BY
DIRECTOR

3. Director of Support Enforcement

4. Order filed

5. Withdrawal of filing

6. Subrogation of rights

7. Effect of filing

8. Withdrawal

9. Director to pay money to creditor

10. Access by director to information

11. Confidentiality

12. Non-liability for acts done in good faith

13. Filing of support order

PART III
ENFORCEMENT

14. Notice of garnishment

15. Extra-provincial notice

16. Service of notice

17. Application to court

18. Effect of notice

19. Garnishment of money owing by Crown

20. Dispute of garnishment

21. Default of payment by garnishee

22. Prohibition re execution

23. Dispute by debtor

24. Withdrawal

25. Exemption from garnishment

26. Prohibition re fees

27. Payment of money received

28. Priority of garnishment

29. Attachment of certain benefits

30. Distress

31. Duty to pay money recovered

32. Appointment of receiver

33. Statement of finances required by director

34. Statement of finances required by court

35. Offence

36. Summons

37. Default hearing

38. Warrant for arrest

39. Court order

40. Realizing on security

41. Evasion of debtor

42. Right of appeal

PART IV
GENERAL

43. Application of payments

44. Fees

45. Service

46. Presumption of debtor's ability to pay

47. Signature of director as evidence

48. Application to vary support order

49. Proof of default

50. Capacity of minor

51. Action for arrears

52. Debt no defence

53. Debt of estate

54. Relief of obligation to pay

55. Communications not privileged

56. Witnesses

57. Enforcement proceedings

58. Procedure

59. Provision not enforceable

60. Rights under Act

61. Regulations


Short title

1. This Act may be cited as the Support Orders Enforcement Act.

1988 c58 s1

PART I
INTERPRETATION

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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 where a subrogation exists under section 6 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 3;

(f) "garnishee" means a person who is served with a notice of garnishment or garnishment order;

(g) "minister" means the Minister of Social Services and includes an official of the minister's department;

(h) "notice of garnishment" means a notice of garnishment as described in section 14;

(i) "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

(j) "support order" means a provision in an order, made before or after July 1, 1989, 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 of an amount in reimbursement for a benefit or assistance provided to a party, including an amount in reimbursement for the 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.

1988 c58 s2; 1989 c11 s6

PART II
ENFORCEMENT BY DIRECTOR

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Director of Support Enforcement

3. (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 of Justice.

(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 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 under 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.

1988 c58 s3

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Order filed

4. (1) A support order may be registered with the director by a creditor or debtor.

(2) A support order made after July 1, 1989 may be registered with the director by the minister.

(3) A support order made before July 1, 1989 may be registered with the director in the manner and in the order of priority prescribed in the regulations.

(4) A person other than the director shall not take proceedings to enforce a support order during the time it is registered with the director.

(5) Nothing in this Act prohibits the director or a creditor from taking proceedings under another Act to enforce a support order.

(6) 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 it is 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 regulations.

(7) The person who instituted the application for the order may file with the court and the director a notice in the prescribed form signed by the person stating that he or she does not wish to have the order enforced by the director.

(8) A support order or provisional order made by a court outside the province either before or after July 1, 1989 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.

1988 c58 s4

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Withdrawal of filing

5. (1) A support order registered with the director may be withdrawn by a notice in the prescribed form 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 from the office.

(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 Social Assistance Act, the minister may register the order with the director whether or not a notice referred to in subsection 4(7) or (8) has been given, and the order shall not be withdrawn except by, or with the written consent of, the minister.

(5) Notice under this section may be effected by mail.

(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).

1988 c58 s5

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Subrogation of rights

6. (1) Where a person is in receipt of benefits under the Social Assistance Act, the following rights of that person with respect to a support order are subrogated to the Crown as represented by the minister:

(a) the right to apply for a support order or a provisional order;

(b) the right to receive payments under a support order or a provisional 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) Where a person is in receipt of benefits under the Social Assistance Act, that person's solicitor is authorized to provide information to the minister about the person's case to the extent only that it proves necessary for the administration of the Social Assistance Act.

