4th Session, 40th Legislature
This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.
Bill 33
THE FAMILY LAW REFORM ACT (PUTTING CHILDREN FIRST)
| Bilingual version (PDF) | Explanatory Note |
(Assented to )
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Family Law Act set out in Schedule A is hereby enacted.
Family Support Enforcement Act
The Family Support Enforcement Act set out in Schedule B is hereby enacted.
Court of Queen's Bench Amendment Act
The Court of Queen's Bench Amendment Act set out in Schedule C is hereby enacted.
Subject to subsection (2), this Act comes
into force on the day it receives royal assent.
Coming into force of Schedules
The Schedules to this Act come into force as provided in the coming into force section at the end of each Schedule.
THE FAMILY LAW ACT
TABLE OF CONTENTS
Section
PART 1
INTRODUCTORY PROVISIONS
1 Definitions
2 Best interests of the child
3 Minimizing impact on child
4 Child's views to be considered
5 Court may direct evaluation
6 Resolving disputes by agreement, negotiation, etc.
PART 2
DETERMINING PARENTAGE
7 Overview of this Part
DIVISION 1
INTRODUCTORY PROVISIONS
8 Definitions
9 Date of conception
10 Providing reproductive material
11 Parentage to be determined by this Part
12 Donor not automatically parent
DIVISION 2
HOW PARENTAGE IS DETERMINED
13 Parentage presumed if sexual intercourse
14 Parentage if assisted reproduction without a surrogate
15 Declaratory order re parentage — general
16 Declaratory order — surrogacy agreement
17 Declaratory order — posthumous conception
18 Declaratory order — posthumous conception with a surrogate
19 Declaratory order — additional parent
DIVISION 3
GENERAL PROVISIONS
20 Effect of new evidence on a declaratory order
21 Parentage tests
22 No distinction between child born inside or outside marriage
23 Void and voidable marriages
24 Orders filed with Vital Statistics
DIVISION 4
DECLARATORY ORDERS MADE OUTSIDE MANITOBA
25 Definitions
26 Recognition of orders made in Canada
27 Recognition of orders made outside Canada
28 Recognition of findings made outside Manitoba
29 Order filed with Vital Statistics
PART 3
CHILD CUSTODY, ACCESS AND GUARDIANSHIP
DIVISION 1
INTRODUCTORY PROVISIONS
30 Best interests of the child
31 No application during adoption placement period
DIVISION 2
PARENTAL CUSTODY AND ACCESS
32 Joint rights of parents in children
33 Order for custody or access
34 Variation of order for custody or access
35 Non-custodial parent's right to school and medical records
36 Order to locate and apprehend a child
DIVISION 3
GUARDIANSHIP
37 Guardianship order
DIVISION 4
ACCESS BY GRANDPARENTS AND OTHERS
38 Definition of "family member"
39 Application for access by grandparents and others
40 Order for access
DIVISION 5
NOTICE OF CHANGE OF RESIDENCE
41 Notice of change of residence
DIVISION 6
RELOCATION
42 Meaning of "relocation"
43 Notice of proposed relocation
44 Relocation unless objection
45 Court order
46 Power of court if multiple proceedings
47 Variation of custody, access or guardianship order
PART 4
CHILD AND SPOUSAL SUPPORT
DIVISION 1
DEFINITIONS
48 Definitions
DIVISION 2
CHILD SUPPORT
49 Duty to support child
50 Duty to provide financial information
51 Child support order
52 If parentage an issue
53 Order to vary, suspend or terminate child support order
54 Child support agreement
DIVISION 3
RECALCULATION OF CHILD SUPPORT PAYMENTS
55 Definitions re recalculation
56 Child support recalculation service
57 Recalculation
58 Prohibiting recalculation
59 Right to object to recalculation
60 Appointing recalculation service
61 Obtaining financial information to recalculate
DIVISION 4
SPOUSAL SUPPORT
62 Definition — "spouse"
63 Application of this Division to certain divorced spouses
64 Duty of mutual support
65 Onus of self-support after separation
66 Duty to provide financial information
67 Effect of separation agreement on support order
68 Spousal support order
69 Factors in making support order
70 Priority of child support
71 Review of spousal support
72 Order to vary, suspend or terminate spousal support order
DIVISION 5
GENERAL SUPPORT MATTERS
73 Matters that may be provided for in support orders
74 Enforcement of support orders
75 Assignment of support orders
76 Compensation for late support payments
77 Order cancelling arrears
78 Regulations
PART 5
MISCELLANEOUS ORDERS RE SPOUSES AND PARTNERS
79 Order of exclusive occupation of family home
80 Order respecting conduct
81 Order to vary or terminate
82 Order of non-cohabitation
83 Finding re length of common-law relationship
PART 6
GENERAL POWERS OF THE COURT
84 Jurisdiction of Queen's Bench and Provincial Court
85 Conduct of proceedings
86 Exclusion of the public or from publication
87 Spouse a compellable witness
88 Reconciliation efforts
89 Appeals
90 Interim order
91 Consent order
92 Incorporating terms of agreement in court order
93 Terms and conditions of orders
94 Review of order
95 Order to provide address
PART 7
MISCELLANEOUS PROVISIONS
96 Offence
97 Regulations
98 No limitation period
99 Rights are additional
PART 8
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMING INTO FORCE
100 Transitional re Family Maintenance Act
101 Transitional re Child and Family Services Act
102 Transitional regulations
103 -129 Consequential amendments
130 Repeal
131 C.C.S.M. reference
132 Coming into force
THE FAMILY LAW ACT
PART 1
INTRODUCTORY PROVISIONS
Contents
1 Definitions
2 Best interests of the child
3 Minimizing impact on child
4 Child's views to be considered
5 Court may direct evaluation
6 Resolving disputes
DEFINITIONS
The following definitions apply in this Act.
"common-law partner" means either of two persons who are not married to each other who
(a) have cohabited in a conjugal relationship for a period of at least three years, or for a period of at least one year if they are together the parents of a child; or
(b) together have registered a common-law relationship under The Vital Statistics Act. (« 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 (Family Division) or, to the extent that it has jurisdiction under subsection 84(2), the Provincial Court (Family Division). (« tribunal »)
"custody" means the care and control of a child by a parent of the child or a person in loco parentis to the child. (« garde »)
"domestic violence" means domestic violence within the meaning of The Domestic Violence and Stalking Act. (« violence familiale »)
"government" includes an agency of the government. (« gouvernement »)
"marriage-like relationship" means a relationship outside marriage in which two persons live together in a conjugal relationship, and includes a common-law relationship. (« cohabitation maritale »)
"parent" means a parent under Part 2 or an adoptive parent. (« parent »)
"spouse" means a person who is married to another person. (« conjoint »)
"stalking" means stalking within the meaning of The Domestic Violence and Stalking Act. (« harcèlement criminel »)
BEST INTERESTS OF THE CHILD
In making an order under this Act, the most important consideration for the court must be the best interests of the child.
Subsection (1) does not apply to a declaratory order of parentage under Part 2, except an order under section 19 (additional parent).
If a child might be affected by a proceeding under this Act, a court must
(a) consider the impact of the proceeding on the child; and
(b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties.
Child's views to be considered
The court may consider the views and preferences of a child when it is satisfied that the child is able to understand the nature of the proceedings and that doing so would not be harmful to the child.
The court may, if it considers it necessary to determine a child's best interests in a proceeding under this Act,
(a) appoint a family evaluator under section 49 of The Court of Queen's Bench Act or section 20.4 of The Provincial Court Act; or
(b) appoint a social worker or other person to evaluate a matter.
A person appointed under subsection (1) must not have had any previous connection with the parties, unless it is someone to whom each party consents.
If a party refuses to co-operate with a person appointed under subsection (1), the person appointed must report that fact to the court, and the court may draw any inference it considers appropriate.
ALTERNATIVE DISPUTE RESOLUTION
Resolving disputes by agreement, negotiation, etc.
To the extent that it is appropriate to do so, parties to a family law dispute must try to resolve the dispute by reaching an agreement or by using a dispute resolution process such as negotiation, mediation or collaborative law, before making an application to court under this Act.
In particular, when the family law dispute involves a child, the parties to the dispute must act in a way that strives to
(a) minimize conflict between the parties;
(b) promote co-operation between the parties, if appropriate; and
(c) meet the best interests of the child.
PART 2
DETERMINING PARENTAGE
Contents
7 Overview of this Part
DIVISION 1 — INTRODUCTORY PROVISIONS
8 Definitions
9 Date of conception
10 Providing reproductive material
11 Parentage to be determined by this Part
12 Donor not automatically parent
DIVISION 2 — HOW PARENTAGE IS DETERMINED
13 Parentage presumed if sexual intercourse
14 Parentage if assisted reproduction without a surrogate
15 Declaratory order re parentage — general
16 Declaratory order — surrogacy agreement
17 Declaratory order — posthumous conception
18 Declaratory order — posthumous conception with a surrogate
19 Declaratory order — additional parent
DIVISION 3 — GENERAL PROVISIONS
20 Effect of new evidence on a declaratory order
21 Parentage tests
22 No distinction between child born inside or outside marriage
23 Void and voidable marriages
24 Orders filed with Vital Statistics
DIVISION 4 — DECLARATORY ORDERS MADE OUTSIDE MANITOBA
25 Definitions
26 Recognition of orders made in Canada
27 Recognition of orders made outside Canada
28 Recognition of findings made outside Manitoba
29 Order filed with Vital Statistics
This Part sets out how a child's parents are determined depending on the circumstances of the child's conception and birth.
1. For a child conceived by sexual intercourse, parentage is determined under section 13.
2. For a child conceived as a result of assisted reproduction where there is no surrogate, parentage is determined under section 14.
3. For a child conceived as a result of assisted reproduction where there is a surrogacy agreement, parentage is determined by a court order under section 16.
4. If reproductive material or an embryo was provided by a deceased person, parentage of a child conceived after the person's death is determined by a court order under section 17 or 18.
In some cases of assisted reproduction, there may be an agreement between the birth mother and others that the child is to have more than two parents. Section 19 allows the court to make an order to that effect if it is in the best interests of the child.
This Part also contains general provisions respecting parentage, including such things as genetic testing and the recognition of declaratory orders and findings of parentage made outside Manitoba.
DIVISION 1
INTRODUCTORY PROVISIONS
The following definitions apply in this Part.
"assisted reproduction" means a method of conceiving a child other than by sexual intercourse, such as by artificial insemination or in vitro fertilization. (« procréation assistée »)
"birth mother" means a person who gives birth to a child, regardless of whether her own reproductive material was used in the child's conception. (« mère naturelle »)
"child" includes a child over the age of 18. (« enfant »)
"donor" means a person who provides reproductive material or an embryo for use in assisted reproduction, other than for his or her own reproductive use. (« donneur »)
"embryo" means a human organism during the first 56 days of its development following fertilization or creation, excluding any time during which its development has been suspended, and includes any cell derived from such an organism that is used for the purpose of creating a human being. (« embryon »)
"intended parent" or "intended parents" means a person who intends, or two persons who are married or in a marriage-like relationship who intend, to be the parent or parents of a child and who, for that purpose, make an agreement
(a) described in section 16 with a surrogate; or
(b) under subsection 19(2) (additional parent). (« parent potentiel » et « parents potentiels »)
"reproductive material" means a human sperm or ovum or another human cell or a human gene, and includes a part of any of them. (« matériel reproductif »)
"surrogate" means a birth mother who is a party to an agreement described in section 16. (« mère porteuse »)
A child born as a result of assisted reproduction is deemed to have been conceived on the day the reproductive material or embryo was implanted in the birth mother.
Providing reproductive material
A reference in this Part to a person providing reproductive material or an embryo is a reference to the provision of
(a) the person's own reproductive material; or
(b) an embryo created with the person's own reproductive material.
Parentage to be determined by this Part
For all purposes of the law of Manitoba, the following rules apply:
1. A person is the child of his or her parents.
2. A child's parent is a person determined to be the child's parent under this Part or The Adoption Act.
3. The relationship of parent and child and kindred relationships flowing from that relationship must be determined under this Part.
4. A child has only two parents unless there is a court order under section 19.
References in enactments and instruments
If an enactment or an instrument refers to a person by describing the person's relationship to another by birth, blood or marriage, the reference must be read to include a person who comes within that relationship because of a parent-child relationship as determined under this Part.
Despite subsections (1) and (2), this Part must not be interpreted as affecting an instrument, or a disposition of property, made before this Part comes into force.
If a child is adopted, the child's parents are as set out in The Adoption Act and this Part does not apply.
Donor not automatically parent
When a child is born as a result of assisted reproduction, a donor who provided reproductive material or an embryo
(a) is not, by reason only of the donation, the child's parent;
(b) may not be declared by a court, by reason only of the donation, to be the child's parent; and
(c) is the child's parent only if determined, under this Part, to be the child's parent.
DIVISION 2
HOW PARENTAGE IS DETERMINED
PARENTAGE PRESUMED IF SEXUAL INTERCOURSE
Parentage if sexual intercourse
On the birth of a child conceived by sexual intercourse, the child's parents are the birth mother and the child's biological father.
Unless the contrary is proved, a male person is presumed to be a child's biological father in any of the following circumstances:
1. He was married to or in a marriage-like relationship with the child's birth mother on the day of the child's birth.
2. He was married to the child's birth mother and, in the 300-day period before the child's birth, the marriage was ended
(a) by his death;
(b) by a judgment of divorce; or
(c) as referred to in section 23 (void or voidable marriage).
