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The Family Maintenance Amendment Act

This is an unofficial version.
If you need an official copy, contact Statutory Publications.

S.M. 1997, c. 56

THE FAMILY MAINTENANCE AMENDMENT ACT


 

(Assented to June 28, 1997)

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

C.C.S.M. c. F20 amended

1         The Family Maintenance Act is amended by this Act.

2         Section 1 is amended by adding the following definitions in alphabetical order:

"child support guidelines" means the Child Support Guidelines Regulation made under section 39.2; (« lignes directrices sur les pensions alimentaires pour enfants »)

"child support order" means an order for support, maintenance and education of a child made under this Act or any predecessor Act and includes an interim order under section 43; (« ordonnance alimentaire au profit d'un enfant »)

3         The following is added before section 36 as part of Part IV:

Definition of "child"

35.1      For the purpose of this Part other than section 39, "child" means a child who, at the relevant time

(a) is under the age of 18 years and has not withdrawn from the charge of his or her parents; or

(b) is 18 years of age or over and under their charge but is unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

4(1)      Subsection 36(1) is amended by striking out ", until the child attains the full age of 18 years".

4(2)      Subsection 36(2) is amended by striking out "and until the child attains the full age of 18 years".

4(3)      Subsection 36(3) is amended by striking out "and until the child attains the full age of 18 years".

4(4)       Subsection 36(4) is amended by striking out "support maintenance and education of that child until the child attains the full age of 18 years" and substituting "support, maintenance and education of that child".

4(5)      Subsection 36(5) is repealed.

5         The following is added after section 36:

FINANCIAL DISCLOSURE

Financial disclosure

36.1(1)   A parent, or another person found by a court to have an obligation to provide for the support of the child or children, whose income information is necessary to determine an amount of child support shall, upon the request of the other parent, or person, or his or her authorized representative, provide that other parent, person or representative, with financial information in accordance with the child support guidelines.

Penalty

36.1(2)   Where a person fails to comply with subsection (1), a court on application may, in addition to or in substitution for any other penalty to which the non-complying person is liable under this Act or the child support guidelines, order that person to pay to the applicant an amount not exceeding $5000.

6         Section 37 is repealed and the following is substituted:

Child support order

37(1)     A court may, on application by a parent, or by any person on behalf of a child or children, make an order requiring a parent, or any other person having an obligation to provide for the support of the child or children under subsection 36(2), (3) or (4), to pay for the support of any and all children of the parent.

Child support guidelines apply

37(2)     A court making a child support order shall do so in accordance with the child support guidelines.

Terms and conditions

37(3)     The court may make a child support order for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the child support order as it thinks fit and just.

Costs

37(4)     The court making a child support order may also order that a party pay costs in such amount as the court may determine.

Obligation continuing after death

37(5)     The court making a child support order may also order that the obligation and liability for support, maintenance and education continue after the death of the person charged with the obligation and be a debt of his or her estate for the period fixed in the order.

Agreement etc. taken into account

37(6)     Notwithstanding subsection (2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the persons having an obligation under section 36, or the division or transfer of their property, directly or indirectly benefit the child or children, or that special provisions have otherwise been made for the benefit of the child or children; and

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

Reasons

37(7)     Where the court awards, pursuant to subsection (6), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for having done so.

Consent orders

37(8)     Notwithstanding subsection (2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parties if it is satisfied that reasonable arrangements have been made for the support of the child or children to whom the order relates.

Reasonable arrangements

37(9)     For the purposes of subsection (8), in determining whether reasonable arrangements have been made for the support of the child or children, the court shall have regard to the child support guidelines.  However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.

Priority to child support

37.1(1)   Where a court is considering an application for a child support order and an application for a spousal support order under section 10, the court shall give priority to child support in determining the applications.

Reasons

37.1(2)   Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

37.1(3)   Where, as a result of giving priority to child support, a spousal support order is not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

Application to vary, rescind or suspend order

37.2(1)   Where a court has made a child support order, that court, on application may make an order varying, rescinding or suspending, prospectively or retroactively, the child support order or any provision of the child support order.