(3) A subrogation under subsection (1) of the rights of a person who is in receipt of social assistance exists for the period of time that the person is receiving social assistance.

(4) Where there is subrogation under subsection (1), the minister may, notwithstanding the death of the person in whose favour a support order is made, begin or continue a proceeding under section 53 or 54.

1988 c58 s6

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Effect of filing

7. (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) 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 or before July 1, 1989; 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.

1988 c58 s7

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Withdrawal

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

(c) by the debtor on the application of the debtor.

1988 c58 s8

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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 support order registered in the office to the extent of the entitlement of the creditor under that support order.

(2) 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.

(3) The director shall report annually to the Minister of Justice on the activities of the director under this Act, 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.

(4) 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 in the office.

(5) The director shall, on the request of the proper officer of a reciprocating state or a court of a reciprocating state under the Reciprocal Enforcement of 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 during the 3 years immediately preceding the date of the statement; and

(b) the payments made through the office during the period mentioned in paragraph (a) by or on behalf of the debtor.

1988 c58 s9

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Access by director to information

10. (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 as to

(a) the wages, salary or other income;

(b) the assets or liabilities;

(c) the financial status; and

(d) the location, address and place of employment

of the debtor that is shown on a record in the possession or control of the person, corporation or body.

(2) 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.

(3) Where, on application to the Trial Division or the Unified Family Court, it appears that

(a) the director has been refused information after making a demand under subsection (1); or

(b) a person has need of an order under this subsection for the enforcement of a support order that is not registered with the director,

the Trial Division or the Unified Family Court may order a person, corporation or public body, including the Crown, to provide the Trial Division or the Unified Family Court or the person that the Trial Division or the Unified Family Court directs with information as to

(c) the wages, salary or other income;

(d) the assets or liabilities;

(e) the financial status; and

(f) the location, address and place of employment

of the person against whom the order is being enforced, that is shown on a record in the possession or control of the person, corporation or public body, including the Crown.

(4) This section applies despite another Act or regulation and despite a common law rule of confidentiality or privilege.

(5) Where the director has been refused information after making a demand under subsection (1) and obtains an order under subsection (3), the court shall award the costs of the motion to the director.

(6) 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).

(7) 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.

1988 c58 s10

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Confidentiality

11. (1) A person shall not disclose information retained 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 an official performing similar functions in another jurisdiction; or

(c) where a judge orders it to be disclosed.

(3) Where a judge makes an order under subsection 10(3) 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.

1988 c58 s11; 1989 c11 s6

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Non-liability for acts done in good faith

12. The minister, the Minister of Justice, the director or a person acting on behalf of the director under this Act are 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.

1988 c58 s12

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Filing of support order

13. The director or a creditor may file with the Trial Division a support order made by the Provincial Court and, on being filed, the parts of the support order that relate to support are considered to be a judgment of the Trial Division.

1988 c58 s13

PART III
ENFORCEMENT

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Notice of garnishment

14. (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 and serve a notice of garnishment directed to a person alleged to be indebted to the debtor in the form prescribed by the regulations.

(4) A notice under this section is effective for the purposes of the Family Orders and Agreements Enforcement Assistance Act (Canada).

1988 c58 s14; 1989 c11 s6

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Extra-provincial notice

15. 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 and serve a notice of garnishment in accordance with section 14.

1988 c58 s15; 1989 c11 s6

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Service of notice

16. (1) A notice of garnishment shall be served in accordance with the regulations.

(2) On receipt of the notice of garnishment, the garnishee shall immediately deliver, personally or by ordinary mail, the true copy of the notice to the debtor.

(3) Failure of the garnishee to comply with subsection (2) does not make the garnishment ineffective.

1988 c58 s16

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Application to court

17. (1) Where a support order is not registered with the director the creditor may apply to the court for a garnishment order directed to a person alleged to be indebted to the debtor.