3. He was in a marriage-like relationship with the child's birth mother and, in the 300-day period before the child's birth, the relationship ended for any reason.
4. He married the child's birth mother after the child's birth and acknowledged that he is the father.
5. He and the child's birth mother have acknowledged in writing that he is the child's father.
6. He has been found or recognized by a court, whether in Manitoba or otherwise, to be the child's father in a proceeding other than under this Part.
No presumption in certain cases
If more than one person may be presumed to be a child's biological father, no presumption of paternity may be made.
PARENTAGE IF ASSISTED REPRODUCTION
WITHOUT A SURROGATE
Parentage if assisted reproduction without a surrogate
On the birth of a child conceived through assisted reproduction without a surrogate, the child's birth mother is a parent of the child.
In addition to the child's birth mother, a person who was married to or in a marriage-like relationship with the birth mother when the child was conceived is also a parent of the child unless there is proof that, before the child was conceived, the person
(a) did not consent to be the child's parent; or
(b) withdrew a consent to be the child's parent.
Exception re posthumous conception
This section does not apply if conception took place posthumously as described in section 17.
DECLARATORY ORDER RE PARENTAGE —
GENERAL
Declaratory order respecting parentage — general
Subject to sections 16 to 19 (which make express provision for certain cases of assisted reproduction), any person who has an interest may apply to the court for a declaratory order that a person is or is not a parent of a child, whether born or unborn.
Notice of an application must be given to the Director of Child and Family Services under The Child and Family Services Act for the purpose of ensuring that the child has not been placed for adoption.
No hearing if child placed for adoption
The court must not hear an application under this section if, in response to a notice under subsection (2), the Director certifies to the court that
(a) the child has been placed for adoption; and
(b) more than 21 days have elapsed since a parent of the child consented to the child's adoption under The Adoption Act or signed a voluntary surrender of guardianship under The Child and Family Services Act.
If the court finds that a person is or is not a parent of a child, the court may make a declaratory order to that effect.
Order if child or parent deceased
The court may make a declaratory order under this section despite the death of the child or person who is the subject of the application, or both.
When an application concerns a child conceived by sexual intercourse or through assisted reproduction under section 14 (without a surrogate), the court
(a) must give effect to any applicable presumption or rule set out in sections 13 and 14;
(b) may consider evidence of the biological paternity of a child conceived by sexual intercourse; and
(c) may consider evidence as to whether there was consent to parentage under subsection 14(2) if the child was born as a result of assisted reproduction.
DECLARATORY ORDER —
SURROGACY AGREEMENT
The intended parent or intended parents under a surrogacy agreement may apply to the court for a declaratory order that they are the parent or parents of a child born to the surrogate.
Conditions for making an order
The following conditions must be met before an order is made:
1. Before the child was conceived through assisted reproduction, an agreement was made between a potential surrogate and the intended parent or intended parents.
2. The agreement provides that the potential surrogate will be the birth mother of a child conceived through assisted reproduction and that, on the child's birth,
(a) the surrogate will not be a parent of the child;
(b) the surrogate will surrender the child to the intended parent or intended parents; and
(c) the intended parent or intended parents will be the child's parent or parents.
3. The intended parent, or one or both intended parents, provided reproductive material or the embryo used in the assisted reproduction.
An application must be made within 30 days after the child is born, unless the court extends the time.
The court must grant the order sought under this section if it is satisfied that
(a) the conditions set out in subsection (2) have been met;
(b) before the child was conceived, no party to the surrogacy agreement withdrew from the agreement; and
(c) after the child's birth,
(i) the surrogate gave written consent to surrender the child to the intended parent or intended parents, and
(ii) the intended parent or intended parents took the child into their care.
Surrogate's consent may be waived
The court may waive the surrogate's consent required under subclause (4)(c)(i) if the surrogate
(a) is deceased or incapable of giving consent; or
(b) cannot be located after reasonable efforts have been made to locate her.
Agreement not evidence of consent
An agreement under subsection (1) is not consent for the purposes of subclause (4)(c)(i) but may be used as evidence of the parties' intentions respecting the child's parentage.
DECLARATORY ORDER — POSTHUMOUS
CONCEPTION
A person who was married to or in a marriage-like relationship with a deceased person referred to in subsection (2) at the time of death may apply to the court for a declaratory order that he or she and the deceased person are the parents of a posthumously conceived child, whether born or unborn.
|
Example A dying man wishes to father a child. He banks his sperm so that his female spouse or partner can use it to conceive a child after he dies. Example Two females, A and B, are married or in a marriage-like relationship. A is dying and wishes to be the parent of a child. She provides an egg that is subsequently fertilized by a sperm donor, and the resulting embryo is implanted in B after A's death. |
Conditions for making an order
The following conditions must be met before an order is made:
1. The child was conceived through assisted reproduction without a surrogate.
2. The deceased person who provided the reproductive material or embryo used in the assisted reproduction did so for his or her own reproductive use and died before the child was conceived.
3. There is proof that the deceased person
(a) gave written consent allowing his or her spouse or other person with whom the deceased was in a marriage-like relationship to use his or her reproductive material or embryo after the deceased's death;
(b) gave written consent to be the parent of a child conceived after the person's death; and
(c) did not withdraw either consent before death.
An application must be made within 30 days after the child is born, unless the court extends the time.
The court must grant the order sought under this section if it is satisfied that the conditions set out in subsection (2) have been met.
DECLARATORY ORDER — POSTHUMOUS
CONCEPTION WITH A SURROGATE
A person who was married to or in a marriage-like relationship with a deceased person at the time of death may apply to the court for a declaratory order that he or she and the deceased person are the parents of a posthumously conceived child born to a surrogate.
|
Example A dying man wishes to father a child. He banks his sperm so that it can be used to conceive a child after he dies. His female spouse or partner cannot carry a child herself so she uses the sperm to conceive a child, after his death, with a surrogate. |
Conditions for making an order
The following conditions must be met before an order is made:
1. There is a surrogacy agreement that meets the requirements of subsection 16(2).
2. An intended parent who provided reproductive material or an embryo for use in the child's conception died before the child was conceived by way of a surrogate.
3. There is proof that the deceased person consented as required by item 3 of subsection 17(2).
An application must be made within 30 days after the child is born, unless the court extends the time.
The court must grant the order sought under this section if it is satisfied that
(a) the conditions set out in subsection (2) have been met;
(b) the deceased intended parent provided reproductive material or an embryo that was used in the child's conception;
(c) before the child was conceived, no party to the surrogacy agreement withdrew from the agreement; and
(d) after the child's birth,
(i) the surrogate gave written consent to surrender the child to the intended parent, and
(ii) the intended parent took the child into his or her care.
DECLARATORY ORDER — ADDITIONAL
PARENT
On application, a court may make a declaratory order that a child conceived through assisted reproduction has an additional parent.
|
Example Two females, A and B, are married or in a marriage-like relationship. A male friend provides A with sperm to conceive a child. A and B make an agreement with the male friend that when the child is born all three of them will be the child's parents. Example A birth mother agrees to carry a child for a couple who intend to be the child's parents. The birth mother and the intended parents make an agreement that when the child is born all three of them will the child's parents. |
An order may be made only if there is an agreement that meets these requirements:
1. It is made before a child is conceived through assisted reproduction.
2. It is made between
(a) the birth mother, the birth mother's spouse or person with whom she is in a marriage-like relationship, and a person who will provide reproductive material or an embryo; or
(b) the birth mother and the intended parent or intended parents if at least one intended parent will provide reproductive material or an embryo.
3. It provides that the potential birth mother will be the birth mother and that, on the child's birth, the parties to the agreement intend to be the child's parents.
Any party to an agreement may apply to court for a declaratory order respecting the parentage of the child.
If a party to an agreement dies after the child is conceived but before a declaratory order is made respecting the child's parentage, any other party may make or continue an application under this section seeking a declaratory order that includes the deceased party to the agreement as a parent.
An application must be made within 30 days after the child is born, unless the court extends the time.
The court may grant the order sought under this section if it is satisfied that
(a) there is an agreement that complies with subsection (2);
(b) before the child was conceived, no party to the agreement withdrew from the agreement; and
(c) the order is in the child's best interests.
DIVISION 3
GENERAL PROVISIONS
Effect of new evidence on a declaratory order
On application, the court may confirm or set aside a declaratory order that was made under this Part, or make a new order, if evidence that was not available at the previous hearing becomes available.
Rights and property interests not affected
Setting aside an order under subsection (1) does not affect rights and duties that have already been exercised or interests in property that have already been distributed.
Definition — "parentage tests"
In this section, "parentage tests" means tests used to identify inheritable characteristics, including
(a) human leukocyte antigen tests;
(b) tests of the deoxyribonucleic acid (DNA); and
(c) any other test the court considers appropriate.
At the request of a party to an application under this Part, the court may make an order granting leave to have a tissue or blood sample, or both, taken from a named person for the purpose of conducting parentage tests and to submit the results in evidence.
No tissue or blood sample may be taken from a person without the person's consent.
If a person named in an order under subsection (2) is too young to consent, consent may be given by the person's parent or guardian.
If a person refuses to give a tissue or blood sample for the purpose of conducting parentage tests or if a required consent is not given, the court may draw any inference it considers appropriate.
An order under subsection (2) may require a party to pay all or part of the cost of the parentage tests.
No distinction between child born inside or outside marriage
There is no distinction between the status of a child born inside marriage and a child born outside marriage.
For the purposes of this Part, if a marriage between two people is void but
(a) one or both of them went through the form of marriage in good faith; and
(b) they lived together afterwards;
they are deemed to have been married during the period they were living together, and the marriage is deemed to have ended when they stopped living together.
For the purposes of this Part, if a voidable marriage is declared a nullity, the persons who went through the form of marriage are deemed to have been married until the date of the declaratory order of nullity.
Orders to be filed with Vital Statistics
The registrar or clerk of the court must file in the office of the Director of Vital Statistics a statement respecting every declaratory order of parentage made under this Part.
Acknowledgment of paternity may be filed
A written acknowledgment of paternity referred to in item 5 of subsection 13(2) may be filed in the office of the Director of Vital Statistics.
DIVISION 4
DECLARATORY ORDERS MADE OUTSIDE MANITOBA
The following definitions apply in this Division.
"extra-provincial declaratory order" means an order of an extra-provincial tribunal that declares whether a person is a child's parent. (« ordonnance déclaratoire extraprovinciale »)
"extra-provincial finding" means a finding as to whether a person is a child's parent that is made incidentally in the determination of another issue by an extra-provincial tribunal, and that is not an extra-provincial declaratory order. (« décision extraprovinciale »)
"extra-provincial tribunal" means a court or tribunal, outside Manitoba, that has authority to make
(a) orders declaring whether a person is a child's parent; or
(b) findings as to whether a person is a child's parent. (« tribunal extraprovincial »)
Recognition of Canadian extra-provincial declaratory orders
Subject to subsection (2), a court must recognize an extra-provincial declaratory order made in Canada and, once recognized, the order has the same effect as if it were a declaratory order under this Part.
Declining to recognize an order
A court may decline to recognize an extra-provincial declaratory order made in Canada and make an order under this Part if
(a) evidence becomes available that was not available during the proceeding at which the extra-provincial declaratory order was made; or
(b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress.
Recognition of non-Canadian extra-provincial declaratory orders — required documents
An application for recognition of an extra-provincial declaratory order made outside Canada must include the following:
(a) a certified copy of the extra-provincial declaratory order;
(b) the opinion of a lawyer authorized to practise in Manitoba stating that the extra-provincial declaratory order is entitled to recognition under Manitoba law;
(c) a sworn statement by a lawyer or public official in the extra-provincial jurisdiction as to the effect of the extra-provincial declaratory order.
A certified copy under clause (1)(a) or sworn statement under clause (1)(c) that is not in English or French must be accompanied by a translation into English or French, authenticated as being accurate by a certificate of the translator.
Recognition of non-Canadian extra-provincial declaratory orders
Subject to subsection (4), a court must recognize an extra-provincial declaratory order made outside Canada and, once recognized, the order has the same effect as if it were a declaratory order under this Part if, at the time the extra-provincial declaratory order or the application for the order was made, the child, or at least one of the child's parents,
(a) was habitually resident in the jurisdiction of the extra-provincial tribunal; or
(b) had a real and substantial connection with the jurisdiction of the extra-provincial tribunal.
Declining to recognize an order
A court may decline to recognize an extra-provincial declaratory order made outside Canada and make an order under this Part if
(a) evidence becomes available that was not available during the proceeding at which the extra-provincial declaratory order was made;
(b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress; or
(c) the extra-provincial declaratory order is contrary to public policy.
Recognition of extra-provincial findings
A court must recognize an extra-provincial finding made
(a) in Canada; or
(b) outside Canada if the finding was made by an extra-provincial tribunal with jurisdiction, as determined by the conflict of laws rules of Manitoba, to determine the matter in which the finding was made;
and, once recognized, the extra-provincial finding has the same effect as if it were a finding of parentage made in Manitoba under the same circumstances.
Order to be filed with Vital Statistics
If an extra-provincial declaratory order recognized under section 26 or 27 relates to a child born in Manitoba, the registrar or clerk of the court must file a certified copy of the declaratory order and the Manitoba order recognizing it in the office of the Director of Vital Statistics.
