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C.C.S.M. c. F20

The Family Maintenance Act

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

Definitions

1           In this Act,

"child" includes a child to whom a person stands in loco parentis; (« enfant »)

"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 »)

"common-law partner" of a person means

(a) another person who, with the person, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) another person who, not being married to the person, cohabited with him or her in a conjugal relationship

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

(ii)  for a period of at least one year and they are together the parents of a child; (« conjoint de fait »)

"common-law relationship" means the relationship between two persons who are common-law partners of each other; (« union de fait »)

"court" means the Court of Queen's Bench or the Provincial Court; (« tribunal »)

"custody" means the care and control of a child by a parent of that child; (« garde »)

"deputy registrar" means a deputy registrar of the Court of Queen's Bench; (« registraire adjoint »)

"judge" means a judge of the court; (« juge »)

"master" means a master or referee of the Court of Queen's Bench; (« conseiller-maître »)

"parent" means a biological parent or adoptive parent of a child and includes a person declared to be the parent of a child under Part II; (« parent »)

"spouse" where used in relation to another spouse means the person who is married to that spouse, and "spouses" means two persons who are married to each other. (« conjoint »)

S.M. 1997, c. 56, s. 2; S.M. 2001, c. 37, s. 4; S.M. 2002, c. 48, s. 6.

Best interests test applies

2(1)        In all proceedings under this Act the best interests of the child shall be the paramount consideration of the court.

Child's views to be considered

2(2)        Where the court is satisfied that a child is able to understand the nature of the proceedings and the court considers that it would not be harmful to the child, the court may consider the views and preferences of the child.

Court may direct investigation

3(1)        In a proceeding under this Act, the court may direct an investigation into any matter by a person who

(a) has had no previous connection with the parties to the proceeding or to whom each party consents; and

(b) is a family investigator, social worker or other person approved by the court for the purpose.

Investigation only to determine best interests

3(2)        A court may direct an investigation under subsection (1) only if satisfied that it is necessary in order to determine the best interests of the child.

Refusal to co-operate

3(3)        Where a court directs an investigation pursuant to subsection (1) and a party refuses to co-operate with the investigator, the investigator shall so report to the court which may draw any inference therefrom it considers appropriate.

PART I

SPOUSES AND COMMON-LAW PARTNERS

Mutual support obligation

4(1)        Spouses and common-law partners have the mutual obligation to contribute reasonably to each other's support and maintenance.

Conduct

4(2)        The obligation under subsection (1) exists without regard to the conduct of either spouse or common-law partner, and in determining whether to make an order under this Act for support and maintenance of a spouse or common-law partner, a court shall not consider the conduct of the spouses or the common-law partners in respect of the marriage or common-law relationship.

4(3) and (4) Repealed, S.M. 2001, c. 37, s. 4.

S.M. 2001, c. 37, s. 4.

Personal expenses

5           The right of a spouse or common-law partner to support and maintenance within the meaning of section 4 includes the right, while living with the other spouse or common-law partner, to periodic reasonable amounts for clothing and other personal expenses and the right to sole discretion free of all interference from the other spouse or common-law partner in the use of those amounts.

S.M. 2001, c. 37, s. 4.

Onus of self-support after separation

6           Notwithstanding section 4, a spouse or common-law partner has the obligation after separation to take all reasonable steps to become financially independent of the other spouse or common-law partner.

S.M. 2001, c. 37, s. 4.

Factors affecting order

7(1)        In determining whether to make an order under this Part or section 46, what provisions the order should contain, and, in particular, what is reasonable under sections 4, 5 and 6 for the purposes of the order, a court shall consider all the circumstances of the spouses or common-law partners, including the following:

(a) the financial needs of each;

(b) the financial means, earnings and earning capacity of each;

(c) the standard of living of the spouses or common-law partners;

(d) any obligation of either of them for the support and maintenance of a child or a person other than the other spouse or common-law partner;

(e) any contribution of a spouse or common-law partner within the meaning of subsection (2);

(f) the amount of any property settlement made between them;

(g) where one of them is financially dependent upon the other, the measures available for the dependent person to become financially independent of the other, and the length of time and cost involved in taking those measures;

(h) any impairment of the income-earning capacity and financial status of either resulting from the marriage or common-law relationship;

(i) where one of them is financially dependent upon the other, whether and to what extent the dependent spouse or common-law partner is complying with the requirements of section 6;

(j) the duration of the marriage or common-law relationship.

Domestic service as financial contribution

7(2)        Any housekeeping, child care or other domestic service performed by a spouse or common-law partner for the family is a contribution to support and maintenance within the meaning of section 4 in the same way as if the spouse or common-law partner were devoting the time spent in performing that service in gainful employment and were contributing the earnings therefrom to support and maintenance.

S.M. 2001, c. 37, s. 4.

Financial information

8(1)        Spouses and common-law partners have the mutual obligation to provide each other upon request with information and accountings respecting the financial affairs of the marriage or common-law relationship and the domestic establishment relating thereto and, without restricting the generality of the foregoing, with

(a) copies of each other's income tax returns, together with assessment notices;

(b) itemized statements of each other's gross and net earnings, showing all deductions; and

(c) itemized statements of each other's debts and liabilities, if any.

Penalty for non-disclosure

8(2)        Where a spouse or common-law partner fails to comply with subsection (1), a court on application by the other spouse or common-law partner, may, in addition to or in substitution for any other penalty to which the non-complying party is liable under this Act, order that party to pay to the applicant an amount not exceeding $5,000.

S.M. 2001, c. 37, s. 4.

Application for order

9(1)        A spouse or common-law partner, or any person on his or her behalf, may apply to a court for an order of support and maintenance where

(a) the other spouse or common-law partner is in breach of an obligation under this Part; or

(b) an order is desired to fix the amount of support and maintenance payable to the other spouse or common-law partner.

Effect of separation agreement

9(2)        Where spouses or common-law partners have separated by mutual agreement, and one of them has agreed in writing to release the other from liability for support and maintenance or to accept from the other specified periodic amounts for support and maintenance, no order shall be made under this Act for the support and maintenance of the spouse or common-law partner who has so agreed.

Restricted application of subsection (2)

9(3)        Subsection (2) does not apply in the case of a separation agreement

(a) where the spouse or common-law partner who is required by the agreement to provide support and maintenance is in default thereunder; or

(b) where the support and maintenance that a spouse or common-law partner agreed therein to provide was inadequate having regard to the circumstances of both spouses or common-law partners at the date of the agreement; or

(c) where the spouse or common-law partner who in the agreement released the other from liability for support and maintenance or agreed to accept from the other specified periodic amounts for support and maintenance has become a public charge or a person in need of public assistance.

Dum casta clauses inoperative

9(4)        Where an agreement provides that support for a spouse or common-law partner shall only continue while the spouse or common-law partner is chaste that provision is invalid and unenforceable and all other provisions of the agreement shall be enforced without regard to that provision.

S.M. 2001, c. 37, s. 4.

Order

10(1)       Upon an application under this Part, a court may make an order containing any one or more of the following provisions and may make any provision in the order subject to such terms and conditions as the court deems proper:

(a) That one spouse or common-law partner pay to the other spouse or common-law partner, or to a third person on his or her behalf, such lump sum or periodic sums or both for support and maintenance or for clothing and other personal expenses as the court may determine.

(b) That the spouses be no longer bound to cohabit with one another.

(b.1) A finding as to the period of time during which common-law partners cohabited in a common-law relationship, and the dates their cohabitation commenced and ceased.

(b.2) That one of the spouses or common-law partners has the right to continue occupying the family residence for such length of time as the court may order, notwithstanding that the other spouse or common-law partner alone is the owner or lessee of the residence or that both spouses or common-law partners together are the owners or lessees of the residence.

(c) and (d) repealed, S.M. 1998, c. 41, s. 29.

(e) That court costs and reasonable solicitor's costs, in such amounts as the court may determine, be paid by one spouse or common-law partner, or by both spouses or common-law partners, in such proportions as the court may determine.

(f) That a spouse or common-law partner, or his or her employer, partner or principal, as the case may be, provide the other spouse or common-law partner with any information, accountings or documents requested under section 8 and, where the Crown is the employer, this clause binds the Crown.

(g) That any information, accountings or documents ordered to be provided under clause (f), and any examination or cross-examination thereon, shall be treated as confidential and shall not form part of the public record of the court.

(h) That the obligation and liability for support continue after the death of the spouse or common-law partner liable to pay and be a debt of his or her estate for such period as is fixed in the order.

(i) That a spouse or common-law partner who has a policy of life insurance as defined in The Insurance Act designate the other spouse or common-law partner or a child as the beneficiary either irrevocably or for such period as is fixed in the order.

(j) That communication and contact between the spouses or common-law partners be prohibited or restricted.

Offer to settle by respondent

10(2)       A respondent may at any time prior to the hearing of the application for support and maintenance serve on the applicant an offer under seal to pay a lump sum or to make periodic payments or both to the applicant in satisfaction of the claim for support and maintenance.

Offer to settle by applicant

10(3)       An applicant may at any time prior to the hearing of the application for support and maintenance serve on the respondent an offer under seal to accept a lump sum or periodic payments or both in satisfaction of the claim for support and maintenance.

Offer not to be communicated to judge

10(4)       Where an offer under subsection (2) or (3) is rejected, no communication of that fact shall be made to the judge at the hearing until all questions of liability to pay and the amount of support and maintenance have been decided but the judge shall, in exercising his discretion as to costs, take into account the fact that an offer was made, the amount of the offer and the time when it was made.

