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The Public Trustee Amendment, Trustee Amendment and Child and Family Services Amendment Act

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S.M. 1992, c. 29

The Public Trustee Amendment, Trustee Amendment and Child and Family Services Amendment Act

(Assented to June 24, 1992)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

THE PUBLIC TRUSTEE ACT

C.C.S.M. c. P275 amended

1           The Public Trustee Act is amended by this Act.

2           Subsection 1(2) of the English version is amended by striking out "his" and substituting "the".

3(1)        Subsection 2(2) is repealed and the following is substituted:

Litigation guardian of infant

2(2)        The Public Trustee is, in the capacity of official guardian, the litigation guardian of every infant except an infant who has a litigation guardian authorized to act for him or her.

3(2)        Subsection 2(3) is amended by striking out "next friend or guardian ad litem" and substituting "litigation guardian".

4(1)        Subsection 3(1) is amended

(a) by striking out "next friend or guardian" wherever it appears and substituting "litigation guardian"; and

(b) in the English version, by striking out "on his behalf" and substituting "on behalf of the infant".

4(2)        Subsection 3(3) of the English version is amended by striking out "him" and substituting "the Public Trustee".

4(3)        Subsection 3(4) is amended by striking out "next friend" and substituting "litigation guardian".

5(1)        Subsection 4(1) is amended by adding ", subject to subsection (5.1)," after "the estate and".

5(2)        Subsection 4(5) is amended by striking out ", when required by this section, paid his fee" and substituting "paid any fee prescribed by regulation".

5(3)        The following is added after subsection 4(5):

Discharge proceeding under Real Property Act

4(5.1)       Upon the communication of a recommendation required under subsection (5) in respect of a proceeding commenced under clause (1)(b), the Public Trustee discharges the rights, authority and responsibility imposed upon the Public Trustee under subsection (1).

5(4)        Subsection 4(7) of the English version is amended by adding "or her" after "his".

5(5)        Subsection 4(8) is amended by striking out "shall pay those costs to the Public Trustee and may add them to his own" and substituting ", on paying the costs to the Public Trustee, may add them to his or her own costs".

6           The section heading preceding section 5 is repealed and "Summary administration of small estates" is substituted.

7           Clause 6(1)(a) is amended by striking out "next friend or guardian ad litem" and substituting "litigation guardian".

8           Section 7 is repealed.

9           Section 8 of the English version is amended by adding "or her" after "him".

10          Section 9 of the English version is amended

(a) by striking out "his consent" and substituting "the consent of the Public Trustee"; and

(b) by striking out "he" and substituting "the Public Trustee".

11          Section 10 of the English version is amended by striking out "him" and substituting "the Public Trustee".

12(1)       Subsection 11(1) of the English version is amended

(a) by striking out "public trustee" and substituting "Public Trustee"; and

(b) in the English version by striking out "moneys in his hands" and substituting "money in the hands of the Public Trustee".

12(2)       Subsection 11(4) is amended

(a) by striking out ", in his discretion,"; and

(b) in the English version, by striking out "he may deem" and substituting "the Public Trustee considers".

13          Section 12 of the English version is amended

(a) by adding "or her" after "his"; and

(b) by striking out "he" and substituting "the Public Trustee".

14(1)       Subsection 14(1) is repealed and the following is substituted:

Compensation for Public Trustee

14(1)       The Public Trustee is entitled to and may claim such compensation and expenses for administering an estate or trust as are or may be allowed to a private trustee, and may from time to time during the administration deduct compensation from and out of the estate or trust for work completed and expenses incurred.

14(2)       Subsection 14(2) is amended

(a) in the English version, by striking out "by him" and substituting "by the Public Trustee"; and

(b) by striking out "of his office".

14(3)       The following is added after subsection 14(2):

Public Trustee may be awarded costs

14(3)       The Court of Queen's Bench may award costs to the Public Trustee in any action or proceeding taken by or against the Public Trustee in which the court considers the attendance of the Public Trustee to be necessary or advisable, and the court may direct the costs to be paid to the Public Trustee on a solicitor and client basis.

Public Trustee not liable for costs

14(4)       Where the defence conducted by the Public Trustee as litigation guardian or litigation administrator in an action, proceeding or other matter in the Court of Queen's Bench is not successful, and the court finds that the Public Trustee has acted reasonably and in good faith, the court shall not award costs against the Public Trustee.

15          Subsection 15(1) of the English version is amended by striking out "his" and substituting "the".

16          Section 16 of the English version is amended

(a) by adding "or she" after "he"; and

(b) by striking out "his staff" and substituting "the staff of the Public Trustee".