Filing of order made outside Canada
In the case of an extra-provincial declaratory order made outside Canada, the copies filed under subsection (1) must be accompanied by a certified copy of the statement referred to in clause 27(1)(c) and any translation referred to in subsection 27(2).
PART 3
CHILD CUSTODY, ACCESS AND GUARDIANSHIP
Contents
DIVISION 1 — INTRODUCTORY PROVISIONS
30 Best interests of the child
31 No application during adoption placement period
DIVISION 2 — PARENTAL CUSTODY AND ACCESS
32 Joint rights of parents in children
33 Court order for custody or access
34 Variation of order for custody or access
35 Non-custodial parent's right to school and medical records
36 Order to locate and apprehend a child
DIVISION 3 — GUARDIANSHIP
37 Guardianship order
DIVISION 4 — ACCESS BY GRANDPARENTS AND OTHERS
38 Definition of "family member"
39 Application for access by grandparents and others
40 Order for access
DIVISION 5 — NOTICE OF CHANGE OF RESIDENCE
41 Notice of change of residence
DIVISION 6 — RELOCATION
42 Meaning of "relocation"
43 Notice of proposed relocation
44 Relocation unless objection
45 Court order
46 Power of court if multiple proceedings
47 Variation of custody, access or guardianship order
DIVISION 1
INTRODUCTORY PROVISIONS
In making an order under this Part respecting custody, access or guardianship, the court must consider the best interests of the child only.
To determine what is in the best interests of a child under this Part, the court must consider all of the child's needs and circumstances, including the following:
1. The nature, quality and stability of the relationship between
(a) the child and each person seeking custody, access or guardianship; and
(b) the child and other significant individuals in the child's life.
2. The child's physical, psychological, educational, social, moral and emotional needs, including the need for stability, taking into consideration the child's age and stage of development.
3. The effect on the child of any domestic violence, including consideration of
(a) the safety of the child and other family and household members who care for the child;
(b) the child's general well-being;
(c) whether the person who perpetrated the domestic violence is able to care for and meet the child's needs; and
(d) the appropriateness of making an order that would require persons who have custody, access or guardianship to communicate and co-operate on issues affecting the child.
4. The ability and willingness of each person who has custody, access or guardianship to communicate and co-operate on issues affecting the child.
5. The willingness of each person seeking custody or guardianship to facilitate the relationship between the child and another parent or person who has custody or access.
6. Any special needs of the child, including special needs for care, treatment or education.
7. The proposed plan of care for the child, including the capacity of a person seeking custody, access or guardianship to provide a safe home, adequate food, clothing and medical care for the child.
8. The history of the care arrangements for the child.
9. The effect on the child of any disruption of the child's sense of continuity.
10. The views and preferences of the child when the court considers it appropriate to ascertain them.
11. The child's cultural, linguistic, religious and spiritual upbringing and heritage.
12. The effect on the child of any delay in the final disposition of the proceedings.
13. When an application for access is made under section 39 (grandparents and others),
(a) the nature of any pre-existing relationship between the applicant and the child; and
(b) if the applicant is a grandparent, the benefit that a child can have from a positive, nurturing relationship with a grandparent.
No application during adoption placement period
When a child has been placed for adoption, no application for custody, access or guardianship in relation to the child may be made under this Part until an order of adoption is made or the placement is otherwise terminated.
DIVISION 2
PARENTAL CUSTODY AND ACCESS
Joint rights of parents in children
Subject to section 33, parents have joint rights in the custody of their children, unless the parents have never cohabited after the child is born, in which case the parent with whom the child resides has sole custody of the child.
COURT ORDER FOR CUSTODY OR ACCESS
Parent may apply for custody or access
A parent of a child may apply to the court for custody of the child or access to the child.
Person in loco parentis may apply
A person in loco parentis to a child may also apply for custody of the child or access to the child, if there is leave of the court and the child's parents are notified of the application.
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Information Note The term "in loco parentis" refers to a person who stands in the place of a parent to a child. The most common example is a step-parent. |
Unless required by item 3 of subsection 30(2) (domestic violence), in considering an application under this section, the court must not receive evidence of the conduct of a parent or person in loco parentis unless it is satisfied that the evidence bears directly on the person's ability to care for the child properly.
Court order for custody or access
On application under this section, the court may order
(a) that custody of the child be granted to only one parent or person in loco parentis, or to two or more of them jointly; or
(b) that a parent or person in loco parentis who is not granted custody be granted access, at the times and subject to any conditions that the court considers appropriate, for the purpose of visiting the child and fostering a healthy relationship between the parent or person in loco parentis and the child.
An order granting access may include, but is not limited to, provisions requiring all or any of the following:
(a) that the child spend specified periods of time with the person granted access, with or without supervision;
(b) that the person granted access be permitted to attend specified activities of the child;
(c) that the child be permitted to receive gifts from or send gifts to the person granted access, directly or indirectly;
(d) that the child and the person granted access be permitted to communicate with each other, directly or indirectly, whether orally, in writing, or by other means;
(e) that a person named in the order give the person granted access pictures of the child and information about the child's health, education and well-being.
VARIATION OF ORDER FOR CUSTODY OR ACCESS
Variation of order for custody or access
The court that made a custody or access order may vary or terminate it on application by a child's parent, or by a person in loco parentis who has custody of or access to a child.
Before making a variation order, the court must be satisfied that the child's needs or circumstances have changed since the original order was made or last varied, and it must consider the best interests of the child, as required by subsection 30(2) and as determined by reference to that change.
RIGHT TO SCHOOL AND MEDICAL RECORDS
Non-custodial parent's right to school and medical records
Unless the court orders otherwise, a parent who does not have custody of a child retains the same right as a parent who has custody to receive school, medical, psychological, dental and other reports affecting the child.
The right to receive records under subsection (1) is only a right to be provided with information and is not, unless the court orders otherwise, a right to be consulted about or to participate in the making of decisions by a parent who has custody.
ORDER TO LOCATE AND APPREHEND
A CHILD
Order to locate and apprehend a child, etc.
On an application for custody of or access to a child under this Act or the Divorce Act (Canada), the court may make one or both of the following orders:
(a) authorize the applicant or someone on his or her behalf to locate and apprehend the child, in which case section 9 of The Child Custody Enforcement Act applies with necessary changes;
(b) require a person, the government or other entity to give the court the address of the respondent or another person if it is contained in the records in the possession or control of the person, the government or other entity, in which case section 13 of The Child Custody Enforcement Act applies with necessary changes.
An application under clause (1)(b) must be served on the person, the government or other entity from whom the address is sought.
DIVISION 3
GUARDIANSHIP
On application by a person other than a parent or person in loco parentis to the child, the court may appoint the applicant as guardian of the person of the child.
When a guardianship order is made, the applicant is for all purposes the guardian of the person of the child and has the care and control of the child and is responsible for the child's support and well-being.
On application by a parent, guardian or person in loco parentis to the child, the court may remove a guardian appointed under this section, with or without appointing another guardian.
DIVISION 4
ACCESS BY GRANDPARENTS AND OTHERS
In this Division, "family member" of a child means a parent, step-parent, sibling, grandparent, aunt, uncle, cousin, guardian and a spouse or common-law partner of any of them.
Access by grandparents and others
The purpose of this section is
(a) to facilitate relationships between children and their grandparents and other family members, when those relationships are in the child's best interests;
(b) to recognize, on an application by a grandparent for access, that children can benefit from a positive, nurturing relationship with their grandparents; and
(c) to recognize that in exceptional circumstances children can benefit from non-family members being given access.
Application for access — grandparent or other family member
A grandparent or other family member who does not otherwise have a right to apply for access to the child may apply to the court for access to the child.
Application for access — non-family members
A person who is not a family member may apply to the court for access to the child under this section if there is leave of the court and the child's parents are notified.
On an application under section 39, the court may order that an applicant be granted access to a child in the manner, at the times and subject to any conditions that the court considers to be in the child's best interests as required by section 30.
When application by non-family member
Before granting an order for access by a non-family member under subsection 39(3), the court must be satisfied that exceptional circumstances warrant doing so.
An order for access may include, but is not limited to, the provisions set out in clauses 33(5)(a) to (e).
The court may, on application, vary or terminate an order for access, and the provisions of this section apply in relation to that application.
DIVISION 5
NOTICE OF CHANGE OF RESIDENCE
Before a person who has custody or guardianship of, or access to, a child changes their residence or the child's, the person must give written notice of the change to any other person who has custody or guardianship of, or access to, the child.
The notice must set out the date of the change and all available address and contact information about the new residence.
Exemption from notice requirement
On application, the court may grant an exemption from all or part of the requirement to give notice if it is satisfied that an exemption is
(a) in the child's best interests; or
(b) necessary to prevent a person who is planning to change their residence from being exposed to domestic violence or stalking.
An application for an exemption may be made without notice to any other party.
A person required to give a notice of relocation under section 43 need not give an additional notice under this section.
DIVISION 6
RELOCATION
In this Division, "relocation" means a change in the location of a child's residence — or the residence of a child's parent, guardian, or a person in loco parentis who has custody of a child — if the change can reasonably be expected to have a significant impact on the child's relationship with
(a) a parent;
(b) a guardian;
(c) a person in loco parentis who has custody of the child; or
(d) a person other than a parent who has court-ordered access to the child.
NOTICE OF PROPOSED RELOCATION
When a child's parent or guardian, or a person in loco parentis who has custody of the child, plans to relocate — whether with or without the child — he or she must give at least 60 days' written notice of the proposed relocation to the following persons:
(a) a parent;
(b) a guardian;
(c) a person in loco parentis who has custody of the child;
(d) a person other than a parent who has court-ordered access to the child;
(e) a person who has applied for custody or guardianship of, or access to, the child under this Act where the application is pending.
The notice of proposed relocation must include
(a) the date of the proposed relocation;
(b) the address of the proposed new residence; and
(c) a proposal for new care and access arrangements.
Exemption from notice requirement
On application, the court may grant an exemption from all or part of the requirement to give notice if it is satisfied that an exemption is
(a) in the child's best interests; or
(b) necessary to prevent a person who is planning to relocate from being exposed to domestic violence or stalking.
An application for an exemption
(a) may be made without notice to any other party; and
(b) in circumstances specified by regulation, must be heard on an urgent basis.
When 60-day notice does not apply
The 60-day notice period in this section does not apply if a court order specifies another period.
RELOCATION UNLESS OBJECTION
Child may be relocated unless objection
When a person gives notice under section 43 that he or she plans to relocate with a child, the child's relocation may occur on or after the date specified in the notice unless a person entitled to object under subsection (2) applies, within 30 days after receiving the notice, for an order to prohibit the child's relocation.
The following persons may object to the child's relocation:
(a) a parent of the child who has custody or access;
(b) a guardian of the child;
(c) a person in loco parentis who has custody of the child.
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Information Note A parent may have custody of a child: (1) under a court order, or (2) by operation of law, for example under section 32 of this Act (rights of parents in children). |
Relocation is not permitted under subsection (1) if there is an existing court order prohibiting it.
COURT ORDER RE RELOCATION
Definition of "relocating parent"
In this section, "relocating parent" means a parent or other person who has custody or guardianship of a child and who plans to relocate with the child.
Application to permit or prohibit relocation
On application by a relocating parent or by a person entitled to object under subsection 44(2), a court may make an order permitting or prohibiting the child's relocation.
Regardless of who makes the application, the relocating parent has an onus to prove that the relocation is in the child's best interests if
(a) another person who has custody or guardianship of, or court-ordered access to, the child cares for the child for at least one-third of the overnight stays over the course of a year, or comparable time, as determined by the regulations;
(b) the child is of an age and maturity where it is appropriate to consider the child's views, and the child expresses to an independent professional a clear preference against the relocation; or
(c) the relocating parent has acted unilaterally
(i) in contravention of a court order, or
(ii) after receiving a written notice of objection from a person entitled to object to the relocation.
Regardless of who makes the application, if a person entitled to object to the relocation seeks an order prohibiting the relocation, he or she has an onus to prove that the relocation is not in the child's best interests if
(a) he or she cares for the child for less than one-fifth of the overnight stays over the course of a year, or comparable time, as determined by the regulations; or
(b) the child is of an age and maturity where it is appropriate to consider the child's views, and the child expresses to an independent professional a clear preference in favour of the relocation.
If the circumstances are such that there is an onus under both subsection (3) and subsection (4), neither subsection applies.
Decision based on best interests and additional factors
In deciding an application under this section, the court must consider the best interests of the child as required by section 30 and the following additional factors:
(a) the reasons for the proposed relocation;
(b) whether the relocating parent has given notice of the relocation as required by section 43;
(c) whether a court order or a written agreement between the parties includes restrictions on relocation;
(d) whether the relocating parent has complied with any previous court order, agreement between the parties or any other obligation concerning the child, especially provisions in a court order or agreement respecting custody, access or guardianship;
(e) whether the relocating parent has proposed reasonable and workable arrangements for other persons who care for the child to have care of or access to the child after the relocation;
(f) whether any arrangements for care of or access to the child after relocation are realistic, affordable, and not too burdensome, given the court's power to attach terms and conditions to an order, including the sharing of travel and other access expenses between the parties.
In deciding an application under this section, the court must not consider whether the relocating parent would or would not move without the child in the event that relocation with the child were prohibited.
