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RSNL1990 CHAPTER F-2

FAMILY LAW ACT

Amended:

1994 c42; 1997 c33; 1998 c30 s2; 1998 cP-7.1 s79; 1998 cC-12.1 s80; 1999 c22 s19(2); 2000 c29; 2001 c42 s14; 2001 cN-3.1 s2; 2002 cI-0.1 s57; 2004 cL-3.1 s32; 2004 c47 s15; 2006 cS-31.1 s81; 2009 c16 s9; 2009 c31 s7; 2010 cC-12.2 s85; 2013 c16 s25

CHAPTER F-2

AN ACT RESPECTING THE LAW OF THE FAMILY

Analysis


       
1.   Short title

       
2.   Interpretation

     
2.1   Labrador Inuit rights

       
3.   Staying application

       
4.   Mediation

       
5.   Purpose

              PART I
THE MATRIMONIAL HOME

       
6.   Interpretation

       
7.   Application of Part

       
8.   Matrimonial home

       
9.   Designation

     
10.   Disposition

     
11.   Setting aside disposition

     
12.   Proof of status

     
13.   Mortgage sale

     
14.   Court powers re disposition

     
15.   Court powers re possession

     
16.   Interim order

     
17.   Registration of order

              PART II
MATRIMONIAL ASSETS

     
18.   Definitions

     
19.   Purpose of Part

     
20.   Application of Part

     
21.   Division of assets

     
22.   Variation of division

     
23.   Allegation of misconduct

     
24.   Statement of property

     
25.   Confidentiality of statement

     
26.   Powers of court

     
27.   Question of title

     
28.   Realization of security

     
29.   Business assets

     
30.   Interim order

     
31.   Presumptions

     
32.   Conflict of laws

     
33.   Effect of agreement

     
34.   Re the Wills Act

   
34.1   Matrimonial or business assets

              PART III
FAMILY SUPPORT

     
35.   Definitions

     
36.   Obligation of spouse or partner for support

     
37.   Obligation to provide child support

   
37.1   Priority to child support

   
37.2   Transitional

     
38.   Obligation of child to support parent

     
39.   Order for support

     
40.   Powers of court

     
41.   Object of court

     
42.   Domestic contract may be filed with court

     
43.   Effect of divorce proceedings

     
44.   Absconding respondent or debtor

     
45.   Restraining orders

     
46.   Domestic contract or paternity agreement

     
47.   Review and variation of orders

     
48.   Financial statement

     
49.   Access to records

     
50.   Order for return by employer

     
51.   Examination of debtor

     
52.   Penalty for default

     
53.   Attachment of wages

     
54.   Security for payment

     
55.   Attachment for support

     
56.   Enforcement of order

     
57.   Termination of support order on death

     
58.   Closed hearings

     
59.   Right of appeal

     
60.   Limitation

              PART IV
DOMESTIC CONTRACTS

     
61.   Definitions

     
62.   Marriage contracts

     
63.   Cohabitation agreements

     
64.   Separation agreements

     
65.   Form of contract

     
66.   Contracts subject to best interests of child

     
67.   Rights of donors of gifts

     
68.   Contracts made outside the province

     
69.   Paternity agreements

     
70.   Application of Act to existing contracts

     
71.   Death of spouse

              PART V
AMENDMENTS TO THE COMMON LAW

     
72.   Unity of legal personality

     
73.   Pledging credit for necessaries

     
74.   Actions not barred

     
75.   Recovery for prenatal injuries

     
76.   Domicile of minor

     
77.   Parental liability

     
78.   Criminal conversation

     
79.   Enticement, harbouring

     
80.   Restitution of conjugal rights

              PART VI
GENERAL

     
81.   Order restraining harassment

     
82.   Procedure

     
83.   Extension of time

     
84.   Income Tax Act (Canada )

     
85.   Regulations

     
86.   Fees


Short title

        1. This Act may be cited as the Family Law Act.

1988 c60 s1

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Interpretation

        2. (1) In this Act

             (a)  "child" means a child born within or outside marriage and includes

                      (i)  a child adopted under the Adoption of Children Act , and

                     (ii)  a child whom a person has demonstrated a settled intention to treat as a child of his or her family, but does not include a child placed in a foster home for consideration by a person having lawful custody;

             (b)  "court" means the Trial Division or the Provincial Court ;

             (c)  "domestic contract" means a marriage contract, separation agreement, cohabitation agreement or paternity agreement;

             (d)  "parent" means the father or mother of a child by birth, whether within or outside marriage, or by virtue of the Adoption of Children Act, and includes a person who has demonstrated a settled intention to treat a child as a child of his or her family other than under an arrangement where the child is placed in a foster home for consideration by a person having lawful custody;

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

             (e)  "spouse" means either of 2 persons who

                      (i)  are married to each other,

                     (ii)  are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or

                    (iii)  have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year,

and, for the purposes of an application under this Act, includes a widow or widower.

             (2)  Notwithstanding the definition of court in this Act, in a judicial area referred to in section 43.5 of the Judicature Act, "court" means the Trial Division - Family Division.

             (3)  Parts I and II do not apply to

             (a)  persons who have received a decree absolute or judgment of divorce; or

             (b)  spouses in relation to matrimonial assets provided for in a separation agreement entered into by those spouses

before July 1, 1980 .

             (4)  Parts I and II do not affect the security that a mortgagee holds in a matrimonial home that has been the subject of a mortgage entered into with that mortgagee before July 1, 1980 and where a matrimonial home is so encumbered the interest acquired by a spouse under this Act is a 1/2 interest in the equity of redemption in the matrimonial home.

1988 c60 s2; 1997 c33 s1; 2009 c31 s7; 2009 c16 s9

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Labrador Inuit rights

      2.1 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.

2004 cL-3.1 s32

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Staying application

        3. (1) Where, in an application under this Act, it appears to the court that for the appropriate determination of the spouses' affairs it is necessary or desirable to have other matters determined 1st or simultaneously, the court may stay the application until another proceeding is brought or determined as the court considers appropriate.

             (2)  Except as provided under this Act, no person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the 1st court's opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time.

             (3)  In the Trial Division, a proceeding under this Act may be commenced by statement of claim or application.

             (4)  A provision of a domestic contract in respect of a matter that is dealt with in this Act may be incorporated in an order made under this Act.

             (5)  A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.

1988 c60 s3; 2009 c16 s9

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Mediation

        4. (1) In an application under this Act, the court may, on motion, appoint a person, whom the parties have selected, to mediate a matter that the court specifies.

             (2)  The court shall appoint only a person who

             (a)  has consented to act as mediator; and

             (b)  has agreed to file a report with the court within the period of time specified by the court.

             (3)  The mediator shall confer with the parties, and with the children where the mediator considers it appropriate to do so, and shall endeavour to obtain an agreement between the parties.