17          Section 17 of the English version is amended

(a) by striking out "his findings" and substituting "his or her findings"; and

(b) by striking out "his report" and substituting "the report".

18          Subsection 18(1) is amended by striking out "any officer in the office of the Public Trustee" and substituting "any person".

19          Section 19 is amended

(a) in the English version, by striking out "his audit" and substituting "the audit"; and

(b) by striking out "his operations on that" and substituting "the operations of the office of the Public Trustee in the".

20          Clause 20(e) of the English version is amended by striking out "he deems" and substituting "he or she considers".

THE TRUSTEE ACT

C.C.S.M. c. T160 amended

21          The Trustee Act is amended by this Act.

22(1)       Subsection 76(1) is repealed and the following is substituted:

Definitions

76(1)       In this section,

"interested person" means a person who has a financial interest in a common trust fund, and includes the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act and the member of the Executive Council charged by the Lieutenant Governor in Council with administration of Part XXIV (Trust and Loan Corporations) of The Corporations Act; («intéressé»)

"trust corporation" means a trust corporation authorized to carry on business as such within the province. («corporation de fiducie»)

22(2)       Subsection 76(4) is amended

(a) in clause (a), by striking out "and operation" and substituting ", operation and termination";

(b) in the English version, by striking out "and" at the end of clause (c);

(c) by repealing clause (d) and substituting the following:

(d) the form in which accounts are to be filed in court for the purpose of passing accounts under this section;

(d) by adding the following after clause (d):

(e) the service and publication of a notice under subsection (8); and

(f) information to be served with a notice under subsection (8).

22(3)       Subsection 76(5) is repealed and the following is substituted:

Passing of accounts in court

76(5)       A trust corporation may at any time file and pass accounts in the court relating to its dealings with respect to a common trust fund and, subject to this section, the court has the same duties and powers in respect of the accounts as it has in respect of the accounts of an executor.

Interested person may apply to court

76(5.1)     On the application of an interested person, the court may, subject to subsection (5.2), order a trust corporation to pass accounts in the court relating to its dealings with respect to a common trust fund, and where the court so orders it has, subject to this section, the same powers and duties in respect of the accounts as it has in respect of the accounts of an executor.

Limit on frequency of passing accounts

76(5.2)     A trust corporation shall not be required to pass accounts under subsection (5.1) more often than once in each 36 months.

22(4)       Subsection 76(6) is repealed.

22(5)       Subsection 76(8) is repealed and the following is substituted:

Notice of time and place for passing accounts

76(8)       Where accounts are filed in the court under this section, the court shall fix a date, time and place for the passing of the accounts, and the trust corporation filing the accounts shall, at least 14 days before the fixed date,

(a) serve, in accordance with the regulations, a notice of the date, time and place, together with such other information as is prescribed by regulation, on such persons as the court directs; and

(b) publish the notice in accordance with the regulations.

22(6)       Subsections 76(10) to (12) are repealed and the following is substituted:

Appearance and expenses of interested person

76(10)      An interested person has the right to appear in court personally or to be represented by counsel at the passing of accounts under this section, and the court may order any expenses incurred by an interested person in respect of the passing of accounts to be charged against the income of the common trust fund or, where the available income is less than the amount of the expenses, to be charged in whole or in part against the principal of the common trust fund.

Effect of passing accounts

76(11)      Accounts approved by the court under this section are, except with respect to any mistake or fraud shown in the accounts, binding and conclusive upon all interested persons as to all matters shown in the accounts and as to the administration of the common trust fund by the trust corporation for the period covered by the accounts.

Costs to be charged to common trust fund

76(12)      The costs incurred by a trust corporation in respect of passing accounts under this section shall be charged against the income of the common trust fund and, where the available income is less than the amount of the costs, the court may order the excess amount to be charged against the principal of the common trust fund in accordance with the direction of the court.

THE CHILD AND FAMILY SERVICES ACT

C.C.S.M. c. C80 amended

23          The Child and Family Services Act is amended by this Act.

24(1)       Subsection 34(1) is repealed and the following is substituted:

Right to counsel

34(1)       Subject to subsections (1.1) and (2), a judge or a master shall, before the commencement of a hearing under section 27, advise any person who was given notice of the hearing under section 30 and who is present at the hearing that the person has the right to be represented by legal counsel.

24(2)       The following is added after subsection 34(1):

Legal counsel for parent who is a child

34(1.1)     Where a parent of a child who is the subject of a hearing under section 27 is a child and is 12 years of age or older, the parent has the right to retain and instruct legal counsel in respect of the hearing.

24(3)       Subsection 34(2) is amended by striking out "In the case of a child," and substituting "In the case of the child who is the subject of the hearing,".

Coming into force

25          This Act comes into force on the day it receives royal assent.