MULTIPLE PROCEEDINGS
Power of court if multiple proceedings
If an application for custody or guardianship of, or access to, a child is pending when a relocation application is made, the court may
(a) join the proceedings or hear them together;
(b) postpone the hearing of one proceeding until the other has been determined; or
(c) make any other order the court considers necessary for an orderly determination of the issues or proceedings.
VARIATION OF CUSTODY, ACCESS OR GUARDIANSHIP ORDER
Power of court to vary a custody, access or guardianship order
A court that makes an order under section 45 may (without a further application) vary any existing custody, access or guardianship order if it is satisfied that the child's needs or circumstances have changed as a result of the order under section 45.
PART 4
CHILD AND SPOUSAL SUPPORT
Contents
DIVISION 1 — DEFINITIONS
48 Definitions
DIVISION 2 — CHILD SUPPORT
49 Duty to support child
50 Duty to provide financial information
51 Child support order
52 If parentage an issue
53 Order to vary, suspend or terminate child support order
54 Child support agreement
DIVISION 3 — RECALCULATION OF CHILD SUPPORT PAYMENTS
55 Definitions re recalculation
56 Child support recalculation service
57 Recalculation
58 Prohibiting recalculation
59 Right to object recalculation
60 Appointing recalculation service
61 Obtaining financial information to recalculate
DIVISION 4 — SPOUSAL SUPPORT
62 Definition of "spouse"
63 Application of this Division to certain divorced spouses
64 Duty of mutual support
65 Onus of self-support after separation
66 Duty to provide financial information
67 Effect of separation agreement on support order
68 Spousal support order
69 Factors in making support order
70 Priority of child support
71 Review of spousal support
72 Order to vary, suspend or terminate spousal support order
DIVISION 5 — GENERAL SUPPORT MATTERS
73 Matters that may be provided for in support orders
74 Enforcement of support orders
75 Assignment of support orders
76 Compensation for late support payments
77 Order cancelling arrears
78 Regulations
DIVISION 1
DEFINITIONS
The following definitions apply in this Part.
"child" means a person
(a) who is under the age of 18 years and has not withdrawn from the charge of his or her parents; or
(b) who is 18 years of age or over and is unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents. (« enfant »)
"child support guidelines" means the Child Support Guidelines Regulation made under section 78. (« lignes directrices sur les pensions alimentaires pour enfants »)
"child support order" means an order made under section 51. (« ordonnance alimentaire au profit d'un enfant »)
"spousal support order" means an order made under section 68. (« ordonnance alimentaire au profit du conjoint »)
"support order" means a child support order or a spousal support order. (« ordonnance alimentaire »)
DIVISION 2
CHILD SUPPORT
DUTY TO SUPPORT
Duty of parents to provide support for child
Each parent of a child has a duty to provide reasonably for the child's support, whether or not the child is in that parent's custody.
Secondary duty to provide support
If the parents of a child fail to provide reasonably for the child's support, the following persons have a secondary duty to provide reasonably for the child's support:
1. A spouse has a duty respecting a child of the other spouse, while the child is in their care.
2. A person who is in a marriage-like relationship with another person has a duty respecting a child of the other person, while the child is in their care.
3. A person who stands in loco parentis to a child has a duty respecting that child.
A parent's duty to provide support for a child continues even if a guardian has been appointed for the child.
DUTY TO PROVIDE FINANCIAL INFORMATION
A parent, or another person found by the court to have a duty to provide for a child's support, whose income information is necessary to determine an amount of child support must — at the request of another parent or other person entitled to apply for support — provide them with financial information in accordance with the child support guidelines.
If a parent or other person fails to comply with a request for information under subsection (1), the court may do one or more of the following:
1. Order the person to comply with the request.
2. Order the person's employer, partner or principal, or any other person, to provide the information to the party requesting it, if the information is within their knowledge or is shown on a record in their possession or under their control.
3. Order the non-complying person to pay to the other parent or person an amount up to $5,000, in addition to or instead of any other penalty to which the person is liable under this Act.
On application by a party, the court may order that any information provided under this section — and any examination or cross-examination on the information — be kept confidential and not form part of the public record.
CHILD SUPPORT ORDER
The court may make an order requiring a parent or a person with a duty of support under section 49 to provide support for a child, on application by
(a) a parent or guardian of the child;
(b) another person on the child's behalf; or
(c) the child.
Order against more than one person
The court may make a child support order against more than one person.
Child support guidelines apply
A court making a child support order must do so in accordance with the child support guidelines, except as set out in subsections (4) to (7).
Agreement or other order to be taken into account
The court may award an amount different from that required by the child support guidelines if it is satisfied
(a) that special provision has been made for the child's benefit, directly or indirectly, including
(i) in an order, a judgment or a written agreement respecting the financial obligations of the persons with a duty under section 49, or
(ii) by a division or transfer of their property; and
(b) that applying the child support guidelines would result in an amount of child support that is inequitable given the special provision that has been made.
The court must record its reasons for making a decision under subsection (4).
With the parties' consent, the court may award an amount different from that required by the child support guidelines if it is satisfied that reasonable arrangements have been made for the child's support.
In determining whether reasonable arrangements have been made under subsection (6), the court must consider the child support guidelines, but it must not decide that arrangements are unreasonable solely because the amount required by the child support guidelines differs from those arrangements.
Parentage determined in a child support proceeding
In a proceeding for a child support order, the court may, regardless of whether an application is made under Part 2 (Determining Parentage), do one or more of the following:
(a) make a finding that a person is a parent of the child;
(b) make a declaratory order respecting the child's parentage under Part 2;
(c) make an order for parentage tests under section 21.
Effect of finding of parentage
A finding of parentage under clause (1)(a) has effect only for the purpose of a child support proceeding under this Part.
A party who requests parentage tests under this section must pay the cost of the tests unless the court orders otherwise.
ORDER TO VARY, SUSPEND OR TERMINATE
A CHILD SUPPORT ORDER
Application to vary, suspend or terminate order
On application, a court that made a child support order may vary, suspend or terminate the order or a part of it, and it may do so prospectively or retroactively.
Before making an order under subsection (1), the court must be satisfied that a change of circumstances as provided for in the child support guidelines has occurred since the original order was made or last varied.
Child support guidelines apply
A court making a variation order must do so in accordance with the child support guidelines, and the order may include any provision that under this Part could have been included in the original order.
Application of other provisions
Subsections 51(4) to (7) apply with necessary changes when an application is made to vary, suspend or terminate a child support order.
When an application is made to vary a child support order that
(a) was made before the child support guidelines came into force; and
(b) provides a single amount for the combined support of one or more children and a spouse or common-law partner;
the court must terminate the order and treat the application as an application for a child support order and an application for a spousal support order.
CHILD SUPPORT AGREEMENT
A child's parent or person with a duty to support a child may enter into a written agreement with
(a) another parent; or
(b) a person who has custody or guardianship of the child;
whereby the parent or person with a duty to support agrees to pay support for the child.
Order may still be applied for
An agreement does not prevent a person from applying for a child support order.
Order terminates previous agreement
A child support order terminates any previous agreement respecting child support.
DIVISION 3
RECALCULATION OF CHILD SUPPORT PAYMENTS
DEFINITIONS
The following definitions apply in this Division.
"administrative order" means an order made by the recalculation service under section 57. (« ordonnance administrative »)
"payor" means a person who is obligated to pay support for a child under a child support order. (« débiteur alimentaire »)
"recalculated amount" means the child support that a payor must pay under an administrative order made by the recalculation service under section 57. (« prestation rajustée »)
"recalculation service" means the child support recalculation service continued by section 56. (« Service de rajustement »)
"recipient" means a person who has a right to receive support for a child under a child support order. (« créancier alimentaire »)
RECALCULATION
Child support recalculation service
The child support recalculation service is continued, with responsibility for recalculating child support under this Division based on updated income information.
Recalculation of child support — administrative order
Subject to the regulations, the recalculation service may recalculate child support and make an administrative order stating the recalculated amount payable if
(a) the child support was originally determined in accordance with
(i) the child support guidelines, or
(ii) a defined formula that meets the requirements of the child support guidelines; and
(b) recalculation has been ordered by the court.
The recalculation service may recalculate child support only
(a) on the basis of updated income information; and
(b) in accordance with this Act and the child support guidelines.
Recalculated amount becomes the amount payable
Subject to section 59 (right to object), the recalculated amount stated in an administrative order is deemed for all purposes to be the amount payable under the child support order, effective on the date specified by the recalculation service. But payment of the recalculated amount may not be enforced until 31 days after the parties are notified under subsection (5).
Effective date may be retroactive
The date specified for payment under subsection (3) may be retroactive to a date no earlier than three months after the date specified by the court for recalculation to begin.
After recalculating child support, the recalculation service must give a copy of the administrative order stating the recalculated amount to the payor, the recipient and any person to whom the child support order has been assigned.
If a court determines that recalculation of child support by the recalculation service is inappropriate, the court may order that the amount of child support specified in the child support order is not to be recalculated by the recalculation service.
RIGHT TO OBJECT TO RECALCULATION
A payor or a recipient who does not agree with the recalculated amount stated in an administrative order may apply to the court that made the child support order for an order under section 53 to vary, suspend or terminate the child support order.
An application under subsection (1) must be made within 30 days after the parties are given a copy of the administrative order under subsection 57(5).
Application provided to recalculation service
The applicant must, within the 30 days mentioned in subsection (2), give a copy of the application to
(a) the recalculation service; and
(b) the director under The Family Support Enforcement Act.
When an application has been made under this section, the obligation to pay the recalculated amount stated in the administrative order is suspended pending the determination of the application, and the child support order continues in effect as if the recalculation had not been made.
If application withdrawn or dismissed
When an application under this section has been withdrawn or is dismissed by the court, the payor becomes liable to pay the recalculated amount stated in the administrative order as if the application had not been made.
OBTAINING FINANCIAL INFORMATION FOR RECALCULATION
Appointing recalculation service
A person, including an assignee of a child support order, may appoint the recalculation service to act on his or her behalf in requesting and receiving financial information necessary to recalculate child support under this Division.
Recalculation service may request information
The recalculation service may, in writing, request a person (including a payor or recipient), the government or another entity to provide, in writing, any information in their possession or control about a party to a child support order to be recalculated, respecting
(a) the payor's or recipient's address or whereabouts;
(b) the name and address of the payor's or recipient's employer; and
(c) the financial information required from the payor or recipient under this Act or the child support guidelines.
Access to database information
If information referred to in subsection (1) is in a database or other collection of information maintained by a government department or government agency, the recalculation service may enter into an arrangement with that department or agency giving the recalculation service access to the database or collection to the extent necessary to obtain the information.
Security safeguards re database
An arrangement for access must include reasonable security safeguards to protect the information against risks such as unauthorized access, use, disclosure and destruction.
A person, the government or another entity to whom a request is made under this section must, despite any other law, comply with the request within 21 days after receiving it.
If the recalculation service does not receive the requested information within the required 21 days, it may take any action it considers advisable, including the following:
(a) applying for a court order under subsection (6) to compel the information to be provided;
(b) recalculating the child support order on the basis of a party's deemed disclosure of updated income under subsection (7), if it is that party that has not provided the requested information.
On application by the recalculation service, the court may make an order compelling a person, the government or another entity to give the requested information to the recalculation service. The order may be made subject to any terms and conditions the court considers appropriate.
For the purpose of clause (5)(b), a party that has not provided the requested information is deemed to have disclosed updated income, determined in accordance with the regulations.
DIVISION 4
SPOUSAL SUPPORT
In this Division and Division 5, "spouse" includes a common-law partner.
Application of this Division to certain divorced spouses
A person who was divorced from his or her former spouse under
(a) the Civil Marriage Act (Canada); or
(b) a law governing divorce in a jurisdiction outside Canada;
may apply for a spousal support order under this Division if the person or his or her former spouse is habitually resident in Manitoba when the application is made. In that case, this Division and Division 5 apply with necessary changes.
DUTY TO SUPPORT
Spouses have the mutual duty to contribute reasonably to each other's support.
The duty of mutual support exists regardless of the conduct of either spouse, and the court must not consider the conduct of either spouse in determining whether to make an order for support under this Division.
A spouse's right to support under this section includes the right, while living with the other spouse, to
(a) periodic reasonable amounts for clothing and other personal expenses; and
(b) sole discretion in the use of those amounts free of any interference from the other spouse.
Onus of self-support after separation
After separation, a spouse has the duty to take all reasonable steps to become financially independent of the other spouse, despite the duty of mutual support under subsection 64(1).
DUTY TO PROVIDE FINANCIAL INFORMATION
Spouses have the mutual duty to provide each other, on request, with information and accountings respecting the financial affairs of the marriage or common-law relationship and the household relating to it, including, but not limited to,
(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.
If a spouse fails to comply with a request under subsection (1), the court may do one or more of the following:
1. Order the spouse to comply with the request.
2. Order the non-complying spouse's employer, partner or principal, or any other person, to provide the other spouse with any of the information, accountings or documents referred to in subsection (1) that are within the knowledge of or contained in a record in the possession or control of the employer, partner, principal or other person.
3. Order the non-complying spouse to pay the other spouse an amount up to $5,000, in addition to or instead of any other penalty to which the non-complying spouse is liable under this Act.
On application by a party, the court may order that any information, accountings or documents provided under this section — and any examination or cross-examination on them — be kept confidential and not form part of the public record.