             (4)  Before entering into mediation, the parties shall agree whether,

             (a)  the mediator is to file a full report on the mediation, including anything that he or she considers relevant; or

             (b)  the mediator is to file a limited report that sets out only the agreement reached by the parties or states only that the parties did not reach agreement.

             (5)  The mediator shall file with the court a full or limited report, as the parties agree.

             (6)  A copy of the report shall be provided by the court to each of the parties, and to counsel representing the child.

             (7)  Where the parties have agreed that the mediator is to file a limited report, evidence arising from anything said, evidence of anything said or of an admission or communication made in the course of the mediation is not admissible in a proceeding, except with the consent of all parties to the proceeding in which the mediator was appointed.

             (8)  The court shall require the parties to pay the mediator's fees and expenses and shall specify in the order the amounts of the fees and expenses that each party is required to pay.

             (9)  The court may require 1 party to pay all the mediator's fees and expenses where the court is satisfied that payment would cause the other party serious financial hardship.

1988 c60 s4; 2013 c16 s25

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Purpose

        5. The purpose of Parts I and II is to reform the law with respect to matrimonial property in order to

             (a)  recognize the contribution made by each spouse to a marriage;

             (b)  give a 1/2 interest in the matrimonial home to each spouse;

             (c)  provide for the deferred sharing of most other property acquired during a marriage; and

             (d)  provide for judicial discretion in sharing business assets built up by a spouse during a marriage.

1988 c60 s5

PART I
THE MATRIMONIAL HOME

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Interpretation

        6. (1) In this Part

             (a)  "court" means the Trial Division; and

             (b)  "matrimonial home" means the dwelling and real property occupied by a person and his or her spouse as their family residence and owned by either or both of them whether their occupation occurred before, on or after July 1, 1980.

             (2)  Where property that includes a matrimonial home is used for other than residential purposes, the matrimonial home only includes that portion of the property that can reasonably be regarded as necessary for the use and enjoyment of the family residence.

             (3)  The ownership of a share or an interest in a share of a corporation entitling the owner to the occupation of a dwelling unit owned by the corporation shall be considered to be an interest in the dwelling unit for the purposes of subsection (1).

             (4)  Where a dwelling has up to 3 apartments, those apartments are considered to form part of the matrimonial home for the purpose of this Act.

             (5)  A dwelling includes a house, condominium, mobile home or trailer.

             (6)  A person and his or her spouse may have more than 1 matrimonial home.

1988 c60 s6; 2009 c16 s9

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Application of Part

        7. This Part applies to a matrimonial home located in the province notwithstanding that

             (a)  the matrimonial home was acquired by gift, settlement, inheritance or otherwise by 1 or both of the spouses prior to the marriage;

             (b)  the spouses entered into the marriage before July 1, 1980 ;

             (c)  the matrimonial home was acquired before July 1, 1980 ; or

             (d)  a proceeding to determine the rights as between spouses in respect of property has been commenced and not decided before July 1, 1980 .

1988 c60 s7

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Matrimonial home

        8. (1) Notwithstanding the manner in which the matrimonial home is held by either or both of the spouses, each spouse has a 1/2 interest in the matrimonial home owned by either or both spouses, and has the same right of use, possession and management of the matrimonial home as the other spouse has.

             (2)  Subsection (1) creates a joint tenancy with respect to the matrimonial home.

             (3)  Notwithstanding subsection (2), where spouses hold a matrimonial home as tenants in common, either before or after July 1, 1980 , that tenancy continues.

             (4)  Where title to the matrimonial home is held by 1 spouse by virtue of adverse possession or a licence or easement relates to the use and enjoyment of the matrimonial home, the period of adverse possession, licence or easement that has accrued prior to the time the home becomes a matrimonial home accrues to the spouse who acquires an interest in the matrimonial home under this Act and the period of adverse possession, licence or easement continues to run notwithstanding the effect of Parts I and II upon the title to the home.

             (5)  Notwithstanding anything contained in this Part and Part II, the joint tenancy created with respect to the matrimonial home by this section

             (a)  creates a right of survivorship in a surviving spouse; and

             (b)  operates to vest beneficial ownership in the matrimonial home in the surviving spouse without the need for the probate or the administration of an estate of the deceased spouse.

             (6)  Where the right of survivorship referred to in subsection (5) operates, the matrimonial home shall not be subject to division as a matrimonial asset under Part II.

             (7)  Parts I and II shall be considered to have come into force on July 1, 1980 .

1988 c60 s8; 1989 c11 s4

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Designation

        9. (1) Both spouses may designate, in writing, a property that is their matrimonial home and following the registration of the designation in the Registry of Deeds other property that otherwise would be a matrimonial home ceases to be so.

             (2)  Both spouses may change or cancel a designation made under subsection (1).

             (3)  A designation made under subsection (1) or change or cancellation of a designation made under subsection (2) may be registered in the Registry of Deeds.

             (4)  A designation made under subsection (1) or (2) is considered to be cancelled upon the registration of

             (a)  an order of a court under paragraph 10(d) cancelling the designation;

             (b)  proof of death of 1 of the spouses; or

             (c)  a conveyance disposing of the property designated as a matrimonial home.

             (5)  A designation made under subsection (1) or (2) is considered to be constructive notice.

             (6)  Every designation made under this section shall, before registration in the Registry of Deeds, be proved in the manner set out in the Registration of Deeds Act.

             (7)  Upon the cancellation of a designation made under subsection (2), property rights as between spouses shall be determined as if the designation had never been made.

1988 c60 s9

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Disposition

      10. A spouse shall not dispose of or mortgage an interest in a matrimonial home unless

             (a)  the other spouse consents by signing the instrument of disposition or mortgage;

             (b)  the other spouse has released all rights to the matrimonial home by a separation agreement or marriage contract;

             (c)  the disposition or mortgage is authorized by a court order; or

             (d)  the property has been released as a matrimonial home by a court order.

1988 c60 s10

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Setting aside disposition

      11. Where a spouse disposes of or mortgages an interest in a matrimonial home contrary to section 10, the transaction may be set aside by the other spouse under paragraph 14(1)(d), unless the person holding the interest or mortgage acquired it for valuable consideration, in good faith and without actual or constructive notice that the property was a matrimonial home.

1988 c60 s11

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Proof of status

      12. For the purpose of section 10, an affidavit of the person making a disposition or mortgage of property stating

             (a)  that he or she is not a spouse at the time of making the disposition or mortgage;

             (b)  that the property disposed of or mortgaged has never been the matrimonial home of the person and his or her spouse;

             (c)  that the spouse of that person has released all rights to the matrimonial home by a separation agreement, marriage contract or a designation made under section 9; or

             (d)  that, where the person is not a spouse, he or she has not made a cohabitation agreement under Part IV,

is proof that the property is not a matrimonial home, unless the person to whom the disposition or mortgage is made had actual or constructive notice to the contrary.