Postponement of sale

10(5)       Where under this Part a court makes an order containing a provision under clause (1)(b.2), it may include in the order a provision that such rights as the other spouse or common-law partner may have as owner or lessee to apply for partition and sale or to sell or otherwise dispose of the residence be postponed subject to the right of occupancy contained in the order.

Right of occupancy restricted

10(6)       No right of occupancy of a spouse or common-law partner ordered under clause (1)(b.2) shall continue after the rights of the other spouse or common-law partner as owner or lessee or of both spouses or common-law partners as owners or lessees, as the case may be, are terminated.

S.M. 1988-89, c. 11, s. 8; S.M. 1998, c. 41, s. 29; S.M. 2001, c. 37, s. 4; S.M. 2002, c. 48, s. 6.

Transitional re clauses 10(1)(c) and (d) and Division 2 of Part V

10.1(1)     Despite the repeal of clauses 10(1)(c) (no entry to spouse's premises) and (d) (non-molestation) and Division 2 (non-molestation order by magistrate) of Part V,

(a) an application for an order under any of those provisions made before this section comes into force may be continued as if those provisions remain in force; and

(b) a provision of an order or interim order made under those provisions continues in force and may be revoked or varied under this Act to delete those provisions, but may not be otherwise varied.

Effect of order under Domestic Violence Act on order made under clause 10(1)(d)

10.1(2)     Despite subsection (1), when a protection order or prevention order is made under The Domestic Violence and Stalking Act in respect of persons who are also parties to an order under this Act that includes a provision made under clause 10(1)(d) of this Act,

(a) if the order was made by a designated magistrate pursuant to Division 2 of Part V, the order is revoked; and

(b) if the order was made by a judge of the Provincial Court, that provision of the order is revoked.

Applicant and respondent must be the same persons

10.1(3)     For greater certainty, the parties referred to in subsection (2) must be the same applicant and the same respondent in both orders.

S.M. 1998, c. 41, s. 29; S.M. 2001, c. 31, s. 2; S.M. 2004, c. 13, s. 16.

Orders under Child Custody Enforcement Act

11          In an application for custody of or access to a child under this or any other Act, a judge may, if he considers it necessary in the circumstances, by order

(a) authorize the applicant or someone on his behalf to locate and apprehend a child and section 9 of The Child Custody Enforcement Act applies with the necessary changes to the order;

(b) direct any person or public body to provide the court with such particulars of the address of the proposed respondent to the application as are contained in the records in the custody of the person or body and section 13 of The Child Custody Enforcement Act applies with the necessary changes to the order.

Reconciliation

12(1)       A court before proceeding to hear any application brought before it under this Part shall direct such inquiries to the applicant spouse or common-law partner and, where the respondent spouse or common-law partner is present, to that party as it deems necessary in order to ascertain whether a possibility exists of their reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, and if at that or any later stage in the proceedings it appears to the court from the nature of the case, the evidence or the attitude of the parties or either of them that there is a possibility of their reconciliation, the court

(a) shall adjourn the proceedings to afford the parties an opportunity of becoming reconciled; and

(b) may direct the parties to consult a person with experience or training in relationship counselling or guidance, or some other suitable person, for assistance with a view to their possible reconciliation.

Resumption of hearing

12(2)       Where 30 days have elapsed from the date of any adjournment under subsection (1) and either of the parties applies to the court to have the proceedings resumed, the court shall resume the proceedings.

S.M. 2001, c. 37, s. 4.

13          Repealed, S.M. 2002, c. 48, s. 6.

S.M. 2002, c. 48, s. 6.

14(1)       Repealed, S.M. 2002, c. 48, s. 6

Restricting contact between cohabitees

14(2)       Where two persons who are not married to each other have cohabited in a conjugal relationship, either person may apply to a court for an order under this Part to include a provision under clause 10(1)(j) and, for the purposes of such an application, this Act applies with such modifications as the circumstances require.

S.M. 1998, c. 41, s. 29; S.M. 2001, c. 37, s. 4; S.M. 2002, c. 48, s. 6.

PART II

CHILD STATUS

Definition

15          In this Part, "director" means the Director of Vital Statistics.

Void and voidable marriage

16          For the purpose of section 23,

(a) where a man and woman go through a form of marriage with each other with at least one of them doing so in good faith and they cohabit and the marriage is void, they shall be deemed to be married during the time they cohabit; and

(b) where a voidable marriage is decreed a nullity, the man and woman shall be deemed to be married until the date of the decree of nullity.

S.M. 1996, c. 64, s. 8.

Person is child of parents

17          For all purposes of the law of Manitoba a person is the child of his parents, and his status as their child is independent of whether he is born inside or outside marriage.

Application

18          This Part applies to an enactment made before, on or after October 1, 1983 and to an instrument made on or after October 1, 1983 but it does not affect

(a) an instrument made before October 1, 1983; or

(b) a distribution of property made before October 1, 1983.

Declaration

19(1)       Any person having an interest may apply to the court for a declaratory order that a woman is or is not in law the mother of a child.

Order

19(2)       Where the court finds on the balance of probabilities that a woman is or is not the mother of a child, the court may make a declaratory order to that effect.

Declaration

20(1)       Subject to subsection (7), any person having an interest may apply to the court for a declaratory order that a man is or is not in law the father of a child whether born or unborn and notice of the application shall be served forthwith on the Director of Child and Family Services appointed under The Child and Family Services Act.

Director of Child and Family Services may move for hearing

20(2)       Where the Director of Child and Family Services certifies to the court that the mother of the child in question in the application has sought the aid of an agency under The Child and Family Services Act or The Adoption Act and is considering adoption for the child, the Director may make the application returnable before a court by serving seven days notice on the applicant and the court shall take all reasonable steps to expedite the hearing of the application.

Order

20(3)       Where the court finds on the balance of probabilities that a man is or is not the father of a child, the court may make a declaratory order to that effect.

One presumption

20(4)       Where the court finds that a presumption of paternity under section 23 applies, the court shall make a declaratory order confirming that the paternity is recognized in law unless it is established on the balance of probabilities that the presumed father is not the father of the child.

Conflicting presumptions

20(5)       Where circumstances exist that give rise under section 23 to conflicting presumptions as to the paternity of a child and the court finds on the balance of probabilities that a person is the father of a child, the court may make a declaratory order to that effect.

Order during lives of parent and child

20(6)       Subject to subsection (7), a declaration of parentage under this Part shall not be made unless the person and the child whose relationship is sought to be established are living.

Exception if presumption

20(7)       Where only the father or the child is living, a declaratory order that a man is in law the father of a child may be made under this section if circumstances exist that give rise to a presumption of paternity under section 23.

No declaration where child placed for adoption

20(8)       The court shall not hear an application under this section where the Director of Child and Family Services files with the court a certificate that states that the child has been placed for adoption and the Director received the notice of application more than 21 days after a parent of the child who is the subject of the application

(a) gave a consent to the adoption of the child under The Adoption Act; or

(b) signed a voluntary surrender of guardianship of the child under The Child and Family Services Act;

as the case may be.

S.M. 1997, c. 47, s. 132.

Blood tests

21(1)       On the application of a party to a proceeding under section 19 or 20 the court may, subject to conditions it considers appropriate, give the party leave to obtain blood tests of persons named by the court and to submit the results in evidence.

Incapacity

21(2)       Where a person named by the court is not capable of consenting to having a blood test taken, the consent shall be deemed to be sufficient

(a) where the person is a minor of the age of 16 years or more, if the minor consents;

(b) where the person is a minor under the age of 16 years, if the person having the custody or guardianship of the minor consents; and

(c) where the person is not capable of consenting for any reason other than minority, if the person having his charge consents and a medical practitioner certifies that the giving of a blood sample would not be prejudicial to his proper care and treatment.

Inference from refusal

21(3)       Where a person named by the court refuses to submit to a blood test the court may draw any inference it considers appropriate.

Order to be recognized

22(1)       Subject to this section, a declaratory order made under section 19 or 20 shall be recognized for all purposes.

New evidence

22(2)       Where a declaratory order has been made under section 19 or 20 or an application for such an order has been dismissed and evidence that was not available at the previous hearing becomes available the court may, on application, hold a new hearing and discharge the previous order.

Effect of new order

22(3)       Where an order is discharged under subsection (2),

(a) rights and duties which have been exercised and observed; and

(b) interests in property which have been distributed as a result of the order before its discharge;

are not affected.

Presumption of paternity

23          Unless the contrary is proved on the balance of probabilities, and subject to section 34 a man shall be presumed to be the father of a child in one or more of the following circumstances:

(a) He was married to the mother at the time of the child's birth.

(b) He was married to the mother by a marriage that was terminated by

(i) death or judgment of nullity that occurred within 300 days or such longer period as the court may allow, before the birth of the child; or

(ii) divorce where the decree nisi or divorce judgment was granted within 300 days, or such longer period as the court may allow, before the birth of the child.

(c) He married the mother after the child's birth and acknowledged that he is the father.

(d) He and the mother have acknowledged in writing that he is the father of the child.

(e) He was cohabiting with the mother in a relationship of some permanence at the time of the child's birth or the child was born within 300 days, or such longer period as the court may allow, after the cohabitation ceased.

(f) He has been found or recognized by a court to be the father of the child.

S.M. 2001, c. 31, s. 3.

Orders to be filed with director

24(1)       The registrar or clerk of every court in Manitoba shall file in the office of the director a statement respecting each order or judgment of the court which makes a finding of parentage of that is based on a recognition of parentage.