(2) A garnishment order may be made where

(a) the debtor has defaulted in payment; or

(b) there is no default by the debtor at the time of the application but the judge considers that on the evidence the circumstances warrant a garnishment order being made to secure payment under the support order.

(3) A garnishment order, which shall be in the form prescribed by the regulations, may include payment of

(a) arrears;

(b) a lump sum; or

(c) future periodic payments.

(4) The court may order payments to be made in lump sum amounts or in periodic instalments.

(5) The order shall be filed with the sheriff's office within 30 days of its being made in court.

(6) The sheriff shall enforce the order as provided in the Rules of the Supreme Court for the enforcement of an execution order.

(7) An order under this section is effective for the purposes of the Family Orders and Agreements Enforcement Assistance Act (Canada).

1988 c58 s17; 1989 c11 s6

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Effect of notice

18. (1) A notice of garnishment, on service on the garnishee, binds money then due and accruing due from the garnishee to the debtor, in the amount required under subsection (2).

(2) On service of 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 served during the 30 days immediately preceding the date of service;

(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 service of that notice, and the director has been served with the variation order

(a) a notice of variation in the form prescribed in the regulations shall be served on the garnishee by the director; and

(b) the garnishee shall, on service under paragraph (a), hold money due to the debtor in accordance with the notice of variation.

1988 c58 s18

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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 Social Assistance Act.

(2) A creditor may effect service on the Crown under the regulations by serving 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.

(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.

1988 c58 s19

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Dispute of garnishment

20. (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 service on him or her of 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.

1988 c58 s20

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Default of payment by garnishee

21. (1) Unless the garnishee files a statement under subsection 20(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, with proof of service, and an affidavit stating that the garnishee has not made payments required by this Act and has not filed a statement under subsection 20(1).

(2) A judgement 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.

1988 c58 s21

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Prohibition re execution

22. An execution is not to issue on a judgment given under section 20 or 21 against the Crown in garnishment proceedings under this Act.

1988 c58 s22

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Dispute by debtor

23. (1) The debtor may apply to the 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 in accordance with the regulations a notice of an application under subsection (1) on the director.

1988 c58 s23

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Withdrawal

24. The director may serve a notice of withdrawal in the form prescribed in the regulations on a garnishee who has been served with a notice of garnishment and, on service of the notice of withdrawal, the garnishee shall cease to hold money or make payments.

1988 c58 s24

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Exemption from garnishment

25. 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.

1988 c58 s25

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Prohibition re fees

26. A garnishee shall not charge a fee in respect of anything required to be done by the garnishee under this Act.

1988 c58 s26

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Payment of money received

27. (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.

(2) Money received by the director in excess of the amount required to satisfy the notice of garnishment is to be paid to the debtor.

1988 c58 s27

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Priority of garnishment

28. (1) A notice of garnishment or garnishment order served under this Act has priority over an execution or attachment made under

(a) the Rules of the Supreme Court;

(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 Mineral Holdings Impost Act,

(iv) the Mining and Mineral Rights Tax Act,

(v) the Retail Sales Tax Act, and

(vi) the Tobacco Tax Act,

against the same money whether made before or after the service of the notice of garnishment or the garnishment order.

(2) The priority under subsection (1) is limited to 3 years of arrears; after 3 years the creditor is in the same position as an unsecured creditor.

1988 c58 s28; 1989 c11 s6; 1990 c62 s23

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Attachment of certain benefits

29. (1) Notwithstanding another Act respecting pensions or other allowances, 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.

(2) Garnishment proceedings as set out in this Act are to be applied under subsection (1).

1988 c58 s29

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Distress

30. (1) Where the debtor defaults in making a payment under a support order, the creditor may apply to a judge of the court where the order was made or registered for a warrant of distress.

(2) On an application under subsection (1), a judge may issue a warrant of distress directed to a sheriff, bailiff or peace officer requiring him or her to levy on the goods and chattels of the debtor the amount of money in default that is specified in the warrant together with the costs and charges of the levy and distress.