EFFECT OF SEPARATION AGREEMENT ON ORDER
Effect of separation agreement
When spouses have entered into a written agreement for spousal support in which one of them has agreed to release the other from liability for support or to accept a specified amount of support from the other, the court must not make an order under this Part for support of the spouse who has so agreed.
However, subsection (1) does not apply in the following circumstances:
(a) the spouse who is required to provide support under the agreement is in default;
(b) the court is satisfied that
(i) the support that a spouse agreed to provide under the agreement was inadequate given the circumstances of both spouses when the agreement was entered into, or
(ii) the spouse who, in the agreement, released the other from liability for support or accepted a specified amount of support from the other has become in need of public assistance.
When a court makes a spousal support order in a circumstance mentioned in subsection (2), the order terminates the agreement for spousal support.
A provision in an agreement stating that support for a spouse is conditional on the spouse abstaining from sexual relations is void, and all other provisions of the agreement are to be enforced without regard to that provision.
SUPPORT ORDER
A court may, on application by a spouse, make an order requiring one spouse to provide support for the other, and determine the amount of support.
In determining the amount, if any, and duration of spousal support, the court must consider all the circumstances of the spouses, including the following:
1. The duration of the marriage or common-law relationship.
2. The functions performed by each spouse during the time they lived together.
3. The financial means, earnings and earning capacity of each.
4. The household standard of living of each.
5. The financial needs of each.
6. Any contribution of a spouse within the meaning of subsection (2).
7. Any impairment of the income-earning capacity and financial status of either resulting from the marriage or common-law relationship.
8. If one of them is financially dependent upon the other,
(a) the measures available for the dependent spouse to become financially independent of the other, and the length of time and cost involved in taking those measures; and
(b) whether and to what extent the dependent spouse is complying with the duty to take all reasonable steps to become financially independent.
9. Any duty either has for the support of a child, or of another person other than the other spouse.
10. Any previous court order relating to the support of the spouses.
11. The existence of any agreement or arrangement relating to the support of the spouses.
12. The amount of any property settlement made between them.
Domestic service as financial contribution
Any housekeeping, child care or other domestic service performed by a spouse for the family is a contribution to support within the meaning of section 64 (duty of mutual support) in the same way as if the spouse were devoting the time spent in performing that service in gainful employment and contributing the earnings to support.
PRIORITY OF CHILD SUPPORT
A court that is considering both an application for a child support order and an application for a spousal support order must give priority to child support in determining the applications.
When, because of giving priority to child support, the court is unable to make a spousal support order, or makes an order in an amount that is less than it otherwise would have been, the court must record its reasons for doing so.
Consequences of reduction or termination of child support order
When, because of giving priority to child support, a spousal support order is not made, or the amount of the order is less than it otherwise would have been, any later reduction or termination of child support is a change of circumstances for the purpose of applying for a spousal support order or a variation of an order.
REVIEW OF SPOUSAL SUPPORT
An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for any of the following:
(a) that the review occur on or after a specified date, after a specified period of time or after a specified event has occurred;
(b) the manner in which the review will take place;
(c) the grounds on which a review will be permitted;
(d) the matters to be considered in a review.
When a court reviews spousal support, the court may, on application, do one or more of the following:
(a) confirm an agreement respecting spousal support or a spousal support order;
(b) set aside all or part of an agreement, or vary or terminate a spousal support order;
(c) make a spousal support order under section 68.
ORDER TO VARY, SUSPEND OR TERMINATE SPOUSAL SUPPORT ORDER
Order to vary, suspend or terminate spousal support order
On application, a court may vary, suspend or terminate a spousal support order.
Before making an order under subsection (1), the court must be satisfied that a change in the means, needs or circumstances of either spouse has occurred since the order was made or last varied, and the court must consider the change in making the order.
An order under this section may be made retroactive to the date of the application, but not earlier.
DIVISION 5
GENERAL SUPPORT MATTERS
MATTERS THAT MAY BE PROVIDED FOR IN SUPPORT ORDERS
Matters that may be provided for in support orders
In a child support order or a spousal support order, the court may provide for one or more of the following:
1. That payment be made in a lump sum, periodically, annually or otherwise, or in any combination of them, for an indefinite or limited period or until a specified event occurs.
2. That payment of a lump sum be made directly or in trust.
3. That support be paid in respect of any period before the date of the order.
4. That some or all of the support payable under the order be paid to another person for the benefit of the support recipient.
5. With respect to a child support order, that some or all of the support be paid directly to the child.
6. That a spouse who has a policy of life insurance as defined in The Insurance Act designate the other spouse or a child as the beneficiary, either irrevocably or for the period set by the order.
7. That a duty and liability to pay support continue after the death of the person having the duty, and is a debt of the person's estate for the period set by the order.
8. That the parties provide each other with updated financial information annually or at other specified times.
9. That a spouse who is required to pay support maintain coverage for the other spouse and any children on his or her medical, dental or other health care plan.
10. That court costs and reasonable lawyer's costs related to the support order, in amounts that the court may determine, be paid by one party, or by the parties in the proportions the court may determine.
11. That payment under the order be secured by a charge on property or otherwise.
ENFORCEMENT OF SUPPORT
Whether or not a support order states that the director under The Family Support Enforcement Act may enforce it, the director may enforce such an order and the support recipient may also enforce it under any law.
A support order or an agreement respecting child or spousal support may be assigned to the director designated under The Manitoba Assistance Act.
The director must take reasonable steps to notify the payor under a support order or agreement of any assignment. The notice may be sent by ordinary mail.
Director entitled to participate
When a support order or agreement has been assigned, the director
(a) is entitled to receive the payments due under the order or agreement; and
(b) has the same right to be notified of and participate in any proceedings under this Part or The Family Support Enforcement Act to vary, suspend, terminate or enforce payments, including arrears, under an order or agreement as the person entitled to receive support under the order or agreement.
COMPENSATION FOR LATE SUPPORT PAYMENTS
Compensation for late support payments
This section applies when a payment required under a support order is not made, is made only in part, or is made after it was due.
In the circumstances mentioned in subsection (1), a court hearing an application to vary or terminate a support order under this Part may order the person required to pay support to make a compensatory payment in an amount up to $5000 to the person entitled to receive support.
ORDER CANCELLING ARREARS
The court that made a support order may, on application, cancel arrears under the order, in whole or in part, if the court is satisfied that,
(a) having regard to the interests of the person in arrears or his or her estate, it would be grossly unfair not to do so; and
(b) having regard to the interests of the person to whom the arrears are owed or his or her estate, the cancellation is justified.
REGULATIONS
Regulations respecting child support
The Lieutenant Governor in Council may make regulations establishing guidelines for the making of child support orders under this Part, and which permits Manitoba's designation under subsection 2(5) of the Divorce Act (Canada).
Without limiting the generality of subsection (1), guidelines may be established
(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 or secured, or paid and secured, in the manner specified in the order;
(d) respecting the circumstances that give rise to the making of a variation order in respect of child support;
(e) respecting the determination of income for the purposes of the application of the child support guidelines;
(f) authorizing a court to impute income for the purposes of the application of the child support guidelines;
(g) respecting the production of financial information, deeming income and disclosure of income, if that information is not produced, and providing for sanctions;
(h) for the purpose of subsection 61(7), respecting the determination of a party's updated income;
(i) adopting, in whole or in part, and as amended from time to time, any regulation, guideline, rule, or procedure;
(j) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Part.
The Lieutenant Governor in Council may make regulations
(a) respecting the recalculation service generally;
(b) governing recalculations by the recalculation service;
(c) establishing criteria for determining whether a child support order is eligible for recalculation by the recalculation service;
(d) respecting the information that payors and recipients are required to provide the recalculation service;
(e) respecting notices that must be provided to or by the recalculation service;
(f) respecting the collection, use and disclosure of personal information by the recalculation service, including purposes for which information may be used or disclosed by the service;
(g) establishing requirements for child support orders that include child support amounts determined in accordance with a defined formula;
(h) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of recalculation of child support orders.
PART 5
MISCELLANEOUS ORDERS RE SPOUSES AND PARTNERS
Contents
79 Order of exclusive occupation of family home
80 Order respecting conduct
81 Order to vary or terminate
82 Order of non-cohabitation
83 Finding re length of common-law relationship
ORDER OF EXCLUSIVE OCCUPATION OF FAMILY HOME
In this section, "family home" means property that is owned or leased by one or both spouses or common-law partners and that is or has been occupied by them as their home.
Order of exclusive occupation of family home
On application by a spouse or common-law partner, the court may order
(a) that one spouse or common-law partner be given exclusive occupation of the family home for a specified period, even if the other spouse or partner is the sole owner or lessee of the home or if both spouses or partners together are the owners or lessees;
(b) that the right that the other spouse or common-law partner may have as owner or lessee to apply for partition or sale, or to sell or otherwise dispose of the family home, be postponed.
An order under subsection (2) does not grant to a spouse or common-law partner any right that continues after the rights of the other spouse or partner, or of both spouses or partners, as owner or lessee are terminated.
ORDER RESPECTING CONDUCT
Unless it would be more appropriate to make an order under The Domestic Violence and Stalking Act, on application by a spouse, common-law partner or person who has lived in a marriage-like relationship, a court may make an order
(a) prohibiting or restricting communications between the parties, including how and when communications may occur;
(b) prohibiting or restricting the other party's attendance at or near a place where the applicant regularly attends, including the applicant's home, workplace or business.
80(2) An order under subsection (1) may include exceptions and be made subject to any terms and conditions the court considers appropriate to
(a) permit communication for the purpose of pursuing court proceedings;
(b) allow the parties to attend a court hearing or a meeting, mediation, evaluation or other event related to court proceedings or the settlement of court proceedings or the settlement of family matters that will avoid court proceedings; and
(c) permit the parties to exercise a right to periods of care and control of or access to a child of the marriage or the relationship.
ORDER TO VARY OR TERMINATE
The court that made an order under section 79 or 80 may, on application, vary or terminate the order if it considers it fair and reasonable to do so, having regard to any material change in circumstances that has occurred since the order was made or last varied.
ORDER OF NON-COHABITATION
On application by a spouse, a court may order that the spouses are no longer bound to cohabit with one another.
FINDING RE LENGTH OF COMMON-LAW
RELATIONSHIP
Finding re length of common-law relationship
When an application is made under this Act that relates to a common-law relationship, the court may make a finding as to the period of time during which common-law partners cohabited in a common-law relationship, and the date their cohabitation began and ended.
PART 6
GENERAL POWERS OF THE COURT
Contents
84 Jurisdiction of Queen's Bench and Provincial Court
85 Conduct of proceedings
86 Exclusion of the public or from publication
87 Spouse a compellable witness
88 Reconciliation efforts
89 Appeals
90 Interim order
91 Consent order
92 Incorporating terms of agreement in court order
93 Terms and conditions of orders
94 Review of order
95 Order to provide address
JURISDICTION OF QUEEN'S BENCH AND PROVINCIAL COURT
Jurisdiction of Queen's Bench (Family Division)
An application may be made to the Court of Queen's Bench (Family Division) for any order under this Act.
Limited jurisdiction of Provincial Court
An application may be made to the Provincial Court (Family Division) for any order under this Act except the following:
(a) an order under item 2 of section 73 that a lump sum payment of support be made in trust;
(b) an order under item 11 of section 73 that payment of support be secured by a charge on property;
(c) an order under subsection 79(2) respecting occupation of the family home or postponing rights respecting the family home.
HOW PROCEEDINGS ARE TO BE CONDUCTED
A court must ensure that a proceeding under this Act is conducted
(a) with as little delay and formality as possible; and
(b) in a manner that strives to
(i) minimize conflict between the parties and, if appropriate, promote co-operation, and
(ii) protect children and parties from domestic violence.
EXCLUSION OF THE PUBLIC OR FROM PUBLICATION
Exclusion of the public or from publication
A court may make an order
(a) excluding any person, other than a party, from attending a hearing; or
(b) prohibiting publication of the identity of a party or child in reports of a hearing;
if the court considers that a person's presence at a hearing or publication would be detrimental to a child's health or well-being or have an adverse effect on, or cause undue hardship to, the party or a child.
SPOUSE A COMPELLABLE WITNESS
In any proceeding under this Act, spouses are competent and compellable to give evidence against one another.
RECONCILIATION EFFORTS
Court to ask about reconciliation
When an application under this Act relates to a marriage or common-law relationship, the court may at any time
(a) ask the applicant and, if present, the respondent, whether there is a possibility of their reconciliation;
(b) adjourn the proceedings to give the parties an opportunity to reconcile;
(c) refer the parties to a counselor to assist them in their efforts to reconcile;
unless the circumstances of the case are such that it would clearly not be appropriate to do so.
No evidence permitted re counselling
Unless the parties agree otherwise, no person who counsels spouses or common-law partners in reconciliation efforts, and no party to those efforts, is competent or compellable to give evidence in a proceeding under this Act or otherwise, as to
(a) a written or oral statement made by a person during counselling; or
(b) any knowledge or information acquired by anyone during counselling.
Subsection (2) does not apply to a proceeding under Part III (Child Protection) of The Child and Family Services Act.
APPEALS
A party may appeal an order made under this Act, including an interim order, to the Court of Appeal.
The time limit for filing an appeal is 30 days after the order is signed, unless the Court of Appeal extends the time.