Acknowledgements may be filed with director

24(2)       A written acknowledgement of paternity referred to in section 23 may be filed in the office of the director.

Inspection of filings

24(3)       On application and on satisfying the director that the information is not to be used for an unlawful or improper purpose, any person may inspect and obtain from the director a certified copy of

(a) a statement or acknowledgement filed under this section;

(b) a statutory declaration filed under subsection 3(7) of The Vital Statistics Act; or

(c) a request filed under subsection 3(9) of The Vital Statistics Act.

Director need not amend

24(4)       Subject to subsection (5), the director is not required to amend the register of births in relation to a statement or acknowledgement filed under this section.

Director shall amend

24(5)       On receipt of a statement under subsection (1) or where there is no conflicting presumption on receipt of an acknowledgement under clause 23(d) in relation to a declaratory order made under section 19 or 20, the director shall amend the register of births accordingly.

PART III

RECOGNITION OF EXTRA-PROVINCIAL DETERMINATION OF PATERNITY

Definitions

25          In this Part

"director" means the Director of Vital Statistics under The Vital Statistics Act; (« directeur »)

"extra-provincial declaratory order" means an order in the nature of a declaratory order provided for in Part II but made by a court outside of Manitoba; (« ordonnance déclaratoire extra-provinciale »)

"extra-provincial finding" means a judicial finding of paternity or maternity that is made incidentally in the determination of another issue by a court outside of Manitoba and that is not an extra-provincial declaratory order. (« déclaration extra-provinciale »)

S.M. 2001, c. 31, s. 4.

Recognition of orders made elsewhere in Canada

26          An extra-provincial declaratory order that is made in Canada shall be recognized and have the same effect as if made in Manitoba.

Recognition of orders made outside Canada

27          An extra-provincial declaratory order that was made outside Canada shall be recognized and have the same effect as if made in Manitoba, if

(a) at the time the proceeding was commenced or the order was made, either parent was domiciled,

(i) in the territorial jurisdiction of the court making the order, or

(ii) in a territorial jurisdiction in which the order is recognized;

(b) the court that made the order would have had jurisdiction to do so under the rules that are applicable in Manitoba;

(c) the child was habitually resident in the territorial jurisdiction of the court making the order at the time the proceeding was commenced or the order was made; or

(d) the child or either parent had a real and substantial connection with the territorial jurisdiction in which the order was made at the time the proceeding was commenced or the order was made.

S.M. 1993, c. 48, s. 14.

Exceptions

28          A court may decline to recognize an extra-provincial declaratory order and may make a declaratory order under this Act where,

(a) new evidence that was not available at the hearing becomes available; or

(b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress.

Filing with director

29(1)       A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, may be filed in the office of the director but where the extra-provincial declaratory order is made outside of Canada, the copy shall be accompanied by,

(a) the opinion of a lawyer authorized to practice in the province that the declaratory order is entitled to recognition under the law of Manitoba;

(b) a sworn statement by a lawyer or public official in the extra-provincial territorial jurisdiction as to the effect of the declaratory order; and

(c) such translation, verified by affidavit, as the director requires.

Amendment of record

29(2)       Upon the filing of an extra-provincial declaratory order under this section the director shall amend the register of births accordingly, but where the extra-provincial declaratory order contradicts paternity or maternity found by an order already filed, the director shall restore the amended record as if unaffected by it or previous orders.

Liability of director

29(3)       The director is not liable for any consequences resulting from filing under this section material that is apparently regular on its face.

Evidence

30          A copy of an extra-provincial declaratory order, certified under the seal of the court that made it, is admissible in evidence without proof of the signature or office of any person executing the certificate.

Findings elsewhere in Canada

31          An extra-provincial finding that is made in Canada shall be recognized and have the same effect as if made in Manitoba under the same circumstances.

Findings outside Canada

32          An extra-provincial finding that is made outside Canada by a court that has jurisdiction to determine the matter in which the finding was made as determined by the conflict of laws rules of Manitoba shall be recognized and have the same effect as if made in Manitoba under the same circumstances.

Evidence

33          A copy of an order or judgment in which an extra-provincial finding is made, certified under the seal of the court that made it, is admissible in evidence without proof of the signature or office of any person executing the certificate.

Presumption where conflicting findings

34          There shall be no presumption of paternity where contradictory findings of paternity exist, whether extra-provincial or otherwise.

Application

35          This Part applies to extra-provincial declaratory orders and extra-provincial findings whether made before or after they come into force.

PART IV

CHILDREN

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.

S.M. 1997, c. 56, s. 3.

Obligation to support children

36(1)       Each parent of a child has the obligation, subject to The Child and Family Services Act, to provide reasonably for the child's support, maintenance and education, whether or not the child is in that parent's custody.

Child of spouse

36(2)       A spouse has the obligation to provide reasonably for the support, maintenance and education of any child of the other spouse, while the child is in the custody of the spouses, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

Child of cohabiting person

36(3)       A person who is cohabiting in a conjugal relationship with, but is not married to, another person has the obligation during cohabitation to provide reasonably for the support, maintenance and education of any child of that other person, while the child is in the custody of the persons or either of them, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

Person standing in loco parentis

36(4)       A person who stands in loco parentis to a child has the obligation to provide reasonably for the support, maintenance and education of that child, but the obligation is secondary to that of the child's parents under subsection (1) and is an obligation only to the extent that those parents fail to provide reasonably for the child's support, maintenance or education.

36(5)       Repealed, S.M. 1997, c. 56, s. 4.

S.M. 1997, c. 56, s. 4; S.M. 2001, c. 37, s. 4.

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.

S.M. 1997, c. 56, s. 5.

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.

S.M. 1997, c. 56, s. 6.

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 or common-law partner 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 or common-law partner support order, or makes such an 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 or common-law partner support order is not made, or the amount of such an 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 or common-law partner support order, or a variation order in respect of such an order, as the case may be.

S.M. 1997, c. 56, s. 6; S.M. 2001, c. 37, s. 4.

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 or common-law partner, 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 or common-law partner support under section 10.

37.2(7)     Repealed, S.M. 2001, c. 37, s. 4.

S.M. 1997, c. 56, s. 6; S.M. 2001, c. 37, s. 4.

38          Repealed.

S.M. 1997, c. 56, s. 7.

Joint rights of parents in children

39(1)       Subject to subsection (2), rights of parents in the custody and control of their children are joint but where the parents have never cohabited after the birth of the child, the parent with whom the child resides has sole custody and control of the child.

Either parent may apply for custody of child

39(2)       Either parent of a child may make an application

(a) for custody of the child; or

(b) for access to the person of the child;

and upon the hearing of the application the court may order that

(c) custody of the child be committed to the applicant or respondent or both;

(d) the non-custodial parent have access, at such times and subject to such conditions as the court deems convenient and just, for the purpose of visiting the child and fostering a healthy relationship between parent and child;

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

Evidence re conduct of parent

39(3)       In considering an application under this section, a court shall only receive evidence of the conduct of either parent if the court is satisfied that the evidence bears directly on the parent's ability to care properly for the child.

Access of parent to school and medical records

39(4)       Unless a court otherwise orders, the non-custodial parent retains the same right as the parent granted custody to receive school, medical, psychological, dental and other reports affecting the child.

Exception

39(5)       The right of the non-custodial parent to receive the records described in subsection (4) is a right to be provided with information only and is not, unless a court orders otherwise, a right to be consulted about or to participate in the making of decisions by the parent granted custody.

S.M. 1989-90, c. 46, s. 2; S.M. 1997, c. 56, s. 8.

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 as of the day specified in the order recalculating child support made by the child support service.  That day may not be earlier than three months after the recalculation commencement date specified by the court in the order requiring the child support service to recalculate the amount of the child support order.

Liability

39.1(4)     The person against whom a child support order is made becomes liable to pay the recalculated amount as set out in the order made by the child support service, as of the day the amount becomes payable under subsection (3).

Suspension

39.1(4.1)   The operation of subsection (4) is suspended until 31 days after both parties to the child support order have been 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 recalculated amount, 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.

If no application to vary made

39.1(5.1)   If no application to vary is made under subsection (5), the person against whom the order was made becomes liable to pay the recalculated amount as of the day the amount becomes payable under subsection (3).

Effect of application to vary

39.1(6)     Where an application is made under subsection (5), the operation of subsection (4) is further 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 recalculated amount as of the day the amount becomes payable under subsection (3).

S.M. 1997, c. 56, s. 9; S.M. 2007, c. 13, s. 2.

Child support service may request information

39.1.1(1)   The child support service may in writing request a person, the government or an agency of the government to provide in writing any information in the possession or control of the person, government or agency about a party to a child support order to be recalculated, respecting

(a) the party's address or whereabouts;

(b) the name and address of the party's employer; and

(c) the financial information required from the party under this Act or the child support guidelines, whether or not an appointment has been made under subsection 39.1(2).

Service of request for information

39.1.1(2)   A request for information made by the child support service under subsection (1) may be served

(a) personally;

(b) by sending it by ordinary mail, in which case it is deemed to be served on the fifth day after the day it is mailed; or

(c) by sending it by fax, in which case it is deemed to be served on the day it is sent.

Information to be provided

39.1.1(3)   Despite any provision in any Act or regulation or any other law, a person, government or agency served with a request from the child support service under subsection (1) shall

(a) comply with the request; and

(b) provide the requested information without fee within 21 days after service of the request.

If information not provided

39.1.1(4)   If the child support service does not receive information requested under subsection (1) within 21 days after service of the request, the child support service may take any action it considers advisable, including applying to a judge or master for an order under subsection (5).