(3) Where the director files an affidavit with information that may be prescribed the court may issue a warrant of distress directed to a sheriff, bailiff or peace officer requiring him or her to levy on the goods and chattels of the debtor the amount of money in default that is specified in the warrant together with the costs and charges of the levy and distress.

1988 c58 s30; 1989 c11 s6

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Duty to pay money recovered

31. The person to whom a warrant is directed under section 30 shall transmit to the person to whom payment was ordered an amount realized by him or her under execution of the warrant.

1988 c58 s31

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Appointment of receiver

32. (1) On an application to the Trial Division or the Unified Family Court by a creditor, a judge may, where he or she considers it just to enforce obligations under a support order, on the consent of a person, make an order appointing that person as the receiver, either conditionally or unconditionally, of money due or to become due to or earned or to be earned by the debtor.

(2) Where a receiver realizes money under an order made under subsection (1), the receiver shall, after deducting his or her costs, pay the money to the applicant to satisfy the debtor's obligation under the support order and pay the balance to the debtor.

(3) An order under this section takes priority over a subsequent receivership order or execution proceedings arising under another Act, but does not take priority over a proceeding under the Bankruptcy Act (Canada).

1988 c58 s32

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Statement of finances required by director

33. (1) Where the debtor has defaulted in a payment required under a support order that is registered with the director, the director by notice served under the regulations, on the debtor together with a statement of arrears in the prescribed form may require the debtor 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 regulations and shall be filed by the debtor with the director not more than 15 days after the debtor is served with a notice 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.

1988 c58 s33

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Statement of finances required by court

34. (1) Where the debtor defaults in a payment required under a support order that is not registered with the director, the creditor may file a statement of arrears in the prescribed form with the court and by notice served, in accordance with the regulations, on the debtor together with the statement of arrears require the debtor to file a statement of finances with the court.

(2) The statement of finances required by subsection (1) shall be in the form prescribed by the regulations and shall be filed by the debtor with the court not more than 15 days after the debtor is served with a notice under subsection (1).

(3) The debtor shall serve the creditor, under the regulations, with a copy of the statement of finances filed with the court.

(4) The court may extend the period within which the statement of finances is required to be filed by the debtor with the court.

1988 c58 s34

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Offence

35. A debtor who

(a) does not file a statement of finances in accordance with this Act; or

(b) knowingly gives false information in a statement of finances filed with the director or the court

is guilty of an offence and liable on summary conviction to a fine of not more than $2,000 or to imprisonment for a term of not more than 3 months, or to both.

1988 c58 s35

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Summons

36. (1) Where a debtor defaults in the payment of support under a support order, the director, in the case of a support order registered with him or her, or the creditor may obtain a summons from the court, in the prescribed form, to attend at 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.

1988 c58 s36

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Default hearing

37. (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 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; and

(f) 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 order, and the statement of arrears prepared and served by the director shall be presumed to be correct as to arrears accruing while the order is registered with the director.

1988 c58 s37

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Warrant for arrest

38. (1) Where a debtor

(a) who has been served with a summons under section 36; 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 non-appearance, 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 surety on conditions the court considers appropriate;

(b) require that a sum of money be deposited with the court sufficient to ensure the appearance of the debtor at the default hearing; or

(c) commit the debtor to jail until the default hearing.

1988 c58 s38

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Court order

39. (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 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 order to the extent of the debtor's ability to pay, but an order under this clause 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 or employment;

(g) be imprisoned continuously or intermittently for not more than 90 days unless the arrears are sooner paid; and

(h) be imprisoned continuously or intermittently for not more than 90 days on default in a payment ordered under this subsection.

(2) The court that made an order under subsection (1) may vary the order where there is a material change in the debtor's circumstances.

(3) Imprisonment of a debtor under paragraph (1)(g) or (h) does not discharge arrears under an order.

(4) 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.

(5) Proof of service on the debtor of a support order is not necessary for the purpose of a default hearing.

(6) 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.