After hearing an appeal, the Court of Appeal may
(a) confirm or set aside the order;
(b) make any order that the court that made the order could have made; or
(c) direct a new hearing.
Order under appeal remains in effect
An order under appeal remains in effect and may be enforced until the appeal is determined, unless the court that made the order or the Court of Appeal orders otherwise.
INTERIM ORDER
When an application is made under this Act other than for a declaratory order of parentage under Part 2, the court may make an interim order if it is satisfied that a delay in making an order might prejudice or cause hardship to a party to the proceedings or to a child.
An interim order must be made on the application of a party with notice to the other party or parties, unless the court is satisfied that it is necessary to make an interim order without giving notice.
To the extent practicable, the court must make an interim order in accordance with any requirements or factors that would apply if the order were not an interim order.
CONSENT ORDER
A court may make an order under this Act without a hearing if the parties consent and have agreed on the content of the order.
INCORPORATING TERMS OF AGREEMENT IN COURT ORDER
Order may incorporate agreement
A court may incorporate into an order made under this Act all or part of a written agreement made by the parties to the proceeding and, unless the court orders otherwise,
(a) the order replaces the part of the agreement that is incorporated; and
(b) the rest of the agreement remains in effect.
TERMS AND CONDITIONS OF ORDERS
Terms and conditions of orders
A court may include in an order made under this Act any terms or conditions the court considers appropriate in the circumstances.
REVIEW OF ORDER
Subject to this Act, an order made under this Act, other than a declaratory order of parentage under Part 2, may require the parties to return to the court that made the order for a review of the provisions of the order.
The review may be required after a specified date, after a specified period of time or after a specified event has occurred.
Court may continue, vary or terminate
On a review, the court may continue, vary or terminate the order.
ORDER TO PROVIDE ADDRESS
A potential applicant who needs to know the address or whereabouts of another person to
(a) apply for an order under this Act; or
(b) apply for similar relief under the Divorce Act (Canada) or other law;
may apply to the court for an order requiring any person, the government or another entity to provide the court with information in their possession or control about the person's address or whereabouts. On receiving the information, the court may give it to the applicant or to any other person the court considers appropriate.
An application must be served on the person, the government or other entity from whom the information is sought.
Any person, the government or another entity to whom an order is directed must comply with the order, despite any other enactment or law requiring confidentiality.
Assessing risk of domestic violence or stalking
Before the court gives a person's address or information as to the person's whereabouts to a potential applicant under subsection (1), it must consider whether doing so could expose that person to a risk of domestic violence or stalking.
PART 7
MISCELLANEOUS PROVISIONS
Contents
96 Offence
97 Regulations
98 No limitation period
99 Rights are additional
A person who fails to comply with a provision of this Act or a provision of an order made under this Act is guilty of an offence and is liable, on conviction, to a fine of not more than $10,000, or to imprisonment for not more than one year, or both.
The Lieutenant Governor in Council may make regulations
(a) governing all matters of procedure under this Act;
(b) respecting the giving of notices and other documents under this Act and the regulations and specifying when they are deemed to have been given or received;
(c) respecting relocation under Division 6 of Part 3, including the determination of overnight stays or comparable time under section 45;
(d) respecting forms for the purposes of this Act and providing for their use;
(e) defining any word or phrase used but not defined in this Act;
(f) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Act.
No limitation period applies to the making of an application under this Act or to the enforcement of an order made under this Act.
Rights given under this Act are in addition to and not a substitute for rights given under any other law.
PART 8
TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS, REPEAL AND COMING INTO FORCE
Contents
100 Transitional re Family Maintenance Act
101 Transitional re Child and Family Services Act
102 Transitional regulations
103-129 Consequential amendments
130 Repeal
131 C.C.S.M. reference
132 Coming into force
TRANSITIONAL PROVISIONS
Transitional re Family Maintenance Act
In this section, "former Act" means The Family Maintenance Act.
Former Act applies to existing proceedings
Despite the repeal of the former Act, any proceedings commenced under Parts I to V of the former Act that are not fully disposed of before the coming into force of this section are to be dealt with and disposed of under the former Act.
This Act applies if parties consent
Despite subsection (2), with the consent of the parties, a proceeding commenced under Parts I to V of the former Act may be dealt with and disposed of under this Act.
Declarations of parentage continues
A declaration of parentage under Part II of the former Act continues in force according to its terms and may be confirmed or set aside as if the declaration were a declaratory order made under Part 2 of this Act.
Custody or access order continues
An order respecting custody of or access to a child under the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under this Act.
An order respecting the support or maintenance of a child, spouse or common-law partner made
(a) under the former Act; or
(b) under The Wives' and Children's Maintenance Act (now repealed);
continues in force according to its terms and may be enforced, varied, suspended or terminated — and, in the case of an order for child support, may be recalculated — as if the order were a support order made under this Act.
An order respecting the recalculation of child support made under the former Act by a court or the recalculation service continues in force according to its terms and may be enforced, varied, suspended or terminated as if the order were made under this Act.
Order re exclusive occupation of home continues
An order of exclusive occupation of the family residence or postponing a person's rights as owner or lessee of the family residence under the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under section 79 of this Act.
Order prohibiting or restricting communications continues
An order prohibiting or restricting communications between spouses or common-law partners under the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under section 80 of this Act.
Order of non-cohabitation continues
An order that spouses be no longer bound to cohabit with one another under the former Act continues in force according to its terms and may be terminated as if the order were made under section 82 of this Act.
Finding re length of common-law relationship continues
A court finding as to the period of time during which common-law partners cohabited in a common-law relationship under the former Act remains in effect as if the finding were made under section 83 of this Act.
Transitional re Child and Family Services Act
In this section,"former Act" means Part VII of The Child and Family Services Act.
Former Act applies to existing proceedings
Despite the repeal of the former Act, any proceedings commenced under the former Act that are not fully disposed of before the coming into force of this section are to be dealt with and disposed of under the former Act.
This Act applies if parties consent
101(3) Despite subsection (2), with the consent of the parties, a proceeding commenced under the former Act may be dealt with and disposed of under this Act.
An order appointing a guardian under section 77 of the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were a guardianship order made under this Act.
An order respecting access to a child under section 78 of the former Act continues in force according to its terms and may be enforced, varied or terminated as if the order were made under this Act.
The Lieutenant Governor in Council may make regulations respecting anything required to deal with the transition of matters from the former Acts referred to in sections 100 and 101 to this Act, including regulations to remedy any difficulty, inconsistency or impossibility resulting from the transition.
CONSEQUENTIAL AMENDMENTS
The Adoption Act
The Adoption Act is amended by this section.
The definition "extended family" in subsection 1(1) is amended by striking out "birth parent" and substituting "parent".
Subsection 1(1) is further amended by replacing the definition "parent" with the following:
"parent" means a parent under Part 2 of The Family Law Act; (« parent »)
Sections 24 and 25 are amended in the part before clause (a) by striking out "Part II of The Family Maintenance Act that a man be declared to be the father of the child to be adopted" and substituting "Part 2 of The Family Law Act that a person be declared to be the parent of the child to be adopted".
Clauses 50(e), 67(e) and 85(e) are amended by striking out "The Family Maintenance Act for a declaration that a man be declared to be the father of the child" and substituting "Part 2 of The Family Law Act for a declaration that a person be declared to be the parent of the child".
The Manitoba Assistance Act
Clause 5(1)(f) of The Manitoba Assistance Act is amended by striking out "both of".
The Change of Name Act
The Change of Name Act is amended by this section.
The definition "custody" in subsection 1(1) is replaced with the following:
"custody" means the care and control of a child by
(a) a parent of the child, or
(b) a person in loco parentis to the child; (« garde »)
Subsection 4(1) is amended
(a) by replacing clause (a) with the following:
(a) with the written consent of each other parent who has custody; or
(b) in clause (b), by striking out "the parent who does not have custody" and substituting "each other parent who does not have custody".
The following is added after subsection 4(4):
Application by person in loco parentis
When an order has been made granting custody of a child to a person in loco parentis, that person may apply to change the child's name with the consent of the parents and, if consent cannot be obtained, notice of the application to change the child's name and their right to object under subsection 6(1) must be given to the parents.
Subsection 5(1) is replaced with the following:
Director may dispense with notice
Where notice of the application mailed under section 4 cannot be delivered or where the last known place of residence of a parent who does not have custody is the same as the applicant's address, the director may require the applicant to make a reasonable attempt to locate a parent who does not have custody and where the attempt is unsuccessful, the director may dispense with notice to that parent.
The Child and Family Services Act
106(1) The Child and Family Services Act is amended by this section.
Subsection 1(1) is amended
(a) in the definition "court", by striking out ", and in Part VII"; and
(b) by replacing the definition "parent" with the following:
"parent" means a parent under Part 2 of The Family Law Act or an adoptive parent; (« parent »)
Subsection 16(1) is amended
(a) in clause (b), by adding "or parents" after "surviving parent"; and
(b) in clause (c) of the English version, by striking out "both parents" and substituting "the parents".
Subsection 16(2) is replaced with the following:
Voluntary surrender of guardianship by mother
The birth mother of a child may, by agreement on a prescribed form, surrender guardianship of the child to an agency where no circumstances exist that would give rise to a presumption under section 13 of The Family Law Act that a male person is the child's biological father.
Declaration of parentage to replace parents
If a declaration of parentage has been made or recognized under Part 2 of The Family Law Act that has the effect of replacing the birth mother or the biological father as the parent or parents of the child, the person or persons declared to be the child's parent or parents, as the case may be, may, by agreement on a prescribed form, surrender guardianship of the child to an agency.
Declaration of parentage to add parents
If a declaration of parentage has been made under Part 2 of The Family Law Act that has the effect of adding an additional parent, then all parents may, by agreement on a prescribed form, surrender guardianship of the child to an agency.
Subsections 16(3) to (5) are amended by striking out "subsection (1) or (2)" and substituting "subsection (1), (2), (2.1) or (2.2)".
Part VII is repealed.
The Provincial Court Act
The Provincial Court Act is amended by this section.
Section 20 is amended
(a) in the section heading of the English version, by striking out "maintenance" and substituting "support";
(b) in the English version, by adding "support," before "alimony"; and
(c) by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The following is added after subsection 20.4(2):
Where a judge appoints a family evaluator under subsection (1) and a party refuses to co-operate with him or her, the family evaluator shall report the refusal to the court. The court may draw any inference from the refusal it considers appropriate.
The Court of Queen's Bench Act
The Court of Queen's Bench Act is amended by this section.
The definition "family proceeding" in section 41 is amended as follows:
(a) by replacing clause (d) with the following:
(d) the obligation to provide support
(i) as between a parent and a child of the parent, or
(ii) by a person, other than a parent, for a child,
(b) by replacing clause (h) with the following:
(h) The Family Law Act or The Family Maintenance Act (now repealed),
Clause 72.1(5)(a) is amended by striking out "or" at the end of subclause (i), adding "or" at the end of subclause (ii) and adding the following after subclause (ii):
(iii) a person other than a parent and a child;
The Child Custody Enforcement Act
Section 7 and subsection 9(7) of The Child Custody Enforcement Act are amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The Dependants Relief Act
The Dependants Relief Act is amended by this section.
The definition "child" in section 1 is amended by striking out "and" at the end of clause (a) and by adding the following after clause (a):
(a.1) a child who is conceived and born within two years after the deceased's death and who lives for at least 16 days, if the requirements of section 1.1 are met; and
The following is added after section 1:
Notice re child conceived posthumously
If a person might use reproductive material or an embryo provided by a deceased person to conceive a child posthumously through assisted reproduction, the person must give written notice of that fact, within five months from the grant of probate or administration, to
(a) the deceased's personal representative;
(b) successors under The Intestate Succession Act; and
(c) beneficiaries under a will, if there is one.
Despite subsection (1) and section 1, the Court of Queen's Bench may extend the following periods if it is satisfied that exceptional circumstances warrant doing so:
(a) the five-month notice period set out in subsection (1);
(b) the two-year period referred to in clause (a.1) of the definition "child" in section 1.
Necessary proof re posthumous conception
When an application for an order under section 2 is made on behalf of a child conceived posthumously, the applicant must prove that the deceased
(a) provided reproductive material or an embryo that was used to conceive the child;
(b) gave written consent allowing the reproductive material or embryo to be used for the posthumous conception; and
(c) gave written consent to be the parent of a child conceived after his or her death.
Declaratory order as conclusive proof
If the deceased has been declared to be the child's parent under section 17 or 18 of Part 2 of The Family Law Act and the time to appeal the declaratory order has elapsed or any appeal has been disposed of, the order is conclusive proof of the matters set out in subsection (3).
In this section,
(a) the terms "assisted reproduction", "embryo", "marriage-like relationship" and "reproductive material" have the same meaning as in The Family Law Act; and
(b) sections 9 (date of conception) and 10 (providing reproductive material) of The Family Law Act apply for purposes of interpreting this section.
Section 3 is amended
(a) by adding "or potential dependant" after "dependant";
(b) by renumbering it as subsection 3(1); and
(c) by adding the following as subsection 3(2):
Definition of "potential dependant"
In subsection (1), "potential dependant" means a child who has been or may be conceived posthumously, but is not yet born.
Subsection 6(1) is amended by adding "or, in the case of a posthumously conceived child, not later than six months after the child's birth" at the end.
The Domestic Violence and Stalking Act
The Domestic Violence and Stalking Act is amended by this section.