Information order

39.1.1(5)   On motion by the child support service, a judge or master may make an order, subject to such terms and conditions as the judge or master considers advisable, compelling a person, the government or an agency of the government to give the requested information to the child support service.

Crown bound

39.1.1(6)   Her Majesty in right of Manitoba is bound by this section.

S.M. 2007, c. 13, s. 3.

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, deeming income if that information is not produced, and providing for sanctions;

(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.

S.M. 1997, c. 56, s. 9; S.M. 2007, c. 13, s. 4.

40          Repealed.

S.M. 1989-90, c. 46, s. 3; S.M. 1997, c. 56, s. 10.

PART V

PROCEDURE

DIVISION 1

PRACTICE AND PROCEDURE

Application of Division 1

40.1        This Division applies to an order or an application for an order under this Act.

S.M. 1992, c. 47, s. 2; S.M. 1998, c. 41, s. 29.

Jurisdiction of Queen's Bench

41(1)       An application for an order may be made to the Court of Queen's Bench.

Jurisdiction of Provincial Court

41(2)       An application for an order other than an order under clause 10(1)(b.2) or subsection 10(5) or (6) may be made to the Provincial Court (Family Division).

S.M. 1992, c. 47, s. 3; S.M. 1998, c. 41, s. 29; S.M. 2002, c. 48, s. 6.

Practice and procedure

42          Except as otherwise provided in this Act or the regulations, a proceeding under this Act shall be carried on in accordance with the practice and procedure of the court in which it is taken.

S.M. 1992, c. 47, s. 4.

42.1        Re-numbered as section 47.1.

Interim order

43          Where a court before which an application is made is satisfied that the delay necessary to permit compliance with section 12 or any rules of the court, or any other delay that is necessary before an order can be made, may prejudice or work a hardship upon any party to the proceedings or any child of a party to the proceedings, the court may at any time after the application is made, upon the motion of any party and upon notice to all other parties, make such interim order as it deems just.

S.M. 1992, c. 47, s. 6.

Ex parte interim order

44          An interim order under section 43 may, upon the motion of any party to the proceedings and if the court is satisfied that it is necessary, be made ex parte.

Review of order

45          An order may require the parties to return after a specified interval to the court making the order for a review of the provisions thereof, and upon the review the court may vary or discharge the order.

S.M. 1992, c. 47, s. 7.

Application to vary or discharge order

46          Subject to section 37.2, an order made under this Act or under The Wives' and Children's Maintenance Act or under The Family Maintenance Act, being chapter 47 of the Statutes of Manitoba, 1977, or an order made under The Child Welfare Act (now repealed) or under The Child and Family Services Act granting custody of, access to or maintenance for a child, may upon an application therefor be varied from time to time or discharged by the court making the order, if the court thinks it fit and just to do so, but no variation or discharge granted under this section shall be effective before the date on which the application therefor is made.

S.M. 1997, c. 56, s. 11; S.M. 2001, c. 37, s. 4.

DIVISION 2

46.1 to 46.5  Repealed.

S.M. 1992, c. 47, s. 8; S.M. 1998, c. 41, s. 29.

DIVISION 3

GENERAL PROVISIONS

Spouse a compellable witness

47(1)       In any proceeding under this Act, spouses are competent and compellable to give evidence against one another.

Counsellor not a compellable witness

47(2)       A person counselling or assisting spouses or common-law partners in reconciliation efforts during an adjournment under section 12 is not competent or compellable to give evidence for or against either party in any proceeding under this Act or otherwise, and evidence of any statement, admission or communication made to the person in the course of the reconciliation efforts is not admissible for or against either party in the proceeding.

S.M. 2001, c. 37, s. 4.

Affidavits and transcripts

47.1        In all proceedings under this Act, affidavits, depositions or transcripts of evidence taken in any court may be received in evidence.

R.S.M. 1987 Supp., c. 16, s. 5; S.M. 1992, c. 47, s. 5.

Consent orders

48          A court may, without a hearing, make an order under this Act where the parties consent and have agreed as to the provisions of the order.

Information as to address

49(1)       Where, upon application to a judge or master, it appears to the judge or master that,

(a) for the purpose of bringing an application for payment of maintenance or custody; or

(b) for the purpose of enforcing an order for payment of maintenance or an order for custody;

the proposed applicant or person in whose favour the order is made has need to learn or confirm the whereabouts of any person, the judge or master may order any person, the government or any agency of the government to provide the judge or master with such particulars as to the whereabouts of that person as are contained in its records, and the person, government or agency shall comply with the order and the judge or master may then give the particulars to any person the judge or master considers appropriate.

Compliance with the order

49(2)       The giving of information in accordance with an order under subsection (1) shall be deemed for all purposes not to be a contravention of any Act or regulation or common law rule of confidentiality.

Crown bound

49(3)       Her Majesty in right of Manitoba is bound by this section.

S.M. 1996, c. 64, s. 8.

Penalty

50(1)       A person who fails to comply with a provision of this Act or with a provision of an order or interim order made under this Act, other than an order or interim order made under clause 10(1)(c) or (d), is guilty of an offence and is liable on summary conviction to a fine of not more than $500. or to imprisonment for not more than six months or to both.

Penalty re order under clause 10(1)(c) or (d)

50(1.1)     Despite the repeal of clauses 10(1)(c) and (d) and Division 2 (non-molestation order by magistrate) of Part V, a person who fails to comply with a provision of an order or interim order made under clause 10(1)(c) or (d) is guilty of an offence and is liable on summary conviction to a fine of not more than $1000. or to imprisonment for not more than one year, or both.

Imposition of penalty

50(2)       Where a person is before a court for any purpose under this Act, other than under subsection (1) or (1.1), the court, if satisfied that the person has failed to comply with a provision of this Act or with a provision of an order or interim order made or enforced under this Act, may there and then by order impose any of the penalties provided in subsection (1) or (1.1).

R.S.M. 1987 Supp., c. 16, s. 5; S.M. 1992, c. 47, s. 9.; S.M. 1998, c. 41, s. 29.

Appeals

51(1)       An appeal lies to the Court of Appeal from any order or interim order made under this Act.

Effect of appeals

51(2)       Where an appeal is taken from an order made under this Act, the appeal shall not operate as a stay of proceedings, but the order may be enforced as though no appeal were pending unless the court making the order or the Court of Appeal otherwise orders.

PART VI

ENFORCEMENT OF MAINTENANCE ORDERS

Definitions

52          In this Part

"designated authority" has the same meaning as in The Inter-jurisdictional Support Orders Act; (« autorité désignée »)

"designated officer" means a person employed under The Civil Service Act and designated by the Minister of Justice for the purposes of this Part; (« fonctionnaire désigné »)

"order" means

(a) an order or interim order for payment of maintenance made under this Act, The Child and Family Services Act, The Child Welfare Act (now repealed) or The Wives' and Children's Maintenance Act (now repealed), or

(b) a maintenance order, provisional maintenance order or interim maintenance order made in a jurisdiction outside Manitoba and registered or confirmed in Manitoba under The Reciprocal Enforcement of Maintenance Orders Act (now repealed) or The Enforcement of Judgments Conventions Act, or a support order or support variation order made in Manitoba or in a reciprocating jurisdiction outside Manitoba and registered in Manitoba under The Inter-jurisdictional Support Orders Act, or

(b.1) the maintenance or support provisions of a written agreement made in a reciprocating jurisdiction outside Manitoba and registered in Manitoba under The Reciprocal Enforcement of Maintenance Orders Act (now repealed) or The Inter-jurisdictional Support Orders Act, or

(c) the maintenance provisions of a separation agreement duly filed under subsection 53(3.1); (« ordonnance »)

"reciprocating jurisdiction" has the same meaning as in The Inter-jurisdictional Support Orders Act. (« État pratiquant la réciprocité »)

R.S.M. 1987 Supp., c. 16, s. 5; S.M. 1993, c. 48, s. 65; S.M. 2000, c. 13, s. 7; S.M. 2001, c. 33, s. 46; S.M. 2004, c. 14, s. 3; S.M. 2007, c. 13, s. 5.

Automatic application of enforcement provisions

53(1)       The provisions of this Part respecting enforcement by a designated officer apply in the case of any order, other than an order for the payment of a lump sum, made on or after January 1, 1980, unless the person entitled to receive the payments thereunder signs and files with the designated officer a statement in a form satisfactory to the designated officer indicating that the enforcement provisions of this Part shall not apply in the case of that order and in that event those provisions of this Part cease to apply upon the filing of the statement.

Non-application to prior orders or lump sum orders

53(2)       The provisions of this Part respecting enforcement by a designated officer do not apply in the case of any order made before January 1, 1980 or in the case of any order for the payment of a lump sum whenever made, unless the person entitled to receive the payments thereunder signs and files with the designated officer a statement in a form satisfactory to the designated officer indicating that the enforcement provisions of this Part shall apply in the case of that order and in that event those provisions of this Part become applicable upon the filing of the statement.

Subsequent opting into or out of enforcement provisions

53(3)       A person who signs and files a statement under subsection (1) or (2) in respect of an order may, at any time, sign and file a further statement in respect of the order indicating that the provisions of this Part respecting enforcement by a designated officer shall apply or shall not apply to the order and upon the filing of each further statement those provisions become applicable or cease to apply to the order, as the statement may indicate.

Separation agreement

53(3.1)       Subject to subsection (3.2), either party to a separation agreement may file the agreement with the designated officer where

(a) both parties to the agreement have consented to its filing in writing in a form satisfactory to the designated officer; or

(b) the agreement contains a provision permitting it to be filed.