1988 c60 s12

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Mortgage sale

      13. (1) A person who is proceeding to realize upon a lien, mortgage or execution against a matrimonial home shall give the same notice to a spouse having an interest in the home by virtue of Parts I and II as the other spouse is entitled to.

             (2)  A spouse who has an interest in a matrimonial home has the same right of redemption and other rights that the other spouse has with respect to the property affected by a proceeding set out in subsection (1), and is entitled to a 1/2 share of the net surplus following the sale of the matrimonial home by a proceeding taken under subsection (1).

1988 c60 s13

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Court powers re disposition

      14. (1) The court may by order, on the application of a spouse or other person having an interest in property,

             (a)  determine if all or part of the property is a matrimonial home;

             (b)  authorize the disposition or mortgage of a matrimonial home where the spouse whose consent is necessary

                      (i)  cannot be found,

                     (ii)  is not capable of giving consent, or

                    (iii)  is unreasonably withholding consent, subject to the terms and conditions that the court considers desirable;

             (c)  dispense with the giving of notice under section 13;

             (d)  direct the setting aside of a disposition or mortgage of an interest in a matrimonial home and the revesting of the interest, or a part of it, upon the terms and subject to the conditions that the court considers desirable; and

             (e)  where a false affidavit is made under section 10 or where a matrimonial home or an interest in it is disposed of contrary to section 10, direct

                      (i)  the person who made the false affidavit,

                     (ii)  a person who knew at the time that the affidavit was false and after that conveyed the property, or

                    (iii)  a person who improperly disposed of a matrimonial home or an interest in it contrary to section 10,

to substitute other real property for the matrimonial home or to set aside money or security to stand in place of the matrimonial home, subject to the terms and conditions that the court considers desirable.

             (2)  The court may, on the application of a person who is affected by an order under paragraph (1)(b), discharge, vary or suspend the terms and conditions imposed in the order.

1988 c60 s14

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Court powers re possession

      15. (1) The court may by order, on the application of a spouse,

             (a)  direct that 1 spouse be given exclusive possession of a matrimonial home, or part of it, for life or for the lesser period that the court decides and, in addition, may release other property that is a matrimonial home from the application of this Part;

             (b)  direct a spouse to whom exclusive possession is given under paragraph (a) to pay the periodic or other payments to the other spouse or surviving spouse that are prescribed;

             (c)  direct that the contents of a matrimonial home that are matrimonial assets as defined in section 18, or a part of the assets, remain in the matrimonial home;

             (d)  fix the obligation to repair and maintain the matrimonial home and to pay for other liabilities arising in respect of the matrimonial home; and

             (e)  authorize the disposition or mortgage of the interest of a spouse in a matrimonial home who has not been granted exclusive possession.

             (2)  Where a surviving spouse does not reside in the matrimonial home at the time of the death of the other spouse and a child resides in that matrimonial home at that time, the court may, on the application of the child through a next friend, direct that the child, through his or her guardian, be given exclusive possession of the matrimonial home until the child reaches the age of majority, or where the child attends a post secondary institution, until the age of 24 years and make those other orders under subsection (1) that it considers appropriate.

             (3)  The court may only make an order for exclusive possession of the matrimonial home under subsection (1) or (2) where, in the opinion of the court,

             (a)  other provision for shelter is not adequate in the circumstances; or

             (b)  it is in the best interests of a child to make the order.

             (4)  Where the court is satisfied that there has been a material change in the circumstances, it may discharge, vary or suspend an order made under paragraphs (1)(a), (b), (c) and (d), or subsection (2), upon the application of a party to the original application.

1988 c60 s15

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Interim order

      16. The court may make whatever interim order that it considers necessary for the proper application of this Part, pending the bringing or disposition of an application under this Part.

1988 c60 s16

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Registration of order

      17. An order made under this Part may be registered in the Registry of Deeds, but where it is not registered, it does not affect the purchase of an interest in real property affected by the order by a person in good faith without notice of the order, or the interest in real property affected by the order obtained by a mortgagee in good faith without notice of the order.

1988 c60 s17; 1998 cP-7.1 s79; 1999 c22 s19

PART II
MATRIMONIAL ASSETS

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Definitions

      18. (1) In this Part

             (a)  "business assets" means property primarily used or held for or in connection with a commercial, business, investment or other income or profit producing purpose;

             (b)  "court" means the Trial Division; and

             (c)  "matrimonial assets" includes all real and personal property acquired by either or both spouses during the marriage, with the exception of,

                      (i)  gifts, inheritances, trusts or settlements received by 1 spouse from a person other than the other spouse and an appreciation in value of them during the marriage,

                     (ii)  personal injury awards, except the portion of the award that represents compensation for economic loss,

                    (iii)  personal effects,

                    (iv)  business assets,

                     (v)  property exempted under a marriage contract or separation agreement,

                    (vi)  family heirlooms, and

                   (vii)  real and personal property acquired after separation.

             (2)  In the case of a matrimonial home, matrimonial assets includes a matrimonial home acquired before the marriage, and notwithstanding subparagraph (1)(c)(i), includes a matrimonial home acquired by gift, settlement or inheritance.

             (3)  Where before or after July 1, 1980 property owned by a corporation would, if it were owned by a spouse, be a matrimonial asset, then shares in the corporation owned by the spouse having a market value equal to the value of the benefit the spouse has in respect of the property are matrimonial assets.

1988 c60 s18; 2009 c16 s9

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Purpose of Part

      19. The purpose of this Part is to recognize that child care, household management and financial support are the joint responsibilities of the spouses and that there is a joint contribution by each of the spouses, financial and otherwise, that entitles each spouse to an equal division of the matrimonial assets acquired during the course of the marriage.

1988 c60 s19

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Application of Part

      20. This Part applies notwithstanding that

             (a)  the spouses entered into the marriage before July 1, 1980 ;

             (b)  the matrimonial asset was acquired before July 1, 1980 ; or

             (c)  a proceeding to determine the rights as between spouses in respect of property has been commenced and not finally decided before July 1, 1980 .

1988 c60 s20

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Division of assets

      21. (1) Where

             (a)  a petition for divorce is filed;

             (b)  a marriage is declared a nullity;

             (c)  the spouses have been separated and there is no reasonable prospect of the resumption of cohabitation; or

             (d)  1 of the spouses has died,

either spouse is entitled to apply to a court to have the matrimonial assets divided in equal shares, notwithstanding the ownership of these assets, and the court may order that division.

             (2)  Rights that a surviving spouse has to the ownership or division of property under this Act are in addition to rights that the surviving spouse has as a result of the death of his or her spouse, whether that right arises on intestacy or by will.