Clause 2(1)(e) is replaced with the following:
(e) is a parent of his or her child under Part 2 of The Family Law Act or by adoption, regardless of their marital status or whether they have ever lived together.
Clause 14(1)(d) is replaced with the following:
(d) a provision granting the subject temporary exclusive occupation of the residence, regardless of ownership, but subject to any order made under
(i) subsection 79(2) of The Family Law Act,
(ii) clause 10(1)(b.2) of The Family Maintenance Act (now repealed), or
(iii) subsection 10(5) of The Family Maintenance Act (now repealed);
Clause 14(1)(p) is amended
(a) in the English version, by striking out "an order has been made" and substituting "an order was made"; and
(b) by striking out "The Family Maintenance Act" and substituting "The Family Maintenance Act (now repealed)".
Subsection 14(2) is amended by striking out "subsection 10(6) (right of occupancy restricted) of The Family Maintenance Act" and substituting "subsection 79(3) (limit on exclusive occupation of family home) of The Family Law Act".
Section 22 is amended
(a) by adding the following after clause (a):
(a.1) an order obtained under subsection 80(1) (order respecting conduct) of The Family Law Act;
(b) in clause (b), by striking out "The Family Maintenance Act" and substituting "The Family Maintenance Act (now repealed)".
The following is added after section 27:
Transitional re Family Maintenance Act
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 of The Family Maintenance Act (now repealed), an order or interim order made under those provisions continues in force and may be revoked but may not be otherwise varied. Section 19 applies with necessary changes to an application to revoke a provision of such an order.
Effect of order under this Act on prior non-molestation order
Despite subsection (1), when a protection order or prevention order is made under this Act in respect of persons who are also parties to a non-molestation order under clause 10(1)(d) of The Family Maintenance Act (now repealed),
(a) if the non-molestation order was made by a designated magistrate under Division 2 of Part V of The Family Maintenance Act (now repealed), 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
For greater certainty, the parties referred to in subsection (2) must be the same applicant and respondent in both orders.
The Drivers and Vehicles Act
Subsections 24(1) and 74(2) of The Drivers and Vehicles Act are each amended by replacing clauses (a) to (d) with the following:
(a) by the applicant's parents;
(b) if the registrar is satisfied that it is not practical or desirable to obtain the approval and signature of the applicant's parents, by any of them;
(c) if one of the applicant's parents is dead, by a surviving parent;
(d) if the registrar is satisfied that the approval and signature of no parent should be required, or if the applicant's parents are dead, by the applicant's legal guardian; or
The Family Property Act
The Family Property Act is amended by this section.
Clause 6(2)(a) is replaced with the following:
(a) made under The Family Law Act or The Family Maintenance Act (now repealed); or
Clause 35(2)(b) is replaced with the following:
(b) is in compliance with a court order made under
(i) the Divorce Act (Canada),
(ii) item 6 of section 73 of The Family Law Act, or
(iii) clause 10(1)(i) of The Family Maintenance Act (now repealed); or
Clause 41(1)(b) of the English version is amended by striking out "pay maintenance" and substituting "pay support or maintenance".
The Highway Traffic Act
Clauses 168(2)(a) to (d) of The Highway Traffic Act are replaced with the following:
(a) by the applicant's parents;
(b) if the registrar is satisfied that it is not practical or desirable to obtain the approval and signature of the applicant's parents, by any of them;
(c) if one of the applicant's parents is dead, by a surviving parent;
(d) if the registrar is satisfied that the approval and signature of no parent should be required, or if the applicant's parents are dead, by the applicant's legal guardian; or
The Human Tissue Gift Act
Subsection 10(4) of The Human Tissue Gift Act is amended by striking out "the mother or father, or the step-mother or step-father" and substituting "the parent or step-parent".
The Infants' Estates Act
The Infants' Estates Act is amended by this section.
The definition "parent" in section 1 is replaced with the following:
"parent" means a parent under Part 2 of The Family Law Act or an adoptive parent. (« parent »)
Clause (2)(b) is amended by striking out "the other parent" and substituting "any other parent".
Section 3 is amended by striking out "either or both parents" and substituting "one or more of the parents".
The Inter-jurisdictional Support Orders Act
The Inter-jurisdictional Support Orders Act is amended by this section.
Subsection 11(3) is amended
(a) in the part before clause (a), by striking out "section 19 or 20 of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act"; and
(b) in the part after clause (b), by striking out "subsections 20(2) and 20(4) to (8) and sections 21 to 24 of The Family Maintenance Act apply" and substituting "Part 2 of The Family Law Act applies".
Subsection 35(2) is amended
(a) by replacing the section heading with "Family Law Act applies"; and
(b) by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The Intestate Succession Act
The Intestate Succession Act is amended by this section.
The following is added after section 1:
Inheritance by posthumously conceived child
A child of the intestate, conceived and born after the intestate's death, inherits as if the child had been born in the intestate's lifetime and had survived the intestate, if the following conditions are met:
(a) the spouse of the intestate, or a person in a marriage-like relationship with the intestate when the intestate died, gives written notice, within five months from the grant of administration, to
(i) the intestate's personal representative,
(ii) successors, and
(iii) beneficiaries under a will, if there is one;
that he or she may use reproductive material or an embryo of the intestate to conceive a child through assisted reproduction;
(b) the child is born within two years after the intestate's death and lives for at least 16 days;
(c) the intestate has been declared to be the child's parent under Part 2 of The Family Law Act.
Inheritance from another relative
The right of a child described in subsection (1) to inherit from the relatives of an intestate begins on the date the child is born.
Despite subsection (1), the Court of Queen's Bench may extend the five-month notice period or the two-year time limit set out in that subsection if the court is satisfied that exceptional circumstances warrant doing so.
In this section,
(a) the terms "assisted reproduction", "embryo", "marriage-like relationship" and "reproductive material" have the same meaning as in The Family Law Act; and
(b) sections 9 (date of conception) and 10 (providing reproductive material) of The Family Law Act apply for purposes of interpreting this section.
The Judgments Act
The Judgments Act is amended by this section.
Subsection 9(1) of the English version is amended
(a) in the section heading, by striking out "alimony" and substituting "support"; and
(b) by adding "support," before "alimony".
The following provisions of the English version are amended by adding "support," before "alimony" wherever it occurs:
(a) section 20, in the part before clause (a);
(b) subsection 21(1), in the part before clause (a);
(c) clause 21(2)(b);
(d) subsection 21(4), in the part before clause (a).
Clause 21(1)(c) is amended
(a) by striking out "The Wives' and Children's Maintenance Act before the repeal thereof" and substituting "The Wives' and Children's Maintenance Act (now repealed) or The Family Maintenance Act (now repealed)"; and
(b) by striking out "The Family Maintenance Act" and substituting "The Family Law Act".
The Legal Aid Manitoba Act
The Legal Aid Manitoba Act is amended by replacing clause 17.2(1)(a) with the following:
(a) in a case where a parent under Part 2 of The Family Law Act is responsible for the care and control of a child, the parent of the child;
The Marriage Act
Clause 18(1)(b) of The Marriage Act is amended as follows:
(a) in subclause (ii), by striking out "surviving parent" and substituting "surviving parent or parents";
(b) in subclause (iv), by striking out "the other parent" and substituting "the other parent or parents";
(c) in subclause (v) of the English version, by striking out "both parents" and substituting "the parents".
The Off-Road Vehicles Act
Clauses 13(2)(a) to (d) of The Off-Road Vehicles Act are replaced with the following:
(a) by the applicant's parents;
(b) if the registrar is satisfied that it is not practical or desirable to obtain the approval and signature of the applicant's parents, by any of them;
(c) if one of the applicant's parents is dead, by a surviving parent;
(d) if the registrar is satisfied that the approval and signature of no parent should be required, or if the applicant's parents are dead, by the applicant's legal guardian; or
The Parental Responsibility Act
The definition "parent" in section 1 of The Parental Responsibility Act is amended by replacing clause (a) with the following:
(a) in a case where a parent under Part 2 of The Family Law Act is responsible for the care and control of a child, the parent of the child;
The Manitoba Public Insurance
Corporation Act
The Manitoba Public Insurance Corporation Act is amended by this section.
Subsection 70(1) is amended
(a) in the definition "child of a victim", by striking out "person related to a victim as a child by blood or adoption or" and substituting "child under Part 2 of The Family Law Act, an adopted child, or a child"; and
(b) in the definition "parent of a victim", by striking out "person related to a victim as a parent by blood or adoption or" and substituting "parent under Part 2 of The Family Law Act, an adoptive parent, or a person".
Section 200 is amended striking out "the mother or father" and substituting "a parent".
The Public Schools Act
The definition "legal guardian" in subsection 1(1) of The Public Schools Act is amended by adding ", The Family Law Act" after "The Child and Family Services Act".
The Real Property Act
The Real Property Act is amended by this section.
Clause 34(1)(a) is amended by striking out "either parent" and substituting "a parent".
Subsection 34(2) of the English version is amended by striking out "both parents" and substituting "the parents".
The Vital Statistics Act
The Vital Statistics Act is amended by this section.
Section 1 is amended
(a) by adding the following definition:
"birth mother" means a person who gives birth to a child;
(b) by repealing the definition "married woman".
Section 3 is amended by adding the following before subsection (1):
In subsections (2) to (7), "parent" means a birth mother and
(a) the birth mother's spouse; or
(b) another person who together with the birth mother declares that he or she is the child's parent by signing the statement respecting the birth under subsection (2) or a joint request under subsection (7).
Clauses 3(2)(a) to (d) are replaced with the following:
(a) the parents of the child or one of them;
(b) an employee in the health facility in which the child is born;
(c) if there is no person to whom clause (a) or (b) applies or if the child's parents are unable to act because of death, illness, absence from Manitoba or otherwise, a person standing in their place as parents; or
(d) if there is no person to whom clause (a), (b) or (c) applies, any person who has knowledge of the birth;
Subsections 3(5) to (9) are replaced with the following:
Registration if parents married
If the birth mother is a married person on the day the child is born, the child's birth must be registered in one of the following ways:
(a) showing the particulars of the birth mother and her spouse as the child's parents;
(b) showing the particulars of only the birth mother as the child's parent, if the birth mother declares that her spouse is not a parent of the child;
(c) showing the particulars of the birth mother and a person other than her spouse as the child's parents, if both the birth mother and the other person sign the statement respecting the birth and the birth mother declares that her spouse is not a parent of the child.
Registration if parents unmarried
If the birth mother is not a married person on the day the child is born, the child's birth must be registered in one of the following ways:
(a) showing the particulars of the birth mother and another person as the child's parents, if both the birth mother and the other person sign the statement respecting the birth;
(b) showing the particulars of only the birth mother as the child's parent.
At any time after a child's birth has been registered showing that only the birth mother is the child's parent under clause (5)(b) or (6)(b), the birth mother and a person who acknowledges that he or she is a parent of the child may complete and deliver or mail a joint written request in an approved form to the director for the person to be registered as a parent of the child. The director may amend the registration according to the joint request on payment of the prescribed fee.
Limit on amending birth registration
Once a birth has been registered showing the birth mother and another person as the child's parents, the registration may only be amended with respect to the identity of the parents by a declaratory order or an order of adoption.
Subsection 3(9.3) is repealed.
Subsection 3(14) is replaced with the following:
Amending registration after Manitoba declaratory order
On receiving a statement respecting a declaratory order of parentage made under Part 2 of The Family Law Act that relates to a child born in Manitoba, the director shall, subject to subsection (16), amend the birth registration according to the declaratory order. Every birth certificate issued after the amendment must be issued as if the original registration had been made as amended.
Amending registration after extra-provincial declaratory order
On receiving an extra-provincial declaratory order of parentage that relates to a child born in Manitoba, together with the Manitoba order recognizing that order and any other documents referred to in subsection 29(2) of The Family Law Act, the director shall, subject to subsection (16), amend the birth registration according to the extra-provincial declaratory order. Every birth certificate issued after the amendment must be issued as if the original registration had been made as amended.
Contradictory declaratory orders
Despite subsections (14) and (15), when the director
(a) receives an extra-provincial declaratory order that contradicts a statement respecting a declaratory order of parentage previously received; or
(b) receives a statement respecting a declaratory order of parentage or an extra-provincial declaratory order that contradicts an extra-provincial order previously received;
the director must not give effect to either order and must restore the birth registration to its original.
Amending registration after written acknowledgment
When the director receives a written acknowledgment of paternity referred to in item 5 of subsection 13(2) of The Family Law Act that in the director's opinion substantially conforms to a joint request under subsection (7), the director may amend the birth registration according to the acknowledgment on payment of the prescribed fee.
Subsection 8(1) is amended
(a) by replacing the section heading with "Registration of given name by director"; and
(b) in the part after clause (b) of the English version, by striking out "both parents" and substituting "the parents".
Subsection 30(7) is replaced with the following:
Notice to Director of Child and Family Services
Within three days of receiving a statement respecting the birth of a child to an unmarried birth mother under the age of 18 years, the director shall send a copy of the statement to the Director of Child and Family Services.
Subsection 32(5) is amended
(a) by repealing clause (e); and
(b) by replacing clause (f) with the following:
(f) the name of each parent and his or her age at the time of the birth;
The Wills Act
The Wills Act is amended by this section.