Refusal to file

53(3.2)       The designated officer may refuse to file a separation agreement where the provisions respecting maintenance in the agreement are ambiguous or unsuitable for enforcement under this Part.

Effect of filing

53(3.3)       Upon the filing of an agreement under subsection (3.1) the designated officer shall forthwith register it in the court and thereupon

(a) the provisions of this Part respecting enforcement by a designated officer apply to the agreement; and

(b) where the agreement conflicts with the terms of an order, the order prevails for the purposes of this Part, except in respect of the enforcement of

(i) a final order under The Reciprocal Enforcement of Maintenance Orders Act, in which case that Act applies, or

(ii) a support order under The Inter-jurisdictional Support Orders Act, in which case that Act applies.

Notice

53(3.4)       Upon the filing of an agreement under subsection (3.1), the designated officer shall forthwith notify the party to the agreement that did not file it, that the agreement has been filed and that the enforcement provisions of this Part apply to the agreement.

Withdrawal

53(3.5)       The person who is entitled to receive the payments under an agreement filed under subsection (3.1) may file with the designated officer a further statement indicating that this Part shall not apply to the agreement.  Upon receiving the statement, the designated officer shall immediately notify the other party to the agreement and the enforcement provisions of this Part no longer apply to the agreement.

Renewal

53(3.6)       After the filing of a statement under subsection (3.5), the person entitled to receive the payments under the agreement may, where either of the conditions specified under subsection (3.1) is met, file the agreement with the designated officer and subsections (3.4) and (3.5) apply to the filing under this subsection.

Income assistance recipients

53(4)       Where a person in whose favour an order was made is receiving income assistance or assistance under The Employment and Income Assistance Act, the Director of Employment and Income Assistance appointed under The Employment and Income Assistance Act or a person acting under his or her authority shall sign and file with the designated officer a statement indicating that the provisions of this Part respecting enforcement by a designated officer shall apply in the case of that order, and upon the filing of the statement those provisions if not already applicable to the order under this Part become applicable and, notwithstanding any other provision of this Act, remain applicable so long as the person in whose favour the order was made continues to receive the income assistance or assistance.

Default under Divorce Act orders, etc.

53(5)       In the case of an order or interim order for alimony, alimentary pension or maintenance payments made by a court other than under this Act, The Child Welfare Act (now repealed), The Child and Family Services Act, or The Wives and Children's Maintenance Act (now repealed) the court may make the provisions of this Part respecting enforcement by a designated officer applicable to the payments, with necessary changes.

R.S.M. 1987 Supp., c. 16, s. 5; S.M. 1995, c. 3, s. 3; S.M. 2001, c. 31, s. 5; S.M. 2004, c. 42, s. 29; S.M. 2005, c. 42, s. 12.

Clarification of order

53.1        Where a party to an order does not agree with the designated officer's interpretation of the maintenance provisions in the order, the onus is on the party to apply to the court to have it clarified.

S.M. 1995, c. 3, s. 4.

Remittance of payments to designated officer

54(1)       The person required to make the payments under an order shall remit each payment to the designated officer and the designated officer, after receiving and recording the payment, shall forward the payment to the person entitled to receive it.

Records

54(2)       The designated officer shall make and maintain such records of orders, and of payments received and forwarded under subsection (1) in respect of those orders, and such other records as will enable him or her to ascertain with reasonable dispatch the occurrence of any default in payment under the orders.

Designated officer may specify manner of payment

54(2.1)     Notwithstanding subsection (1) and any provision of an order respecting the manner in which a maintenance payment is to be made, the designated officer may refuse a payment made in respect of the order and require it to be made in a manner he or she considers necessary or advisable, which may include cash, certified cheque or money order.

Certificate of designated officer

54(3)       In any proceeding a computer print-out

(a) showing, as of the date of the print-out, the state of the account, as between the parties to the proceeding, in respect of the payments required to be made by one party to the other pursuant to an order; and

(b) certified by the designated officer as being a true copy of the record in respect of the state of that account as of that date;

is admissible in evidence, on behalf of either party, as prima facie proof of the state of the account, without prior notice to the other party of the intention to submit the print-out in evidence and without proof of the signature of the designated officer on the certificate.

S.M. 1992, c. 58, s. 8; S.M. 1995, c. 3, s. 5; S.M. 2001, c. 31, s. 6.

Designated officer to take action on default

55(1)       Where it appears to a designated officer that a person required to make payments under an order is in default, the officer shall take such action as he or she considers necessary or advisable to determine whether the person is in default and the amount of any default, and to enforce the payment of any amount in default.

Designated officer may request information

55(2)       The designated officer may in writing request a person, the government or an agency of government to provide in writing any information in the possession or control of the person, government or agency respecting

(a) the whereabouts of a person entitled to receive maintenance under an order;

(b) a person required to pay maintenance under an order, including

(i) the whereabouts of the person,

(ii) the name and address of the person's employer,

(iii) the person's financial means, including source of income and payroll records,

(iv) the person's assets and liabilities, including any asset transferred or gifted to the person requested to provide the information, or to a third party,

(v) the person's pension and pension benefit credits, as defined under The Pension Benefits Act,

(vi) the person's income tax returns and assessment notices,

(vii) the person's social insurance number,

(viii) circumstances that affect or could affect the amount of maintenance paid under the order,

(ix) the extent of the person's control or influence over any assets or liabilities of

(A) the person requested to provide the information, or

(B) a third party,

particulars of those assets or liabilities, and the nature of the relationship between the person and a person referred to in paragraph (A) or (B), and

(x) any benefits the person receives from the assets of the person requested to provide the information or a third party; or

(c) the whereabouts of a person named in a request to locate, as defined in The Inter-jurisdictional Support Orders Act, upon the request of the designated authority.

Access to information or databanks

55(2.0.1)   If information described in subsection (2) is included in a database or other collection of information maintained by a department of the government or a government agency, instead of a written request being made under subsection (2), the designated officer and the department of the government or government agency may enter into an arrangement permitting the designated officer to have access to the database or collection to the extent necessary to obtain the information required under subsection (2).  The arrangement must include reasonable security arrangements to protect information against such risks as unauthorized access, use, disclosure and destruction.

Parties to provide information

55(2.1)     Upon the request of the designated officer, the person required to pay maintenance or the person entitled to receive maintenance under an order, or both of them, shall

(a) provide in writing to the designated officer all information of which he or she has direct knowledge relating to the financial means, or other circumstances of either or both of them, or of a person for whom support is payable; or

(b) swear a statutory declaration containing this information;

to enable the designated officer to determine

(c) the amount of maintenance payable under the order; or

(d) the appropriate enforcement methods to be used.

Information that may be disclosed

55(2.2)     Information received by the designated officer under this Part is confidential, except that the officer may

(a) use it to enforce an order under this Part;

(b) give it to an appropriate authority in a reciprocating jurisdiction for the purpose of enforcement of a support order as defined in The Inter-jurisdictional Support Orders Act;

(c) repealed, S.M. 2005, c. 42, s. 12;

(d) give the information referred to in clauses (2)(a) and (c) and subclauses (2)(b)(i) and (ii) to a designated authority for the purpose of carrying out its powers and duties under The Inter-jurisdictional Support Orders Act; or

(e) give the information referred to in clause (2)(a) and subclauses (2)(b)(i) and (ii) to the child support service established under section 39.1 for the purpose of carrying out its powers and duties.

Information to be provided

55(2.3)     Despite any provision in any Act or regulation or any other law, a person, government or agency served with a request under subsection (2) or a person served with a request under subsection (2.1) shall

(a) comply with the request; and

(b) provide the requested information without fee within 21 days after service of the request.

Service of request for information

55(2.4)     A request for information made by the designated officer under subsection (2) or (2.1) may be served

(a) personally; or

(b) by sending it by ordinary mail, in which case it is deemed to be served on the fifth day after the day it is mailed.

Service of certain requests by fax

55(2.4.1)   In addition to the methods of service in subsection (2.4), a request for information made under subsection (2) may be served by sending it by fax, in which case it is deemed to be served on the day it is sent.

Designated officer's options if no compliance

55(2.5)     If the designated officer does not receive information requested under subsection (2) or (2.1) or a person fails to report and swear a statutory declaration under subsection (2.1) within 21 days after service of the request, the officer may take such action as he or she considers advisable, including

(a) proceedings to bring a person required to make payments under an order before a deputy registrar for an examination under section 56;

(b) proceedings to bring a person required to make payments under an order before a judge or master for a hearing under section 57; or

(c) applying to a judge or master for an order under subsection (2.6).

Information or reporting order

55(2.6)     On motion by the designated officer, a judge or master may make an order, subject to such terms and conditions as the judge or master considers advisable,

(a) compelling a person, the government or an agency of the government to give the requested information to the designated officer; or

(b) compelling a person to report to the designated officer and swear a statutory declaration with respect to the requested information.

Crown bound

55(3)       Her Majesty in right of Manitoba is bound by subsection (2.3).

Offence re statutory declaration

55(3.1)     A person who swears a false statutory declaration is guilty of an offence and liable on summary conviction to a fine of not more than $2,000., or imprisonment for a term of not more than 90 days, or both.

Designated officer may initiate action

55(4)       Whether or not any other enforcement proceedings are being taken, the designated officer may take one or more of the following actions in respect of the person required to make payments under an order

(a) Proceedings to obtain a garnishing order under The Garnishment Act.

(b) Registration of the order in a land titles office under section 59 and proceedings under The Judgments Act in pursuance of the registration.

