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BILL NO. 8


Government Bill


6th Session, 56th General Assembly

Nova Scotia

46 Elizabeth II, 1997





An Act to Amend Chapter 160

of the Revised Statutes, 1989,

the Family Maintenance Act






The Honourable Alan E. Mitchell

Minister of Justice








Halifax

Printed by Queens Printer for Nova Scotia



Explanatory Notes





Clause 1 adds a definition of "Guidelines".





Clause 2


(a) incorporates the spousal support provisions contained in recent amendments to the Divorce Act (Canada); and


(b) provides that, where the court is considering an application for child maintenance and an application for spousal maintenance, the court shall give priority to the application for child maintenance.













Clause 3 provides that when determining whether to order a person to pay maintenance to that person's spouse and the amount of any maintenance, the court shall consider the ability to pay of the spouse who is obliged to pay maintenance having regard to that spouse's obligation to pay child maintenance in accordance with the Guidelines.


Clause 4 provides that, upon application, the court may make an order, including an interim order, requiring a parent or guardian to pay maintenance for a dependent child and, when determining the amount of maintenance to be paid, the court shall do so in accordance with the Guidelines.






















Clause 5 permits a judge to make a consent order without the necessity of a hearing.


Clause 6 permits a representative of the Department of Community Services to appear and be heard in court where an application is made to grant, vary, rescind or suspend an award of maintenance and the person to whom the action relates is in receipt of benefits pursuant to the Family Benefits Act or assistance pursuant to the Social Assistance Act.









Clause 7 requires the applicant and the respondent to file, prior to the hearing of an application for maintenance,


(a) in the case of an application for spousal maintenance, a statement of income and expenses and such other documents as required by the court, the regulations or rules of court; or


(b) in the case of an application for child maintenance, the information required by the Guidelines, the court or rules of court.




Clause 8 enables the court or a court officer to request information that relates to the applicant or respondent.






















Clause 9 provides that an order for the payment of maintenance shall specify


(a) a breakdown of the amount of maintenance as between spousal and child maintenance;


(b) the names and birth dates of the children, if child maintenance is ordered; and


(c) such other information as prescribed by the Guidelines.


Clause 10 enables the court to make an order varying, rescinding or suspending a maintenance order or a custody or access order.






Clause 11 provides that a person who fails to comply with an order made pursuant to the Family Maintenance Act may be required to appear in court to explain the failure to comply.









Clause 12 allows a court officer, in addition to the court, to request from an individual, corporation or entity information concerning the whereabouts of the proposed respondent.






Clause 13 adds to the regulation-making authority of the Governor in Council.




















Clause 14 provides that this Act comes into force on proclamation.


An Act to Amend Chapter 160

of the Revised Statutes, 1989,

the Family Maintenance Act



Be it enacted by the Governor and Assembly as follows:


1 Section 2 of Chapter 160 of the Revised Statutes, 1989, the Family Maintenance Act, is amended by adding immediately after clause (g) the following clause:


(ga) "Guidelines" means the Child Maintenance Guidelines adopted pursuant to the regulations;


2 Section 3 of Chapter 160 is repealed and the following Sections substituted:


3 (1) The court may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the maintenance of the other spouse.


(2) Where an application is made pursuant to subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the maintenance of the other spouse, pending the determination of the application under subsection (1).


(3) The court may make an order pursuant to subsection (1) or an interim order pursuant to subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as the court thinks fit and just.


3A (1) Where the court is considering an application for a child maintenance order and an application for a spousal maintenance order, the court shall give priority to child maintenance in determining the applications.


(2) Where the amount of a spousal maintenance order is less than it otherwise would have been as a result of giving priority to child maintenance, any subsequent reduction or termination of that child maintenance constitutes a change of circumstances for the purposes of an application for a variation order in respect of the spousal maintenance order.


3 Clause 4(l) of Chapter 160 is amended by adding "having regard to that spouse's obligation to pay child maintenance in accordance with the Guidelines" immediately after "maintenance" in the second line.


4 Sections 9 and 10 of Chapter 160 are repealed and the following Sections substituted:


9 Upon application, a court may make an order, including an interim order, requiring a parent or guardian to pay maintenance for a dependent child.


10 (1) When determining the amount of maintenance to be paid for a dependent child, or a child of unmarried parents pursuant to Section 11, the court shall do so in accordance with the Guidelines.


(2) The court may make an order pursuant to subsection (1), including an interim order, for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as the court thinks fit and just.


(3) A court may award an amount that is different from the amount that would be determined in accordance with the Guidelines if the court is satisfied that


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


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


(4) Where the court awards, pursuant to subsection (3), an amount that is different from the amount that would be determined in accordance with the Guidelines, the court shall record its reasons for doing so.


(5) Notwithstanding subsection (1), a court may award an amount that is different from the amount that would be determined in accordance with the Guidelines on the consent of both spouses or parents if satisfied that reasonable arrangements have been made for the maintenance of the child to whom the order relates.


(6) For the purpose of subsection (5), in determining whether reasonable arrangements have been made for the maintenance of a child, the court shall have regard to the Guidelines, but the court shall not consider the arrangements to be unreasonable solely because the amount of maintenance agreed to is not the same as the amount that would otherwise have been determined in accordance with the Guidelines.