             (3)  An application made under this section shall not be brought after the earliest of

             (a)  2 years after the day the marriage is terminated by divorce or judgment of nullity;

             (b)  6 years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; and

             (c)  1 year after the 1st spouse's death.

1988 c60 s21

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Variation of division

      22. The court may make a division of matrimonial assets that is not equal where the court is satisfied that a division of these assets in equal shares would be grossly unjust or unconscionable taking into account the following factors:

             (a)  the income, earning capacity, property and other financial resources that each of the spouses has or is likely to have in the foreseeable future;

             (b)  the financial needs, obligations and responsibilities that each of the spouses has or is likely to have in the foreseeable future;

             (c)  the standard of living enjoyed by the spouses before the breakdown of the marriage;

             (d)  the age of each party;

             (e)  the duration of the marriage;

             (f)  a physical or mental disability of either of the spouses;

             (g)  the contributions made by each of the spouses to the welfare of the family, including a contribution made by a spouse in looking after the matrimonial home or caring for the family;

             (h)  the loss of a potential benefit to a spouse by reason of a dissolution or annulment of the marriage;

              (i)  the unreasonable impoverishment or dissipation of matrimonial assets by either of the spouses;

              (j)  the length of time that the spouses have lived separate and apart from each other during the marriage; or

             (k)  the date of acquisition of each matrimonial asset.

1988 c60 s22

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Allegation of misconduct

      23. The court shall not take into account an allegation of misconduct on the part of either or both of the spouses in dealing with an application under this Part or Part I.

1988 c60 s23

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Statement of property

      24. Where an application is made under this Part, each spouse shall file with the court and serve on each other a statement, verified by affidavit, setting out the particulars of all property owned by that spouse.

1988 c60 s24

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Confidentiality of statement

      25. Where, in the opinion of the court, the public disclosure of information contained in a statement filed under section 24 would constitute a hardship to a spouse, the court may order that the statement and a cross-examination of it be treated as confidential and not form part of the public record.

1988 c60 s25

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Powers of court

      26. In an application made under section 21, the court may order

             (a)  that the title to a specified property granted to a spouse be transferred to or held in trust for that spouse for the period, or absolutely, as the court may decide;

             (b)  the partition or sale of a property;

             (c)  that payment be made out of the proceeds of a sale ordered under paragraph (b) to 1 or both spouses, and the amount of the payment;

             (d)  that a property forming part of the share of either or both spouses be transferred to or held in trust for a child to whom a spouse must provide support;

             (e)  that either or both spouses give the security, including a charge on property, that the court orders, for the performance of an order made under this section; and

             (f)  that 1 spouse pay to the other spouse the amount that is set out in the order in order to provide for the division of the property,

and may make other orders or directions that are ancillary to the application.

1988 c60 s26

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Question of title

      27. (1) A person may apply to the court to decide a question between that person and his or her spouse as to the ownership or right to possession of property, except where an application or order has been made with respect to the property under this Part or Part I.

             (2)  Where an application has been made under subsection (1) the court

             (a)  may make a declaration as to the ownership or right of possession in the property;

             (b)  may, where the property has been disposed of, order that a spouse pay compensation for the interest of the other spouse;

             (c)  may order that the property be partitioned or sold; and

             (d)  may order that either or both spouses give the security, including a charge on property, that the court orders, for the performance of an order under this section,

and may make those orders or directions that are ancillary to the application.

1988 c60 s27

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Realization of security

      28. The court may, on application, direct the sale of property charged as security under this Part.

1988 c60 s28

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Business assets

      29. Where one spouse has contributed work, money or money's worth in respect of the acquisition, management, maintenance, operation or improvement of a business asset of the other spouse, the contributing spouse may apply to the court and the court shall by order

             (a)  direct the other spouse to pay an amount that the court orders to compensate the contributing spouse; or

             (b)  award a share of the interest of the other spouse in the business asset to the contributing spouse in accordance with the contribution,

and the court shall determine and assess the contribution without regard to their spousal relationship or the fact that the acts constituting the contribution are those of a reasonable spouse in the circumstances.

2009 c31 s7

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Interim order

      30. The court may make the interim order that it considers necessary for the proper application of this Part, pending the bringing or disposition of an application under this Part.

1988 c60 s30

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Presumptions

      31. (1) The rule of law known as the presumption of advancement is abolished in respect of the ownership of property as between spouses and in its place the rule of law applying a presumption of resulting trust shall be applied in the same manner as if they were not married.

             (2)  Property, including money on deposit, held in the name of both spouses is, in the absence of evidence to the contrary, proof that each spouse is intended to have a 1/2 beneficial interest in the property on severance of the property.

             (3)  This section applies notwithstanding that the event giving rise to the presumption occurred before July 1, 1980 .

1988 c60 s31; 2009 c31 s7

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Conflict of laws

      32. (1) The division of matrimonial assets and the ownership of moveable property as between spouses, wherever situated, are governed by the internal law of the place where both spouses had their last common habitual residence, or where there is no residence, by the law of the province.

             (2)  The ownership of immoveable property as between spouses is governed by the internal law of the place where that property is situated.

             (3)  Notwithstanding subsection (2), where the law of the province governs the division of matrimonial assets, the value of the immoveable property, wherever situated, may be taken into consideration for the purposes of this Part.

1988 c60 s32

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Effect of agreement

      33. A person may enter into an agreement under this Part to vary or exclude the application of this Part and Part I.

1988 c60 s33

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Re the Wills Act

      34. An agreement, or a provision of it, entered into under this Part or Part I that has its effect on the death of 1 of the parties to it may be enforced against the estate of the deceased notwithstanding the provisions of the Wills Act.

1988 c60 s34

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Matrimonial or business assets

   34.1 (1) A notice of an order or a notice of a domestic contract in respect of matrimonial assets or business assets in the nature of personal property as defined under the Personal Property Security Act may be filed in the personal property registry established under the Personal Property Security Act and, where it is not filed, the order or domestic contract does not affect the acquisition of an interest in the personal property by a person in good faith without notice of the order or domestic contract.

             (2)  Where an order or a domestic contract relates to goods that are designated by regulations made under the Personal Property Security Act as serial numbered goods and a notice does not describe these goods by serial number, the notice is considered not to be filed under subsection (1) with respect to those goods.

1999 c22 s19

PART III
FAMILY SUPPORT

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Definitions

      35. In this Part

             (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;

             (b)  "order for support" or "order for the support of a dependant" means an order made in proceedings under section 37, 39, 46 or 47 and an order for maintenance or alimony made before May 1, 1989; and

             (c)  "partner" means either of 2 persons who have cohabited in a conjugal relationship outside of marriage

                      (i)  for a period of at least 2 years, or

                     (ii)  for a period of at least one year, where they are, together, the biological or adoptive parents of a child.