(c) Proceedings to obtain a writ of execution under The Executions Act.

(d) Proceedings to realize upon any bond or security deposited under subsection 57(4).

(e) Proceedings to obtain the appointment of a receiver under section 60.

(f) Proceedings to bring the person in default before a deputy registrar for an examination under section 56.

(g) Proceedings to bring the person in default before a judge or master for a hearing under section 57.

(h) Proceedings for the imposition of a penalty under section 50.

(i) Providing a personal reporting agency, as defined under The Personal Investigations Act, with a computer print-out showing that the person is in default under the order, but the designated officer shall not provide, notwithstanding clause 4(e) of that Act, the address of the person entitled to receive the maintenance.

(j) Giving notice under section 59.1 to the person in default of possible action under The Highway Traffic Act;

(k) Proceedings under section 59.3 to obtain an order with respect to assets;

(l) Registration of a financing statement in the Personal Property Registry under section 59.4 in accordance with The Personal Property Security Act.

R.S.M. 1987 Supp., c. 16, s. 5; S.M. 1995, c. 3, s. 6; S.M. 2001, c. 31, s. 7, 8 and 23; S.M. 2005, c. 2, s. 34; S.M. 2005, c. 37, Sched. A, s. 153; S.M. 2005, c. 42, s. 12; S.M. 2007, c. 13, s. 6.

Screening proceedings before the deputy registrar

56(1)       Whether or not any other enforcement proceedings have been taken, or could be taken, the designated officer may issue a summons, to be served personally or in any other manner a judge or master may direct requiring a person in default

(a) to appear before a deputy registrar at a time and place stated in the summons, there to be examined in respect of any default and in respect of the employment, income, assets and financial circumstances of the person; and

(b) at or before the examination, to complete and file with the court a financial statement in a form satisfactory to the deputy registrar.

Person in default

56(1.1)     For the purpose of this section, "person in default" includes a person who fails to provide information or swear a statutory declaration under subsection 55(2.1).

Action by deputy registrar

56(2)       At the conclusion of the examination, the deputy registrar shall forthwith provide the designated officer with the information obtained at the examination, including a copy of the financial statement filed under clause (1)(b), and may

(a) refer the matter back to the designated officer for appropriate action under subsection 55(4);

(b) order the person in default to appear for a hearing under section 57;

(c) where a statement has not been filed under subsection 53(4) and the person entitled to receive the payments has agreed in writing to a payment plan proposed by the person in default, order payment of the arrears in accordance with the plan;

(d) repealed, S.M. 1995, c. 3, s. 7;

(e) where the person in default has proposed a payment plan which the deputy registrar considers reasonable, make an order in accordance with the proposed plan;.

(f) adjourn the examination with or without conditions for not more than 28 days, or such longer period as is agreed to by the designated officer, to permit

(i) the person in default to retain counsel, or

(ii) the person in default to pay the arrears, or

(iii) the person in default to file and serve an application for a variation of the maintenance order and cancellation of the arrears, or

(iv) subject to subsection 53(4), the person entitled to the payments to file a statement under subsection 53(3) respecting the application of this Part to the order, or

(v) subject to subsection 53(4), the person entitled to the payments to file a consent to a payment plan proposed by the person in default, or

(vi) the person in default to provide such further evidence as the deputy registrar may require including evidence of employment status, or

(vii) a recalculation by the designated officer of the amount in arrears where that amount has been brought into question by the person in default.

56(3)       Repealed, S.M. 1991-92, c. 29, s. 2.

Hearing re order made under clause (2)(e)

56(4)       Where the deputy registrar makes an order under clause (2)(e), the designated officer

(a) shall without delay advise the person entitled to receive the maintenance of the terms of the order; and

(b) taking into consideration any concern expressed by the person, may within 28 days after the day the order was made issue a summons, to be served personally or in any other manner a judge or master may direct, for the person required to pay maintenance to appear at a hearing before a judge or master at a time and place specified in the summons to consider and determine only the payment of arrears.

Order remains in force

56(5)       Where the designated officer issues a summons under subsection (4), the order made under clause (2)(e) remains in force until an order is made by a judge or master after the conclusion of the hearing under subsection (4).

Arrears due if default in payment plan

56(6)       Where the deputy registrar makes an order under clause (2)(e), upon failure to make any payment with respect to arrears by the date specified in the order, the full amount of the arrears specified in the order becomes due and payable.

S.M. 1988-89, c. 11, s. 8; S.M. 1989-90, c. 46, s. 4; S.M. 1991-92, c. 29, s. 2; S.M. 1995, c. 3, s. 7; S.M. 2001, c. 31, s. 9; S.M. 2004, c. 14, s. 4.

Enforcement proceedings before judge or master

57(1)       Whether or not any other enforcement proceedings have been taken or could be taken, the designated officer may issue a summons, to be served personally or in any other manner a judge or master may direct, requiring a person in default to

(a) appear at a hearing before a judge or master at a time and place specified in the summons to show cause why the order should not be enforced under this section or to be examined in respect of his or her financial means and other circumstances, or both; and

(b) file with the court, either before or at the time of the hearing, a financial statement in a form satisfactory to the judge or master.

Person in default

57(1.1)     For the purpose of this section, "person in default" includes a person who fails to provide information or swear a statutory declaration under subsection 55(2.1).

57(2)       Repealed, S.M. 1991-92, c. 29, s. 4.

Powers of judge or master

57(3)       At a hearing under this section, the judge or master shall consider the evidence adduced and may make one or more of the following orders in respect of the person required to pay maintenance:

(a) where the judge or master finds that the person is wilfully in default, fining the person not more than $3,000. or imprisoning the person for not more than 90 days, or both;

(a.1) determining whether the person required to pay maintenance is in default of a payment, and if so, fix the amount of arrears owing for the purpose of enforcement under this Part;

(b) requiring payment of the arrears in full by a specified date;

(c) requiring periodic payments on the arrears;

(d) adjourning the hearing with or without conditions where the judge or master is satisfied that the person

(i) cannot at that time make payments on the arrears, or

(ii) reasonably requires time to obtain counsel, provide additional financial or other information to the court, or make specified payments on the arrears;

(e) requiring the deposit of a specified amount of money in the court or with a person the judge or master considers appropriate, to be held as security and for use in the event of a default in payment under the order of maintenance or an increase in the payment under a later order;

(f) requiring the deposit of security in a form other than money to ensure that payments are made under the order of maintenance;

(g) dismissing the proceedings.

Imprisonment served intermittently

57(3.1)     Where a judge or master makes an order of imprisonment under clause (3)(a), the imprisonment may be ordered to be served intermittently at such times as are specified in the order.

Burden of proof under clause (3)(a)

57(3.2)     For the purpose of clause (3)(a), the burden of proving that the default is not wilful is on the person in default.

Arrears due if default in payment plan

57(3.3)     Where a judge or master makes an order under clause (3)(c), upon failure to make any payment with respect to arrears by the date specified in the order, the full amount of the arrears specified in the order becomes due and payable.

Additional penalties

57(4)       Where a judge or master makes an order under clause (3)(b) or (c), the judge or master may at that time make one or more of the following orders:

(a) that upon failure to make any payment by a date specified in the order, the person in default be fined in an amount not exceeding $1000. for each default;

(b) repealed, S.M. 1995, c. 3, s. 8;

(c) that the person in default enter into a bond in a specified amount, with or without sureties who shall severally justify and be approved by the judge or master, conditioned for the fulfilment of the order; or

(d) repealed, S.M. 1995, c. 3, s. 8.

Continuation of adjourned hearing

57(4.1)     A hearing that is adjourned by a judge or master under clause (3)(d) after evidence has been adduced shall be continued before the same judge or master.

Disposition of security

57(5)       Where a person deposits an amount as security under clause (3)(e), any balance remaining undisbursed upon the discharge of the order shall be returned to the person together with interest and less such necessary administration costs as the judge or master deems fit.

Imprisonment for default in security

57(6)       Where a person fails to make a deposit under clause (3)(e) or (f), or to enter into a bond pursuant to an order under subsection (4), the judge or master that made the order may order the person to be imprisoned for a period not exceeding 30 days or until the deposit is made or the bond is entered into.

Appeal from master to Q.B. judge

57(7)       An order of a master under this section may, within 30 days after it is pronounced or within such further time as a judge may by order allow, be appealed to a judge of the Court of Queen's Bench and the appeal shall be based on the record of the evidence that resulted in the order under appeal.

Late payment hearing

57(8)       Whether or not any other enforcement proceedings have been taken or could be taken, where a person has made payments under an order after the due date thereof, the designated officer may issue a summons for that person to appear before a judge or master for a hearing to determine the cause of the late payments and after the hearing the judge or master may make any of the orders under subsection (3) or (4).

R.S.M. 1987 Supp., c. 16, s. 5; S.M. 1989-90, c. 46, s. 5 to 8; S.M. 1991-92, c. 29, s. 3 and 4; S.M. 1995, c. 3, s. 8; S.M. 2001, c. 31, s. 10 and 11; S.M. 2004, c. 14, s. 5.

Warrant by deputy registrar

57.1(1)     Where a person in default fails to appear before a deputy registrar as required by a summons under subsection 56(1) or by an undertaking given or a recognizance entered into under subsection 57.2(3) or (4), a deputy registrar may issue a warrant for the arrest of a person for the purpose of ensuring his or her attendance at a hearing under section 56 or 57.