5 Subsection 11(1) of Chapter 160 is amended by striking out "the hearing of an" in the first line.


6 Section 23 of Chapter 160, as amended by Chapter 6 of the Acts of 1994-95, is further amended by adding immediately after subsection (3) the following subsection:


(4) Where


(a) an application is made pursuant to this Act to grant, vary, rescind or suspend an award of maintenance; and


(b) a party to the application is in receipt of benefits pursuant to the Family Benefits Act or assistance pursuant to the Social Assistance Act,


a representative of the Department of Community Services may be notified of the application and may appear and be heard in court in respect of the matter.


7 Subsection 29(1) of Chapter 160 is repealed and the following subsection substituted:


(1) Upon application for maintenance under this Act, the applicant and the respondent shall file


(a) in the case of an application for spousal maintenance, a statement of income and expenses and such other documents as required by the court, the regulations or rules of court; or


(b) in the case of an application for child maintenance, the information required by the Guidelines, the court or the rules of court.


8 Chapter 160 is further amended by adding immediately after Section 29 the following Section:


29A (1) Upon application for maintenance under this Act in those circumstances prescribed by regulation, including a variation order or a review, the court or a court officer may request a person, including the applicant or respondent, a corporation or public body, including Her Majesty, to provide information respecting


(a) the wages, salary or other remuneration;


(b) sources of income;


(c) the assets or liabilities;


(d) the financial status;


(e) copies of income tax returns;


(f) changes in circumstances that affect the amount of maintenance to be paid under the order;


(g) the location, address and place of employment;


(h) the location, address and place of residence,


of the applicant or respondent and including


(i) financial statements of a corporation of which the applicant or respondent is a shareholder, officer or director; and


(j) such other information as required by the court, a court officer, the regulations or rules made pursuant to the Family Court Act,


that is within the knowledge of, or shown on a record in the possession or control of, the person, corporation or public body, including Her Majesty.


(2) A person, including the applicant or respondent, a corporation or a public body, including Her Majesty, that receives a request for information shall provide it within fourteen days of the day on which the request is received.


(3) Where it appears that a court officer has been refused information after making a request pursuant to subsection (1), the court may order a person, including the applicant or respondent, a corporation or a public body, including Her Majesty, to provide the court officer with any of the information prescribed in subsection (1).


(4) Where the court officer obtains an order pursuant to subsection (3), the court may award costs.


(5) This Section applies notwithstanding any other Act or regulation and notwithstanding any common law rule of confidentiality, except solicitor-client privilege.


(6) No action lies against a person who provides information in accordance with this Section.


(7) Any person, including the applicant or respondent, a corporation or public body, including a servant or agent of Her Majesty, who knowingly withholds, misleads or gives false information to the court or a court officer or in response to an order of the court pursuant to this Section is guilty of an offence.


9 Section 34 of Chapter 160 is amended by


(a) striking out "and" immediately after clause (b);


(b) striking out the period at the end of clause (c) and substituting a semicolon; and


(c) adding the following clauses:


(d) a breakdown of the amount as between spousal and child maintenance;


(e) the names and birth dates of the children, if child maintenance is ordered; and


(f) such other information as prescribed by the Guidelines or rules of court.


10 Section 37 of Chapter 160 is repealed and the following Section substituted:


37 (1) The court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenance order or an order respecting custody and access where there has been a change in circumstances since the making of the order or the last variation order.


(2) When making a variation order with respect to child maintenance, the court shall apply Section 10.


11 Section 41 of Chapter 160 is repealed and the following Section substituted:


41 (1) Where it is made to appear under oath that a person has failed to comply with an order pursuant to this Act, the court may require the person to appear to explain the failure to comply or a party to the order may make an application to bring the matter before the court for determination.


(2) In an application pursuant to subsection (1), the court shall determine the issue and may make any additional order the court deems necessary to ensure the order of the court is complied with, including an order for contempt which may include imprisonment continuously or intermittently for not more than six months.


(3) Nothing in this Section affects the application of the Maintenance Enforcement Act where a party under a maintenance order has failed to comply with that order.


12 Subsection 54(1) of Chapter 160 is repealed and the following subsection substituted:


(1) Where it appears to the court or a court officer that, for the purpose of a proceeding pursuant to this Act it is necessary to learn or confirm the whereabouts of the proposed respondent or person against whom the order is made, the court or court officer may order an individual, corporation or entity, including a public agency, to provide particulars of the address contained in records in its custody and the individual, corporation or entity shall provide whatever particulars it is able to provide.


13 Subsection 55(1) of Chapter 160 is amended by


(a) adding immediately after clause (a) the following clauses:


(aa) respecting the way in which the amount of an order for child maintenance is to be determined;


(ab) respecting the circumstances in which discretion may be exercised in the making of an order for child maintenance;


(ac) authorizing a court to require that the amount payable under an order for child maintenance be paid in periodic payments, in a lump sum or in a lump sum and periodic payments;


(ad) authorizing a court to require that the amount payable under an order for child maintenance be paid or secured, or paid and secured, in the manner specified in the order;


(ae) respecting the recalculation at prescribed intervals of the amount payable under orders for child maintenance;


(af) respecting the circumstances that give rise to the making of a variation order in respect of a child maintenance order;


(ag) respecting the determination of income for the purpose of the application of the Guidelines;


(ah) authorizing a court to impute income for the purpose of the application of the Guidelines;


(ai) respecting the production of income or financial information from an individual, corporation or entity and providing for sanctions when that information is not provided;


and


(b) adding immediately after clause (d) the following clauses:


(da) respecting the disclosure of financial information;


(db) respecting costs and fees for services pursuant to this Act;


(dc) respecting mediation and alternate dispute-resolution mechanisms;


14 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.

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