1988 c60 s35; 1997 c33 s2; 2000 c29 s1

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Obligation of spouse or partner for support

      36. Every spouse and partner has an obligation to provide support for himself or herself and for the other spouse or partner, in accordance with need, to the extent that he or she is capable of doing so.

2000 c29 s2

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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 parent's 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.

1997 c33 s3

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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 or partner in the circumstances set out in subsection (3).

1997 c33 s3; 2000 c29 s3

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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 this court considers appropriate.

1997 c33 s3

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Obligation of child to support parent

      38. Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.

1988 c60 s38

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Order for support

      39. (1) Subject to section 37, a court may, upon application, order a person to provide support for his or her dependants and determine the amount of the support.

             (2)  An application for an order for the support of a dependant may be made by the dependant or a parent of the dependant under this Part or by a person defined as a dependant under another Act of the province or under subsection (4).

             (3)  A minor who is a spouse or partner has capacity to commence, conduct and defend a proceeding under this Part without the intervention of a next friend or guardian and to give a consent required or authorized for the purpose.

             (4)  Where a dependant who is a spouse or partner, or his or her dependant child, is receiving a benefit under the Income and Employment Support Act , the minister responsible for the administration of that Act may make an application for an order for the support of a dependant.

         (4.1)  An official of the Department of Social Services may appear in Provincial Court in respect of a support application, either on behalf of the Minister of Social Services, or as agent for a person making a support application where the Department of Social Services is providing a benefit under the Social Assistance Act in respect of the support of that person.

             (5)  The court may set aside a provision for support in a domestic contract and may determine an order for support in an application under subsection (1), notwithstanding that the contract or agreement contains an express provision excluding the application of this section,

             (a)  where the provision for support or the waiver of the right to support results in circumstances that are unconscionable;

             (b)  where the provision for support or the waiver of the right to support is in respect of a person who qualifies for an allowance for support out of public money; or

             (c)  where there has been a default in the payment of support under the contract or agreement and the payment or a portion of it is outstanding when the court considers the application.

             (6)  Where an order is made under subsection (5), the order terminates the support provisions in the domestic contract or paternity agreement.

             (7)  An order for the support of a child shall

             (a)  recognize that each parent has an obligation to provide support for the child;

             (b)  recognize that the obligation of a natural or adoptive parent outweighs the obligation of a parent who is not a natural or adoptive parent; and

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

             (8)  An order for the support of a spouse or partner shall

             (a)  recognize the contribution of the spouse or partner to the relationship and the economic consequences of the relationship for the spouse or partner;

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

             (c)  make fair provision to assist the spouse or partner to become able to contribute to his or her own support; and

             (d)  relieve financial hardship,

to the extent this has not been done by orders under Parts I and II.

             (9)  In determining the amount of support in relation to need, the court shall comply with section 37 and shall consider all the circumstances of the parties, including

             (a)  the assets and means of the dependant and of the respondent and a benefit or loss of benefit under a pension plan or annuity;

             (b)  the capacity of the dependant to provide for his or her own support;

             (c)  the capacity of the respondent to provide support;

             (d)  the age and the physical and mental health of the dependant and of the respondent;

             (e)  the length of time the dependant and respondent cohabited;

             (f)  the needs of the dependant, in determining which the court may have regard to the accustomed standard of living while the parties resided together;

             (g)  the measures available for the dependant to become financially independent and the length of time and cost involved to enable the dependant to take the measures;

             (h)  the legal obligation of the respondent to provide support for another person;

              (i)  the desirability of the dependant or respondent remaining at home to care for a child;

              (j)  a contribution by 1 party to the realization of the career potential of the other;

             (k)  [Rep. by 1997 c33 s4]

              (l)  where the dependant is a spouse or partner, the effect on his or her earning capacity of the responsibilities assumed during cohabitation;

           (m)  where the dependant is a spouse or partner, whether the dependant has undertaken the care of a child who is of the age of majority and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents;

             (n)  where the dependant is a spouse or partner, whether the dependant has undertaken to assist in the continuation of a program of education for a child who is of the age of majority and unable for that reason to withdraw from the charge of his or her parents;

             (o)  where the dependant is a spouse or partner, housekeeping, child care or other domestic service performed by the dependant for the family; and

             (p)  any other legal right of the dependant to support other than out of public money.

          (10)  The obligation to provide support for a spouse or partner exists without regard to the conduct of either spouse or partner, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

1988 c60 s39; 1994 c42 s1; 1997 c33 s4; 2000 c29 s4; 2002 cI-0.1 s57

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Powers of court

      40. (1) In an application under section 39 the court may order

             (a)  an amount payable periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;

             (b)  a lump sum to be paid or held in trust;

             (c)  a specified property to be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;

             (d)  where other provision for shelter is inadequate or where it is in the best interest of a child to do so, that a spouse or partner has a right to possession of a residence to which the other spouse or partner is entitled, upon the terms and for the period that the court considers appropriate;

             (e)  that all or some of the money payable under the order be paid into court or to another appropriate person or agency for the benefit of the dependant;

             (f)  the payment of support to be made in respect of a period before the date of the order;

             (g)  the payment to the Minister of Social Services of an amount in reimbursement for a benefit or assistance referred to in section 39, including an amount in reimbursement for the benefit or assistance provided before the date of the order;

             (h)  the payment of expenses in respect of the prenatal care and birth of a child;

              (i)  that the obligation and liability for support continue after the death of the respondent and be a debt of his or her estate for the period that is fixed in the order;

              (j)  that a spouse or partner who is an insured within the meaning of the Life Insurance Act assign a policy of life insurance, where it is not otherwise assigned, to the other spouse or partner;

             (k)  that a spouse or partner who is an insured within the meaning of the Life Insurance Act designate the other spouse or partner or a child as the beneficiary irrevocably;

              (l)  that a spouse or partner pay premiums on an insurance policy which provides protection for the other spouse or partner or a child; and

           (m)  the securing of payment under the order, by a charge on property or otherwise.

             (2)  In an application under section 39, the court may make an interim or final order requiring that a spouse or partner who has an interest in a pension plan or other benefit plan designate the other spouse or partner or a child as a beneficiary under the plan and not change that designation.

             (3)  A Provincial Court judge shall only make an order under paragraphs (1)(b), (c), (j) and (k) and subsection (2) where the dependant does not have the necessities for life or to prevent the dependant from becoming a public charge and the Provincial Court judge shall not make an order under paragraphs (1)(d) and (m).

             (4)  A matter provided for in a domestic contract may be incorporated in an order made under this section.

             (5)  An order made under this section that provides that the obligation and liability for support continue after the death of the respondent is subject to a subsequent order for support out of the estate of the deceased respondent made under theFamily Relief Act.

             (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.