Warrant by judge or master

57.1(2)     Where a person in default fails to appear before a judge or master as required by an order of the deputy registrar under clause 56(2)(b), by a summons under subsection 57(1) or by an undertaking given or a recognizance entered into under subsection 57.2(3) or (4), a judge or master may

(a) proceed with the hearing in the person's absence; or

(b) issue a warrant for the arrest of a person for the purpose of ensuring his or her attendance at a hearing under section 57.

S.M. 1991-92, c. 29, s. 5.

Definitions

57.2(1)     In this section,

"justice" means a judge of the Provincial Court, master, deputy registrar or justice of the peace; (« juge »)

"officer in charge" means the peace officer who is in charge of the lock-up or other place to which a person is taken after his or her arrest; (« responsable »)

"peace officer" means a peace officer as defined in the Criminal Code (Canada). (« agent de la paix »)

Person to be brought before justice

57.2(2)     Where under a warrant issued under subsection 57.1(1) or (2) a peace officer arrests, or an officer in charge has custody of, a person in default, the peace officer or officer in charge shall, as soon as practicable but in any event within 24 hours of the arrest, bring the person before a justice.

Release on undertaking

57.2(3)     The justice shall order that the person in default be released on giving an undertaking to appear, unless the designated officer shows cause why, for the purpose of ensuring the person's appearance at a hearing under section 56 or 57, the detention of the person or an order under subsection (4) is justified.

Release on recognizance

57.2(4)     Subject to subsection (3), the justice may order the release of the person in default on the person's entering into a recognizance to appear at a hearing under section 56 or 57 with such conditions and such sureties or deposits of money or valuable security, if any, as are appropriate in the circumstances, will ensure his or her appearance and are specified in the order.

Order for detention

57.2(5)     Where the designated officer shows cause why the detention of the person in default is justified to ensure his or her appearance at a hearing under section 56 or 57, the justice shall order the person to be detained in custody until the completion of the hearing in respect of which the warrant was issued.

S.M. 1991-92, c. 29, s. 5; S.M. 2005, c. 8, s. 14.

Appeal

57.3        A person in default or a designated officer may appeal from an order under subsection 57.2(3), (4) or (5) to a judge of the Court of Queen's Bench.

S.M. 1991-92, c. 29, s. 5.

Effect of imprisonment

58          Imprisonment does not discharge arrears of maintenance.

Filing order in Land Titles Office

59(1)       An order may be registered in any Land Titles Office in the province and, if so registered, is an order to which sections 9 and 21 of The Judgments Act apply.

Exemptions

59(2)       The exemptions provided by The Executions Act and The Judgments Act do not apply with respect to any process issued by a court to enforce an order.

Application of Garnishment Act

59(3)       The Garnishment Act applies with respect to any garnishment issued to enforce an order.

Definition of "registrar"

59.1(1)     In this section and section 59.2, "registrar" means registrar as defined in The Drivers and Vehicles Act.

Notice of possible action under H.T. Act

59.1(2)     Where a person who is required under an order enforced under this Part to make maintenance payments defaults in payment, the designated officer may give notice to the person that if the person does not comply with the requirements of this section action will be taken under section 273.1 of The Highway Traffic Act without further notice to the person.

Content of notice

59.1(3)     The notice shall advise that the action under The Highway Traffic Act will be taken if the person in default does not, within 30 days after the day the notice is served,

(a) propose to the designated officer a plan for payment of the arrears that the officer considers reasonable; or

(b) request the officer to arrange a hearing before a judge or master to determine payment of the arrears.

Service of notice

59.1(4)     The notice referred to in subsection (2) shall be served on the person in default

(a) personally; or

(b) by registered or certified mail addressed to the person in default at his or her last known address as shown in the records maintained by the designated officer, and when so mailed there is a rebuttable presumption that the notice was received by the person.

Hearing before judge or master

59.1(5)     Where, within the time referred to in subsection (3), a person in default requests that payment of the arrears be determined by a judge or master, the designated officer shall, for the purpose of considering and determining only the payment of arrears,

(a) set a hearing date before a judge or master and advise the person in default, or his or her lawyer, of the date, time and place of the hearing; or

(b) issue a summons for the person in default to appear at a hearing before a judge or master at a time and place specified in the summons.

Notice to registrar of non-compliance

59.1(6)     The designated officer may in accordance with the regulations give notice to the registrar for the purpose of section 273.1 of The Highway Traffic Act that the person in default

(a) did not respond to the notice under subsection (2) within the time referred to in subsection (3);

(b) did not within the time referred to in subsection (3) propose a plan that the officer considers reasonable or request that the payment of arrears be determined by a judge or master;

(c) failed to appear at a hearing under subsection (5); or

(d) defaulted in payment under a plan accepted by the officer or an order made by a judge or master pursuant to subsection (5).

Proposal for payment of arrears

59.1(7)     Where, after the designated officer gives notice to the registrar under subsection (6), the person in default proposes a payment plan that the officer considers reasonable, the officer shall take any action that he or she must take to implement the plan.

Notice to registrar of compliance

59.1(8)     The designated officer shall give further notice to the registrar in respect of a person referred to in a notice under subsection (6) when

(a) the person is no longer in default;

(b) the person is complying with an order made by a judge or master pursuant to subsection (5) or a proposal accepted by the officer under subsection (7); or

(c) the order is no longer enforced under this Part by the designated officer.

Regulations

59.1(9)     The Lieutenant Governor in Council may make regulations

(a) respecting the content of a notice under subsection (2);

(b) governing how the designated officer carries out his or her powers and duties under this section;

(c) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this section.

S.M. 1995, c. 3, s. 9; S.M. 2001, c. 31, s. 12; S.M. 2005, c. 37, Sched. A, s. 153.

Where person in default not served

59.2        Where the designated officer is unable to effect service of a notice referred to in subsection 59.1(2) on a person in default, the officer may give notice to the registrar for the purpose of section 273.2 of The Highway Traffic Act.

S.M. 1995, c. 3, s. 9.

Designated officer may apply for preservation order

59.3(1)     If the designated officer believes a person required to pay maintenance under an order is likely to evade, hinder or defeat the enforcement of an order by wasting, dissipating or disposing of assets that the person owns, possesses or controls, the designated officer may apply to the Court of Queen's Bench for an order preserving those assets.

Criteria for preservation orders

59.3(2)     Upon an application under subsection (1), a judge or master may make one or more of the orders in subsection (3) if the judge or master finds that the person required to pay maintenance may waste, dissipate or dispose of assets that he or she owns, possesses or controls in such a way as to evade, hinder or defeat the enforcement of an order.

Preservation orders

59.3(3)     A judge or master may make the following types of orders:

(a) an order directing the person required to pay maintenance, or any other person, to preserve any assets that the person required to pay maintenance owns, possesses or controls;

(b) an order requiring that the person required to pay maintenance deposit a specified amount of money in the court or with a person the judge or master considers appropriate, to be held as security and for use in the event of a default in payment under the order of maintenance;

(c) an order setting aside a non-arm's length transaction between the person required to pay maintenance and another person;

(d) such other order as he or she thinks fit.

Order made without notice

59.3(4)     An order under this section may be made without notice.

S.M. 2001, c. 31, s. 13.

Designated officer may file financing statement

59.4(1)     Where a person defaults in a maintenance payment, the designated officer may register, in the name of the designated officer on behalf of the person entitled to the payment, a financing statement in the Personal Property Registry, in the form and manner prescribed under The Personal Property Security Act, claiming an interest in collateral.

Lien and charge

59.4(2)     The interest of the person entitled to the payment, or of the designated officer, in respect of a financing statement registered under subsection (1) is a lien and charge on the property and assets of the person required to pay maintenance, for the amount of the arrears of maintenance

(a) at the time of registration; and

(b) which accrue after the financing statement is registered.

Perfection on registration under Personal Property Security Act

59.4(3)     Upon registration of a financing statement under subsection (1), the lien and charge arising under subsection (2)

(a) is deemed to be a security interest under The Personal Property Security Act on all personal property of the person in default, including proceeds and after-acquired personal property; and

(b) is deemed to have been perfected on the day

(i) the maintenance was due,

(ii) the enforcement provisions of this Part become applicable to the order, or

(iii) this section comes into force;

whichever occurs last.

Effect of registration under Personal Property Security Act

59.4(4)     Upon registration of a financing statement under subsection (1), the designated officer is deemed to be a secured party under The Personal Property Security Act, and the person in default is deemed to be a debtor under that Act.

Priority of lien and charge

59.4(5)     Despite any Act other than The Employment Standards Code but subject to subsections (6) and (7), a lien and charge under subsection (2) has priority and is payable in priority over any other claim or right in the property or assets of the person in default that exists after the lien and charge was perfected, including

(a) any claim or right of the Crown in right of Manitoba; and

(b) any lien, charge, encumbrance, assignment, including an assignment of book debts, debenture or other security of whatever kind of any person, and any security interest as defined in The Personal Property Security Act.

Priority of certain prior purchase money security interests

59.4(6)     A lien and charge under subsection (2) does not take priority over a purchase money security interest that is perfected

(a) before a financing statement is registered under subsection (1); or

(b) within 15 days after the day the person required to pay maintenance obtains possession of the collateral.

Priority of lien for tax collected and not remitted

59.4(7)     A lien and charge under subsection (2) does not take priority over a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act.

S.M. 2001, c. 31, s. 13; S.M. 2005, c. 40, s. 128.