1988 c58 s39

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Realizing on security

40. Where a security, deposit or bond has been ordered under paragraph 39(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 in which the support order was made or registered may, on the application of the creditor, direct the realization or forfeiture of the security, deposit or bond by seizure, sale or other means and may make other orders as to costs that it considers appropriate.

1988 c58 s40

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Evasion of debtor

41. (1) Where the Trial Division or the Unified Family Court is satisfied, on unilateral application by the creditor, 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 or make an order for appointment of a receiver under section 32.

(2) Where the Trial Division or the Unified Family Court is satisfied, on unilateral application by the creditor, 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 to be examined with respect to the debtor's ability to meet the obligations under the support order.

1988 c58 s41

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Right of appeal

42. (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 of an order made under paragraph (1)(b) except by leave of the Court of Appeal.

1988 c58 s42

PART IV
GENERAL

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Application of payments

43. 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 and fees prescribed in the regulations.

1988 c58 s43

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Fees

44. (1) The director may charge fees for his or her services in the amount and to the persons prescribed in the regulations.

(2) The director shall not charge a fee to a creditor for services provided to the creditor under this Act.

1988 c58 s44

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Service

45. (1) Subject to the other provisions of this Act respecting service, 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 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.

1988 c58 s45

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Presumption of debtor's ability to pay

46. 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.

1988 c58 s46

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Signature of director as evidence

47. (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 in the office 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.

1988 c58 s47

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Application to vary support order

48. (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.

1988 c58 s48

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Proof of default

49. 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 judge may allow.

1988 c58 s49

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Capacity of minor

50. 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.

1988 c58 s50

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Action for arrears

51. (1) Notwithstanding the Limitation of Actions Personal and Guarantees Act, proceedings for the enforcement of arrears of a payment under a support order may be started up to 10 years after the date the payment became due.

(2) An order for payment of arrears shall not exceed an amount equal to the payments owing under a support order for the period of 10 years before the date of the order for payment of arrears.

1988 c58 s51

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Debt no defence

52. The fact that a debtor is in debt or has paid debts is not a defence to proceedings brought to enforce a support order.

1988 c58 s52

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Debt of estate

53. (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 creditor from the estate.

(2) Where the person in whose favour a support order was made dies, his or her personal representative, or the director acting on behalf of the minister, may recover payments under a support order that are in default at the time of the death of that person.

1988 c58 s53

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Relief of obligation to pay

54. Where money is recoverable under section 53, 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 is justified.

1988 c58 s54

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Communications not privileged

55. 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.

1988 c58 s55

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Witnesses

56. (1) A judge or clerk of the Provincial Court 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) A subpoena issued under subsection (1) 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.

1988 c58 s56

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Enforcement proceedings

57. (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) Where the director is enforcing an order the balance of convenience shall favour the debtor.

1988 c58 s57

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Procedure

58. (1) Matters under this Act which are heard in the Trial Division or the Unified Family Court may be governed by the Divorce Rules of the Supreme Court of Newfoundland.

(2) The procedure in the Provincial Court shall be governed by the Summary Proceedings Act and where that Act is silent, the Rules of the Supreme Court shall govern, where applicable.

(3) The provisions of the Criminal Code respecting bail, bail hearings and delay in release shall apply to a proceeding before the Trial Division or the Unified Family Court, where applicable.

1988 c58 s58

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Provision not enforceable

59. 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.

1988 c58 s59

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Rights under Act

60. The rights conferred by this Act are in addition to and not in substitution for rights conferred by another Act of the province.

1988 c58 s60

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Regulations

61. The Lieutenant-Governor in Council may make regulations

(a) prescribing forms required by this Act;

(b) prescribing the rules for service of documents;

(c) respecting the information that can be disclosed under section 11 and the purposes for which it can be disclosed;

(d) with respect to the disclosure of financial information;

(e) prescribing Crown employees who are to be served under this Act;

(f) prescribing fees for services under this Act;

(g) prescribing the dates on which support orders made before July 1, 1989 may be registered with the director; and

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

1988 c58 s61

©Earl G. Tucker, Queen's Printer