             (7)  An order for support is assignable to the Department of Social Services.

             (8)  In an order made under paragraph (1)(a), the court may provide that the amount payable shall be increased annually on the anniversary date of the order by the indexing factor, as defined in subsection (9), for November of the previous year.

             (9)  The indexing factor for a given month is the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada.

1988 c60 s40; 1989 c11 s4; 1997 c33 s5; 2000 c29 s5

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Object of court

      41. Where practicable, the court shall exercise its jurisdiction under this Act so as to encourage the dependant to achieve financial independence.

1988 c60 s41

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Domestic contract may be filed with court

      42. (1) A person who is a party to a domestic contract may file the contract with the Trial Division, together with the person's affidavit stating that the contract or agreement is in effect and has not been set aside or varied by a court or agreement.

             (2)  A provision for support or maintenance contained in a contract or agreement that is filed in this manner,

             (a)  may be enforced; and

             (b)  may be varied under section 47 or increased under this Act,

as if it were an order of the court where it is filed.

             (3)  Subsection 39(5) applies to a contract or agreement that is filed under this section.

             (4)  Subsection (1) and paragraph (2)(a) apply despite an agreement to the contrary.

             (5)  Subsections (1) and (2) also apply to contracts and agreements made before May 1, 1989 .

             (6)  Paragraph (2)(a) also applies to arrears accrued before May 1, 1989 .

1988 c60 s42; 2009 c16 s9

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Effect of divorce proceedings

      43. (1) Where a proceeding for divorce is commenced under the Divorce Act, 1985 (Canada ), an application for support under this Act that has not been determined is stayed except by leave of the court.

             (2)  The court that deals with a divorce proceeding under the Divorce Act, 1985 (Canada) may determine the amount of arrears owing under an order for support made under this Part and may make an order respecting that amount at the same time as it makes an order under the Divorce Act, 1985 (Canada).

             (3)  Where a marriage is terminated by divorce or judgment of nullity and the question of support is not adjudicated in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms.

1988 c60 s43

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Absconding respondent or debtor

      44. Where an application is made under section 39 and the judge is satisfied that the respondent or debtor is about to leave the province and that there are reasonable grounds for believing that the respondent intends to evade his or her responsibilities under this Part, the judge may issue a warrant in the form prescribed by the rules of the court for the arrest of the respondent or debtor.

1988 c60 s44

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Restraining orders

      45. In or pending an application under section 39 or appearance to a notice under section 51, or where an order for support has been made, the court may make an interim or final order that it considers necessary for restraining the disposition or wasting of assets that would impair or defeat the claim or order for the payment of support.

1988 c60 s45

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Domestic contract or paternity agreement

      46. A person who is obligated to pay support under a domestic contract referred to in Part IV may apply to the court to set aside the provision for support in the contract, and where the court is satisfied that,

             (a)  requiring the person to continue to pay support under the terms of the contract or agreement would be unconscionable; or

             (b)  the person obligated under the contract or agreement qualifies for support out of public money,

the court may set aside the provision for support in the contract or agreement and determine and order support in accordance with this Act in the same manner and subject to the same considerations that apply in the case of an application made under section 39, and where an order is made under this section the order terminates the support provisions in the contract or agreement.

1988 c60 s46

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Review and variation of orders

      47. (1) Where an order for support has been made or confirmed and where the court is satisfied,

             (a)  that there has been a material change in the circumstances of the dependant or the respondent;

             (b)  that the dependant has not taken reasonable steps that are available to improve self-sufficiency;

             (c)  that, where the obligation to provide support arises under section 36, the dependant has entered into a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship; or

             (d)  evidence has become available that was not available on the previous hearing,

the court may, upon the application of a person named in the order or the personal representative of the person named in the order or a person referred to in subsection 39(4),

             (e)  discharge, vary or suspend a term of the order, prospectively or retroactively;

             (f)  relieve the respondent from the payment of part or all of the arrears or interest due on it;

             (g)  order that the assignment of a policy of life insurance to a spouse or partner be revoked;

             (h)  order that an irrevocable designation of a beneficiary under a policy of life insurance be revoked; and

              (i)  make another order under section 40 that the court considers appropriate in the circumstances referred to in section 39.

             (2)  An application under subsection (1) shall be made to the court that made the order or to the same court in another judicial centre in the province.

             (3)  No application under subsection (1) shall be made within 6 months after the making of the order for support or the disposition of another application under subsection (1) in respect of the same order, except by leave of the court.

             (4)  This section shall also apply to orders for maintenance or alimony made before May 1, 1989 or in a proceeding commenced before May 1, 1989 .

             (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.

1988 c60 s47; 1990 c62 s12; 1997 c33 s6; 2000 c29 s6

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Financial statement

      48. (1) Where an application is made under section 39, 46 or 47, each party shall file with the court and serve upon the other a financial statement in the manner and form prescribed by regulation and the rules of the court.

             (2)  Where the parties consent in writing, the financial statement mentioned in subsection (1) need not be filed and served.

             (3)  Where, in the opinion of the court, the public disclosure of information required to be contained in a statement under subsection (1) would be a hardship on the person giving the statement, the court may, before the hearing, order that the statement and all examination upon it before the hearing be treated as confidential and not form part of the public record.

1988 c60 s48; 1997 c33 s7

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Access to records

      49. (1) Where it appears to a court that,

             (a)  for the purpose of bringing an application under this Act;

             (b)  for the purpose of the enforcement of an order for support, alimony or maintenance enforceable in the province,

the proposed applicant or person in whose favour the order is made has need to learn or confirm the name and address of the employer or the whereabouts of the proposed respondent or person against whom the order is made, the court may order a person or public agency to provide the court with the particulars of it as they are contained in the records in its custody or control and the person or agency shall provide to the court the particulars that it is able to provide.

             (2)  Notwithstanding another Act or law restricting the disclosure of information, a person or public agency, including the Crown, that receives a demand under subsection (1) shall provide the demanded information that is contained in its records.

1988 c60 s49

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Order for return by employer

      50. (1) In an application under section 39, 46 or 47, the court may order the employer of a party to the application, or the debtor, to make a written return to the court showing the wages or other remuneration resulting from the employment of the party or debtor over the preceding 12 months.

             (2)  A return made under subsection (1) purporting to be signed by the employer may be received in evidence as, in the absence of evidence to the contrary, proof of its contents.

             (3)  Notwithstanding another Act or law restricting the disclosure of information, a person, corporation or public agency, including the Crown, that receives a demand under subsection (1) shall provide the demanded information that is contained in its records.

1988 c60 s50

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Examination of debtor

      51. (1) Where there is default in payment under an order for support, alimony or maintenance, a clerk of the court may require the debtor, upon notice,

             (a)  to file a financial statement referred to in section 48;

             (b)  to submit to an examination as to assets and means; and

             (c)  to appear before the court to explain the default.