Definitions

59.5(1)      In this section,

"authorized employee" means a person designated under subsection (2); (« employé autorisé »)

"business day" means a day on which the office of the designated officer is open during its regular hours of business; (« jour ouvrable »)

"claimant" means a person entitled to all or part of a lottery prize who makes a claim in Manitoba or has a Manitoba address; (« demandeur »)

"corporation" means the Western Canada Lottery Corporation and includes a corporation that is a successor to it; (« société »)

"lottery prize" means a prize in a lottery scheme that is a monetary prize of $1,001. or more, or a non-monetary prize having a fair market value of $1001. or more; (« prix de loterie »)

"lottery scheme" means a lottery scheme within the meaning of the Criminal Code (Canada), conducted and managed by the corporation; (« loterie »)

"lottery ticket" means a ticket, certificate, subscription form or other evidence of participation in a lottery scheme. (« billet de loterie »)

Authorized employee

59.5(2)     The corporation shall designate, in writing, one or more employees or officers of the corporation who are authorized by the corporation to obtain information from the records of the designated officer and carry out the obligations of the corporation under this section.

Authorized employee may search designated officer's records about persons in default

59.5(3)     The designated officer shall allow an authorized employee to search the names and other identifying information about persons in default of obligations to make payments under orders enforced under this Part, as contained in the records of the designated officer, for the purpose of determining if a claimant is one of those persons.

Corporation obtains name and identifying information about claimant

59.5(4)     When a claimant makes a claim for a lottery prize, the corporation shall

(a) obtain the names of all claimants for the lottery prize and any identifying and other information required in the regulations; and

(b) take possession of the lottery ticket.

Corporation searches records about persons in default

59.5(5)     Using the name and other identifying information about the claimant as authorized in the regulations, an authorized employee, on behalf of the corporation, shall search the records of the designated officer as provided in subsection (3) to determine if that claimant is a person who is in default.

If claimant listed in records about persons in default

59.5(6)     If a search of the records of the designated officer under subsection (5) indicates that the claimant is a person who is in default, the corporation shall

(a) immediately notify the designated officer in writing, in the manner set out in the regulations, of

(i) the name of, and identifying information about, the claimant and any other information required in the regulations, and

(ii) the particulars and value of the lottery prize being claimed by the claimant; and

(b) retain the lottery ticket and withhold payment or delivery of the lottery prize until the close of business at the office of the designated officer on the business day after the business day on which the designated officer receives notice under clause (a), unless the designated officer notifies the corporation in writing, in the manner set out in the regulations, that all or part of the lottery prize can be paid or delivered.

Substitution of lottery prize

59.5(7)     Where the designated officer requests that a monetary prize be substituted for a claimant's non-monetary prize, the corporation shall substitute a monetary prize.

Enforcement proceedings re lottery prize

59.5(8)      Whether or not other enforcement proceedings are being taken, the designated officer may take proceedings with respect to the lottery prize to obtain

(a) a garnishing order under section 4 or 13.1 of The Garnishment Act; or

(b) a writ of execution under The Executions Act.

Confidentiality

59.5(9)     No employee, officer or agent of the corporation shall use or disclose any information provided or obtained from the records of the designated officer except for the purposes of this section.

Immunity for acts in good faith

59.5(10)    No action or proceeding may be commenced against the corporation or an authorized employee for any act done in good faith in the performance of a duty or the exercise of a power under this section.

Regulations

59.5(11)     The Lieutenant Governor in Council may make regulations

(a) respecting information that is required or authorized to be obtained, used or included in a notification under this section;

(b) as to the manner in which a notification shall be provided under subsection (6).

S.M. 2001, c. 31, s. 13.

Appointment of receiver

60(1)       Where there is default in respect of an order, a judge or master, upon an application made by or on behalf of the person in whose favour the order was made, may appoint a receiver, to the extent of any payments due or accruing due under the order, for any of the following purposes:

(a) to collect any moneys due, owing or payable to, or to become due, owing or payable to, or earned or to be earned by, the person in default;

(b) to take all steps necessary to apply for and receive any benefit, credit, interest or entitlement available to the person in default;

(c) to take all steps necessary to take possession of and realize upon property in which the person in default has an interest or entitlement;

(d) to take all steps necessary to pursue any action that is available to the person in default;

(e) to take any other steps or be given any other authority that the judge or master considers necessary or advisable.

Appointment of receiver without formal application

60(2)       Where a person is before a judge or master for any purpose under this Act but other than under subsection (1), the judge or master, if satisfied that the person is in default in respect of an order, may there and then appoint a receiver under subsection (1) without prior application.

Exemptions under Garnishment Act

60(3)       Where a receiver is appointed under this section, the wages of the person against whom the order was made are exempt to the extent set out in The Garnishment Act, and that Act applies to the order appointing the receiver as though it were a garnishing order.

S.M. 2001, c. 31, s. 14.

Assets of a corporation or other person

60.1(1)     In this section, a reference to a person required to pay maintenance, or another person on his or her behalf, "exercising authority over a corporation or other person" is a reference to the situation where, with respect to assets that are legally owned or otherwise held by that corporation or other person,

(a) the person required to pay maintenance, or another person on his or her behalf, is using or otherwise dealing with or is in a position to use or otherwise deal with those assets in a manner that is or would be similar to that of a person who legally owns or otherwise holds the assets; or

(b) the person required to pay maintenance, or another person on his or her behalf, is in a position to compel or otherwise influence the corporation or other person

(i) to use or deal with the assets as directed by the person required to pay maintenance or another person on his or her behalf, or

(ii) to permit the person required to pay maintenance, or another person on his or her behalf, to use or otherwise deal with the assets in a manner that would be similar to that of a person who legally owns or otherwise holds the assets.

Application to Court of Queen's Bench

60.1(2)      If

(a) the person required to pay maintenance has defaulted with respect to a payment under an order; and

(b) with respect to assets legally owned or otherwise held by a corporation or other person, the designated officer is of the opinion that the person required to pay maintenance, or another person on his or her behalf, is exercising authority over the corporation or other person;

the designated officer may apply to a judge of the Court of Queen's Bench for an order directing that the assets are subject to garnishment or execution, as the case may be, for the purposes of paying the arrears under the order.

Application without notice

60.1(3)     An application made under subsection (2) may be made without notice.

Order

60.1(4)     If on hearing an application the judge finds that

(a) the person required to pay maintenance has defaulted in a payment required under an order; and

(b) with respect to the assets that are legally owned or otherwise held by a corporation or other person, the person required to pay maintenance, or another person on his or her behalf is exercising or has exercised authority over the corporation or other person as defined in subsection 60.1(1);

the judge may by order do one or more of the following:

(c) declare that the assets legally owned or otherwise held by a corporation or other person are assets of the person required to pay maintenance and direct that the assets or any specific portion of them are subject to garnishment, execution, or to an order of receivership under subsection 60(1), as the case may be, for the purposes of paying the arrears owed under the order;

(d) give such other direction or make such other order as the judge considers appropriate in the circumstances;

(e) award costs.

S.M. 2001, c. 31, s. 15.

No time limitation on enforcement of arrears

61(1)       Subject to subsection (4), no time limitation applies in respect of the enforcement and recovery of a lump sum of maintenance or periodic payments of maintenance in default under an order.

Death of maintenance debtor

61(2)       Where a person against whom an order was made dies and at the time of death any payments are in default, the amount in default is, subject to subsection (4), a debt of the estate and recoverable by the person entitled to the payments in the same manner as any other debt recoverable from the estate.

Death of person entitled to receive payments

61(3)       Where the person entitled to receive payments under an order dies, the personal representative of the deceased may, subject to subsection (4),

(a) recover for the estate of the deceased any payments in default at the time of the death; or

(b) sign and file a statement in a form satisfactory to the designated officer indicating that the provisions of this Part respecting enforcement by a designated officer apply to the order, with the necessary changes.

Remission of maintenance payments

61(4)       Where payments under an order are in default, a judge of the court that made the order may, on application, relieve the debtor or the estate of the debtor of the obligation to pay the whole or part of the amount in default if the judge is satisfied

(a) that having regard to the interests of the debtor or the estate of the debtor it would be grossly unfair and inequitable not to do so; and

(b) that having regard to the interests of the person entitled to the payments or the estate of that person, it is justified.

S.M. 1995, c. 3, s. 10; S.M. 2001, c. 31, s. 16.

Immunity for acts or omissions in good faith

61.1        No action or proceeding may be commenced or costs assessed against a designated officer for any act done in good faith in the performance of a duty or the exercise of a power under this Part, or for any neglect or default in the performance of the duty or the exercise of the power in good faith.

S.M. 1995, c. 3, s. 11.

PART VII

GENERAL

Rights are additional

62          The rights given under this Act are in addition to and not in substitution for any rights given under any other law.

Limitation period

63          No limitation period contained in any statute or law operates to bar or affect the right to take proceedings or to enforce any order made under this Act.

Definitions

64(1)       In this section,

"director" means the Director of Employment and Income Assistance appointed under The Employment and Income Assistance Act, or a person acting under his or her authority; (« directeur »)

"order" means an order as defined in Part VI. (« ordonnance »)

Order or agreement assignable

64(2)       An order or agreement for maintenance or support may be assigned to the director.

Notice of assignment

64(3)       If the director has an address for the person required to make payments under an order that has been assigned under subsection (2), the director shall notify the person of the assignment by regular lettermail at that address.

Rights of director

64(4)       The director is entitled to the payments due under the order and has the same right to be notified of and participate in any proceedings under this Act to vary, discharge, suspend or enforce payments, or arrears of payments under the order, as has the person who is entitled to the payments under the order.

S.M. 2001, c. 31, s. 17; S.M. 2004, c. 42, s. 29.

 

 
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