Terms and conditions

37.2(2)   The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for child support order

37.2(3)   Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the child support guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Child support guidelines apply

37.2(4)   A court making a variation order shall do so in accordance with the child support guidelines.

Subsections 37(6) to (9) and section 37.1 apply

37.2(5)   Subsections 37(6) to (9) and section 37.1 apply with necessary modifications when an application is made under subsection (1) to vary, rescind or suspend a child support order.

Combined order

37.2(6)   Where an application is made to vary a child support order, made prior to the coming into force of the child support guidelines, that provides a single amount of money for the combined support of one or more children and a spouse, the court shall rescind the order and treat the application as an application for a child support order and an application for an order of spousal support under section 10.

Definition of "spouse"

37.2(7)   For the purpose of subsection 37.2(6), "spouse" includes a person entitled to support under subsection 4(3) and subsection 14(1).

7         Section 38 is repealed.

8         Subsection 39(2) is amended by adding the following after clause (d):

(e) a party pay costs in such amount as the court may determine.

9         The following is added after section 39:

CHILD SUPPORT SERVICE

Child support service

39.1(1)   A child support service established by the Minister of Justice may

(a) assist courts in the determination of the amount of child support;

(b) recalculate at regular intervals in accordance with this Act and the child support guidelines, the amount of child support orders on the basis of updated income information; and

(c) perform additional duties and functions as may be required by the minister or by the child support guidelines.

Appointing child support service

39.1(2)   A person, or an assignee of a child support order, may appoint the child support service to act on his or her behalf for the purpose of requesting and receiving financial information under this Act or the child support guidelines.

Effect of recalculation

39.1(3)   Subject to subsection (6), the amount of a child support order as recalculated pursuant to this section shall for all purposes be deemed to be the amount payable under the child support order.

Liability

39.1(4)   The person against whom a child support order is made becomes liable to pay the amount as recalculated pursuant to this section, 31 days after both parties to the order are notified of the recalculation in the manner provided for in the child support guidelines.

Right to vary

39.1(5)   Where either or both parties do not agree with the amount of the order as recalculated pursuant to this section, either party may, within 30 days after both parties are notified of the recalculation in the manner provided for in the child support guidelines, apply to the court that made the order for an order under section 37.2.

Effect of application

39.1(6)   Where an application is made under subsection (5), the operation of subsection (4) is suspended pending the determination of the application, and the child support order continues in effect.

Withdrawal of application

39.1(7)    Where an application made under subsection (5) is withdrawn before the determination of the application, the person against whom the order was made becomes liable to pay the amount as recalculated pursuant to this section on the day on which he or she would have become liable had the application not been made.

REGULATIONS

Regulations

39.2(1)   The Lieutenant Governor in Council may make regulations establishing guidelines for the making of orders for child support under this Act, and which may permit Manitoba to be designated under subsection 2(5) of the Divorce Act (Canada).

Guidelines

39.2(2)   Without limiting the generality of subsection (1), guidelines may be established under subsection (1)

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

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

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

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

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

(f) respecting the determination of income for the purposes of the application of the child support guidelines;

(g) authorizing a court to impute income for the purposes of the application of the child support guidelines;

(h) respecting the production of financial information and providing for sanctions when that information is not provided;

(i) adopting, in whole or in part, and as amended from time to time, any regulation, guideline, rule, or procedure;

(j) respecting any other matters that are necessary or advisable to carry out the purpose of this Part.

Child support service

39.2(3)   The Lieutenant Governor in Council may make regulations respecting the child support service referred to in section 39.1 and governing recalculations by the child support service.

10         Section 40 is repealed.

11        Section 46 is amended

(a) by striking out "An order made under this Act" and substituting "Subject to section 37.2, an order made under this Act";

(b) in the English version, by striking out "the Child and Family Services Act" and substituting "The Child and Family Services Act"; and

(c) in the French version, by adding "ou de la Loi sur les services à l'enfant et à la famille" after "(abrogée)".

Coming into force

12        This Act comes into force on a day fixed by proclamation.