             (2)  Where the debtor fails to appear as required after being served with a notice, or where the court is satisfied that the debtor cannot be served or intends to leave the province without appearing as required after being served, the court giving the notice may issue a warrant for the arrest of the debtor for the purpose of compelling attendance.

1988 c60 s51

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Penalty for default

      52. (1) Where the debtor fails to satisfy the court that the default is owing to his or her inability to pay and where the court is satisfied that all other practicable means that are available under this Act for enforcing payment have been exhausted, the court may

             (a)  order imprisonment for a term of not more than 90 days to be served intermittently or as ordered by the court; or

             (b)  make an order that may be made upon summary conviction for an offence that is punishable by imprisonment.

             (2)  The order for imprisonment under subsection (1) may be made conditional upon default in the performance of a condition set out in the order.

1988 c60 s52

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Attachment of wages

      53. (1) Where the court considers it appropriate in a proceeding under section 51, the court may make an attachment order directing the employer or pension trustee of the debtor to deduct from a remuneration of the debtor due at the time the order is served on the employer, or after due or accruing due, the amount including court and execution costs that is named in the order and to pay the amounts deducted into court.

             (2)  Where an application is made under section 47 the court may discharge, vary or suspend a term of an order made under subsection (1).

             (3)  An order under subsection (1) has priority over another seizure or attachment of wages or pension arising before or after the service of the order.

1988 c60 s53

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Security for payment

      54. Where the court considers it appropriate in a proceeding under section 51, the court may order the debtor to give security for the payment of support and court and execution costs or may charge a property of the debtor with payment of an amount for the provision of necessaries or preventing the dependant from becoming a public charge.

1988 c60 s54

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Attachment for support

      55. (1) Where a court orders security for the payment of support and court or execution costs under section 54 or charges property as security, the court may, upon application and notice to all persons having an interest in the property, direct its sale for the purpose of realizing the security or charge.

             (2)  Where an application is made under subsection (1), the court may make the interim order that the court considers appropriate.

1988 c60 s55

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Enforcement of order

      56. An order for support under this Part may be enforced under the Support Orders Enforcement Act, 2006.

1988 c60 s56; 2006 cS-31.1 s81

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Termination of support order on death

      57. Unless an order for support otherwise provides, it terminates upon the death of the person having the obligation to provide support, and the amount under the order due and unpaid at the time of death is a debt of his or her estate.

1988 c60 s57

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Closed hearings

      58. The court may exclude the public from a hearing, or a part of it, where, in the opinion of the presiding judge, the desirability of protecting against the consequences of possible disclosure of intimate financial or personal matters outweighs the desirability of holding the hearing in public and the court may by order prohibit the publication of a matter connected with the application or given in evidence at the hearing.

1988 c60 s58

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Right of appeal

      59. (1) An appeal lies from an order of 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

             (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 c60 s59; 2009 c16 s9

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Limitation

      60. (1) No action or application for an order for the support of a spouse or partner shall first be brought under this Part after 2 years from the day the spouses or partners separate.

             (2)  Where the spouses or partners provided for support on separation in a domestic contract, subsection (1) does not apply and no action or application for an order for the support of a spouse or partner shall be brought after default under the contract has subsisted for 2 years.

2000 c29 s7

PART IV
DOMESTIC CONTRACTS

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Definitions

      61. In this Part

             (a)  "cohabitation agreement" means an agreement entered into under section 63;

             (b)  "marriage contract" means an agreement entered into under section 62;

             (c)  "paternity agreement" means an agreement entered into under section 69; and

             (d)  "separation agreement" means an agreement entered into under section 64.

1988 c60 s61

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Marriage contracts

      62. Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including

             (a)  ownership in or division of property;

             (b)  support obligations;

             (c)  the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

             (d)  other matters in the settlement of their affairs.

1988 c60 s62; 2009 c31 s7

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Cohabitation agreements

      63. (1) Two persons who are cohabiting or intend to cohabit in a conjugal relationship and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including

             (a)  ownership in or division of property;

             (b)  support obligations;

             (c)  the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

             (d)  other matters in the settlement of their affairs.

             (2)  Where the parties to a cohabitation agreement marry each other, the agreement shall be considered to be a marriage contract.

             (3)  A cohabitation agreement may adopt the provisions of this Act and upon the adoption this Act applies to the parties.

1988 c60 s63; 2000 c29 s8

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Separation agreements

      64. Two persons who have cohabited in a conjugal relationship and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including

             (a)  ownership in or division of property;

             (b)  support obligations;

             (c)  the right to direct the education and moral training of their children;

             (d)  the right to custody of and access to their children;

             (e)  the apportionment of their liability for debts; and

             (f)  other matters in the settlement of their affairs.

2000 c29 s9; 2004 c47 s15

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Form of contract

      65. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

             (2)  A minor has capacity to enter into a domestic contract, subject to the approval of the court, which may be given before or after the minor enters into the contract.

             (3)  Where a person is mentally incompetent, the person's guardian, if not his or her spouse or a party to the contract, may enter into a domestic contract or give a waiver or consent under this Act on the mentally incompetent person's behalf, subject to the prior approval of the court.

             (4)  Where the guardian is the spouse of the mentally incompetent person or a party to the domestic contract, the public trustee shall act in the place of the guardian under subsection (1).

             (5)  A domestic contract may be filed with the Trial Division and those provisions of the domestic contract that are referred to in this Part may be enforced as an order of the court under this Act, the Children's Law Act or the Support Orders Enforcement Act, 2006.

1988 c60 s65; 2000 c29 s10; 2006 cS-31.1 s81; 2009 c16 s9; 2013 c16 s25

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Contracts subject to best interests of child

      66. (1) In the determination of a matter respecting the support, education, moral training or custody of or access to a child, the court may disregard a provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

             (2)  A provision in a domestic contract to take effect on separation where a right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another.

             (3)  A provision in a domestic contract made before May 1, 1989 where a right of a party is dependent upon remaining chaste shall be given effect as a contingency upon marriage or cohabitation with another.

             (4)  A court may, on application, set aside a domestic contract or a provision in it

             (a)  where a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

             (b)  where a party did not understand the nature or consequences of the domestic contract; or

             (c)  otherwise in accordance with the law of contract.

             (5)  Subsection (4) applies despite an agreement to the contrary.

1988 c60 s66

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Rights of donors of gifts

      67. Where a domestic contract provides that specific gifts made to 1 or both parties may not be disposed of or encumbered without the consent of the donor, the donor shall be considered to be a party to the contract for the purpose of enforcement or amendment of the provision.

1988 c60 s67

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Contracts made outside the province

      68. The manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that

             (a)  a contract of which the proper law is that of a jurisdiction other than the province is also valid and enforceable in the province where entered into in accordance with the province's internal law;

             (b)  subsection 39(5) and section 66 apply in the province to contracts for which the proper law is that of a jurisdiction other than the province; and

             (c)  a provision in a marriage contract or cohabitation agreement respecting the right to custody of or access to children is not enforceable in the province.

1988 c60 s68

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Paternity agreements

      69. (1) Where 2 persons who are not spouses enter into an agreement for

             (a)  the payment of the expenses of a child's prenatal care and birth;

             (b)  support of a child; or

             (c)  funeral expenses of the child or mother,

on the application of a party, or a manager appointed under the Children and Youth Care and Protection Act , to the court, the court may incorporate the agreement in an order, and Part III applies to the order in the same manner as if it were an order made under that Part.

             (2)  Where an application is made under subsection (1) and a judge of the court is satisfied that the respondent is about to leave the province and that there are reasonable grounds to believe that the respondent intends to evade his or her responsibilities under the agreement, the judge may issue a warrant in the form prescribed by the rules of the court for the respondent's arrest.

             (3)  A minor has capacity to enter into an agreement under subsection (1) that is approved by the court, which may be given before or after the minor enters into the agreement.

             (4)  This section applies to paternity agreements that were made before May 1, 1989 .

1988 c60 s69; 1998 cC-12.1 s80; 2009 c31 s7; 2010 cC-12.2 s85

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Application of Act to existing contracts

      70. (1) A domestic contract validly made before July 1, 1980 shall be considered to be a domestic contract for the purpose of this Act.

             (2)  Where a domestic contract was entered into before July 1, 1980 and the contract or a part would have been valid where entered into on or after that day, the contract or part is not invalid for the reason only that it was entered into before that day.

             (3)  Where property is transferred under an agreement or understanding reached before July 1, 1980 between spouses who are living separate and apart, the transfer is effective as if made under a domestic contract.

1988 c60 s70

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Death of spouse

      71. (1) An executor or administrator of a deceased spouse may enter into an agreement with the surviving spouse as to the ownership or division of property under this Act.

             (2)  Where an executor or administrator of a deceased spouse is the surviving spouse, the public trustee may act in the place of the executor or administrator under subsection (1).

1988 c60 s70.1; 2013 c16 s25

PART V
AMENDMENTS TO THE COMMON LAW

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Unity of legal personality

      72. (1) For the purpose of the law of the province, a married person has a legal personality that is independent, separate and distinct from that of his or her spouse.

             (2)  A married person has and shall be accorded legal capacity for all purposes and in all respects as if he or she were an unmarried person and has the same right of action in tort against his or her spouse as if they were not married.

             (3)  The purpose of subsections (1) and (2) is to make the same law apply, and apply equally, to married men and married women and to remove any difference in it resulting from a common law rule or doctrine.

1988 c60 s71

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Pledging credit for necessaries

      73. (1) During cohabitation, a spouse has authority to render himself or herself and his or her spouse jointly and individually liable to a 3rd party for necessaries of life, except where the spouse has notified the 3rd party that he or she has withdrawn the authority.

             (2)  Where a person is entitled to recover against a minor in respect of the provision of necessaries for the minor, each parent who has an obligation to support the minor is liable jointly and individually with the minor.

             (3)  Where persons are jointly and individually liable with each other under this section, their liability to each other shall be determined in accordance with their obligation to provide support.

             (4)  The provisions of this section apply in place of the rules of common law by which a wife may pledge the credit of her husband.

1988 c60 s72

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Actions not barred

      74. No person is barred from bringing an action or other proceeding against another for the reason only that they are parent and child.

1988 c60 s73

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Recovery for prenatal injuries

      75. No person is disentitled from recovering damages in respect of injuries for the reason only that the injuries were incurred before his or her birth.

1988 c60 s74

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Domicile of minor

      76. The domicile of a person who is a minor is,

             (a)  where the minor habitually resides with both parents and the parents have a common domicile, that domicile;

             (b)  where the minor habitually resides with 1 parent only, that parent's domicile;

             (c)  where the minor resides with another person who has lawful custody of him or her, that person's domicile; or

             (d)  where the minor's domicile cannot be determined under paragraph (a), (b) or (c), the jurisdiction with which the minor has the closest connection.

1988 c60 s75

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Parental liability

      77. In an action against a parent for damage to property or for personal injury or death caused by the fault or neglect of a child who is a minor, the onus of establishing that the parent exercised reasonable supervision and control over the child rests with the parent.

1988 c60 s76

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Criminal conversation

      78. No proceeding shall be brought for criminal conversation or for damages resulting from criminal conversation or from adultery.

1989 c11 s2

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Enticement, harbouring

      79. No proceeding shall be brought by a married person for the enticement or harbouring of the spouse of that person or for damages resulting from enticement or harbouring.

1989 c11 s2

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Restitution of conjugal rights

      80. No proceeding shall be brought by a married person for the restitution of conjugal rights.

1989 c11 s2

PART VI
GENERAL

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Order restraining harassment

      81. (1) Upon application, a court may make an order restraining the spouse of the applicant from molesting, annoying or harassing the applicant or children in the lawful custody of the applicant, or from communicating with the applicant or children, except as the order provides, and may require the spouse of the applicant to enter into the recognizance that the court considers appropriate.

             (2)  Where an application is made under subsection (1), the court may make the interim order that the court considers appropriate.

             (3)  The Trial Division may make an order under this section giving exclusive possession of the matrimonial home to 1 spouse, whether the home is owned or leased by 1 or both spouses.

             (4)  An order under subsection (3) may be an interim order pending the resolution of the issue of the division of the matrimonial property.

1988 c60 s77; 1989 c11 s4; 2009 c16 s9

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Procedure

      82. (1) Matters under this Act which are heard in the Trial Division may be governed by the Divorce Rules of the Supreme Court of Newfoundland and Labrador or the Rules of the Supreme Court, 1986 , with the necessary changes.

             (2)  The procedure in the Provincial Court shall be governed by rules made under the Provincial Court Act, 1991 .

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

1988 c60 s78; 1989 c11 s4; 1998 c30 s2; 2001 cN-3.1 s2; 2009 c16 s9

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Extension of time

      83. The court may extend time prescribed by this Act where the court is satisfied that

             (a)  there are reasonable grounds for relief;

             (b)  relief is unavailable because of delay that has been incurred in good faith; and

             (c)  no substantial prejudice or hardship will result to a person affected by reason of the delay.

1988 c60 s79

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Income Tax Act (Canada )

      84. For the purposes of the Income Tax Act (Canada ) a spouse includes a person who is required to make periodic payments in respect of support under a written agreement or a support order.

1988 c60 s80

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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.

1997 c33 s8

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Fees

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

2001 c42 s14