The following is added after section 35:
Inheritance by posthumously conceived child
Except when a contrary intention appears by the will, a child of a testator, conceived and born after the testator's death, inherits as if the child had been born in the testator's lifetime and had survived the testator if the following conditions are met:
(a) the spouse of the testator, or a person in a marriage-like relationship with the testator when the testator died, gives written notice, within five months from the grant of probate or administration with will annexed, to
(i) the testator's personal representative,
(ii) beneficiaries under the will, and
(iii) successors under The Intestate Succession Act,
that he or she may use reproductive material or an embryo of the testator to conceive a child through assisted reproduction;
(b) the child is born within two years after the testator's death and lives
(i) for the length of time set out in any survivorship clause in the will, or
(ii) if there is no survivorship clause, for at least 16 days;
(c) the testator has been declared to be the child's parent under Part 2 of The Family Law Act.
Inheritance from another relative
The right of a child described in subsection (1) to inherit from the relatives of a testator begins on the date the child is born.
Despite subsection (1), a court may extend the five-month notice period or the two-year time limit set out in that subsection if the court is satisfied that exceptional circumstances warrant doing so.
In this section,
(a) the terms "assisted reproduction", "embryo", "marriage-like relationship" and "reproductive material" have the same meaning as in The Family Law Act; and
(b) sections 9 (date of conception) and 10 (providing reproductive material) of The Family Law Act apply for purposes of interpreting this section.
The Youth Drug Stabilization
(Support for Parents) Act
The definition "parent" in section 1 of The Youth Drug Stabilization (Support for Parents) Act is amended
(a) by replacing clause (a) with the following:
(a) a parent under Part 2 of The Family Law Act or an adoptive parent; or
(b) in clause (b), by striking out "biological or adoptive mother or father" and substituting "parent".
REPEAL
The Family Maintenance Act, R.S.M. 1987, c. F20, except Part VI, is repealed.
C.C.S.M. REFERENCE
This Act may be referred to as chapter F20 of the Continuing Consolidation of the Statutes of Manitoba.
COMING INTO FORCE
This Act comes into force on a day to be fixed by proclamation.
THE FAMILY SUPPORT ENFORCEMENT ACT
TABLE OF CONTENTS
Section
PART 1
INTRODUCTORY PROVISIONS
1 Definitions and interpretation
2 Act binds the Crown
3 Application to existing and future orders and agreements
PART 2
DIRECTOR RESPONSIBLE FOR SUPPORT ENFORCEMENT
4 Director's designation and mandate
5 Director may delegate
6 Protection from liability
PART 3
ENFORCEMENT OF SUPPORT ORDERS
APPLICATION OF ENFORCEMENT PROVISIONS
7 Application of enforcement provisions and commencement
8 Filing of separation agreement
9 Creditor to provide registration documents
10 Opting in or out of enforcement provisions
11 Enforcement for benefit of income assistance recipient
12 Court may apply enforcement provisions to other orders
PAYMENTS TO DIRECTOR AND CREDITOR
13 Debtor to remit payments to director
14 Director to maintain records
15 Director to record payments and pay creditor
SUSPENDING ENFORCEMENT
16 Court order to suspend enforcement
17 End of suspension
18 Effect of suspension order
19 Transitional
CEASING OR REFUSING ENFORCEMENT
20 Director may refuse to enforce support order
21 Director may cease to enforce support order
22 Director may enforce reduced amount
23 Reduced support according to table
24 Requirement for Director of Assistance's consent
25 Enforcement of foreign order
ENFORCEMENT ACTIONS
26 Director to take action on debtor's default
27 Penalty for default
28 Security deposit if debtor in persistent arrears
29 Various enforcement actions
Information About Debtor or Creditor
30 Director may require information to be provided
31 Internet posting to obtain information about debtor
32 Information that may be disclosed
Support Deduction Notice (SDN)
33 Definitions
34 Issuance and duration of support deduction notice
35 Binding effect of support deduction notice
36 Priority of support deduction notice
37 SDN payor's obligations
38 Director may apply for order to enforce payment
39 Order to determine interests or issues
40 Portion of wages and pension benefits exempt
41 Deemed garnishment for purposes of federal Acts
Suspension or Cancellation of Driver's
Licence or Permit and Vehicle Registration
42 Suspension or cancellation of licence or permit and registration
Suspension of Wildlife and Fishing Licences
43 Suspension of Wildlife and Fishing Licences
Preservation Order
44 Order to preserve debtor's assets
Lien on Personal Property
45 Director's lien for arrears and ongoing support payments
46 Registration and priority of lien
47 Director to notify debtor of lien registration
Registration Against Real Property
48 Director may register support order in land titles office
Appointment of Receiver
49 Receiver may be appointed
Third Party Assets Controlled by Debtor
50 Order making third party assets subject to attachment
Lottery Prizes
51 Definitions
52 Enforcement actions re lottery prize
53 Designation of lottery officials
54 Lottery corporation's obligations
55 Protection from liability
Court Proceedings Commenced by Summons
56 Interpretation — Debtor in default
57 Examination of debtor before deputy registrar
58 Show cause hearing before judge or master
59 Hearing into cause of late payment
60 Effect of imprisonment
61 Appeal from master to judge
62 Deputy registrar may issue warrant
63 Judge or master may issue warrant or proceed with hearing
64 Arrest and release of debtor
65 Appeal of detention order
ENFORCEMENT OF COURT COSTS
66 Court costs may be enforced
TRANSITIONAL
67 Transitional — continuation of enforcement
PART 4
MISCELLANEOUS PROVISIONS
68 Action required by court order
69 Rights are additional
70 Creditor may apply for receiver appointment
71 No limitation period
72 Death of debtor or creditor
73 Clarification of support order
74 Adjustment of instalments
75 Computer printout as evidence
76 No interest payable by government
77 Money received for creditor not attachable
78 Debtor may be charged fees
79 Offence
80 Regulations
PART 5
CONSEQUENTIAL AND RELATED AMENDMENTS
81-93 Consequential and related amendments to various Acts
PART 6
REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE
94 Repeal
95 C.C.S.M. reference
96 Coming into force
THE FAMILY SUPPORT ENFORCEMENT ACT
PART 1
INTRODUCTORY PROVISIONS
The following definitions apply in this Act.
"approved form" means a form approved by the director for filing with the director. (« formulaire approuvé »)
"court" means the Court of Queen's Bench or the Provincial Court, unless the context otherwise requires. (« tribunal »)
"creditor" means an individual entitled to receive payments under a support order and includes
(a) the Director of Assistance, or a person acting under his or her authority, in relation to support payments assigned to the Director of Assistance;
(b) an agency under The Child and Family Services Act, in relation to support that is payable to the agency under a court order made under that Act;
(c) a government or agency referred to in section 39 of The Inter-jurisdictional Support Orders Act; and
(d) a minister, member or agency to whom a support order is assigned under section 20.1 of the Divorce Act (Canada). (« créancier »)
"debtor" means a person required to make payments under a support order. (« débiteur »)
"default" means a failure by a debtor to make a payment as required by a support order or this Act. (« être en défaut »)
"deputy registrar" means a deputy registrar of the Court of Queen's Bench. (« registraire adjoint »)
"director", unless otherwise specified, means the director designated under section 4. (« directeur »)
"Director of Assistance" means the Director of Assistance designated under The Manitoba Assistance Act. (« directeur des Programmes d'aide »)
"enforcement provision" means a provision of this Act respecting the enforcement of a support order by the director, including any action the director may take to enforce the payment of support or to obtain information that the director requires to enforce the payment of support. (« mécanisme de recouvrement forcé »)
"entity" means a group or organization, however structured, and includes a partnership, a corporation, an unincorporated association and a sole proprietorship. (« entité »)
"former Act" means The Family Maintenance Act. (« loi antérieure »)
"government" includes an agency of the government. (« gouvernement »)
"income assistance recipient" means a person who is receiving assistance or income assistance as defined in The Manitoba Assistance Act. (« bénéficiaire d'une aide au revenu »)
"judge" means a judge of a court. (« juge »)
"master" means a master of the Court of Queen's Bench. (« conseiller-maître »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"prescribed" means prescribed by a regulation under this Act.
"support" means financial support. It includes maintenance, alimony, an alimentary pension and a compensatory payment ordered under section 76 of The Family Law Act or section 46.0.1 of the former Act. (« aliments »)
"support order" means
(a) an order requiring the payment of support that is made by a court under
(i) The Family Law Act,
(ii) The Child and Family Services Act,
(iii) The Inter-jurisdictional Support Orders Act, or
(iv) the Divorce Act (Canada),
or was made by a court under any of the following repealed Acts:
(v) The Child Welfare Act,
(vi) The Family Maintenance Act,
(vii) The Wives' and Children's Maintenance Act;
(b) an extra-provincial or foreign order registered under Part 2 of The Inter-jurisdictional Support Orders Act;
(c) anything that, immediately before The Reciprocal Enforcement of Maintenance Orders Act was repealed, was a registered order under that Act or a confirmation order made in Manitoba under that Act;
(d) the support provisions of a separation agreement filed with the director under section 8 or with the designated officer under section 53 of the former Act; and
(e) an order to which the enforcement provisions have been made applicable by a court under section 12. (« ordonnance alimentaire »)
Recalculated child support payments
An administrative order that states a recalculated amount of child support under a support order is deemed to be part of the support order.
Meaning of "administrative order"
In subsection (2), "administrative order" means
(a) an administrative order made under section 57 of The Family Law Act stating the amount of recalculated child support;
(b) a recalculated child support order made under section 39.1 of the former Act; and
(c) a recalculation by a provincial child support service outside Manitoba under the Divorce Act (Canada).
|
Information Note Other jurisdictions also recalculate child support payable under support orders. Those recalculations and written support agreements from other jurisdictions are enforceable under this Act if they can be registered under Part 2 of The Inter-jurisdictional Support Orders Act. See clause (b) of the definition "support order" in subsection 1(1) of this Act. |
This Act binds the Crown in right of Manitoba.
Application to existing and future orders and agreements
Except as otherwise provided in this Act, this Act applies to orders and agreements in existence on the day this Act comes into force, as well as to those made or entered into after that day.
PART 2
DIRECTOR RESPONSIBLE FOR SUPPORT ENFORCEMENT
The minister must designate a person as the director for the purposes of this Act.
The director's general mandate is to monitor, record and enforce payments under support orders in accordance with this Act and the regulations.
The director may delegate to any person any power, duty or function conferred or imposed on the director by or under this Act, including the power to delegate.
A reference in any Act or regulation to the director may be read, in relation to anything done or to be done under a delegated power, duty or function, as a reference to the delegate.
No action or proceeding may be brought, and no costs may be assessed, against the director or any person acting under the authority of the director for anything done, or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act or the regulations.
PART 3
ENFORCEMENT OF SUPPORT ORDERS
APPLICATION OF ENFORCEMENT PROVISIONS
Application of enforcement provisions
Except as otherwise provided in or under this Act, the enforcement provisions apply to
(a) a support order made after 1979, unless the creditor has opted out of enforcement under the former Act or this Act and has not opted back in; and
(b) a support order made before January 1, 1980, if the creditor has opted into enforcement under the former Act or this Act and has not opted out.
When enforcement may be commenced
The director may commence enforcement
(a) in the case of a support order made by a court in Manitoba after this Act comes into force, when the director has received
(i) a copy of the order signed by the court, and
(ii) the registration information that the director requires to commence enforcement;
(b) in the case of a support order made under the Divorce Act (Canada) by a court in another province or territory, when the order is registered in a court in Manitoba and the director has received the registration information that the director requires to commence enforcement;
(c) in the case of a support order registered under The Inter-jurisdictional Support Orders Act after this Act comes into force, when the order is so registered and the director has received the registration information that the director requires to commence enforcement;
(d) in the case of a support order consisting of the support provisions of an agreement filed with the director under section 8, when the director has received the registration information that the director requires to commence enforcement and registers the agreement in a court;
(e) in the case of a support order to which the enforcement provisions of the former Act applied immediately before that Act was repealed, on the day this Act comes into force;
(f) in the case of an order to which the enforcement provisions have been made applicable by a court under section 12, when the director has received
(i) a copy of that order,
(ii) a copy of the court's order under section 12, signed by the court, and
(iii) the registration information that the director requires to commence enforcement;
(g) in the case of any other support order, or any support order in relation to which the creditor has opted out of the enforcement provisions, when
(i) the creditor opts in under section 10 or the Director of Assistance notifies the director that the creditor is an income assistance recipient, and
(ii) the director has received the registration information that the director requires to commence enforcement.
Notice of enforcement by director
Subject to the regulations, before commencing the enforcement of a support order, the director must notify the debtor and the creditor that the support order will be enforced by the director.
Separation agreement may be filed
Either party to a separation agreement to which Manitoba law (other than The Inter-jurisdictional Support Orders Act) applies may file the agreement with the director if
(a) both parties to the agreement have consented, in a form acceptable to the director, to the filing of the agreement; or
(b) the agreement contains a provision requiring or permitting it to be filed.
Director to register agreement in court
As soon as practicable after the agreement is filed, the director must register it in a court.
For the purpose of applying the enforcement provisions, if an agreement filed under this section conflicts with a support order made by a court, the support order prevails.
Creditor to provide registration documents
At the director's request, a creditor must file completed registration documents, in an approved form, with the director within the period prescribed by regulation.
A creditor who does not file completed registration documents as required is deemed to have opted out of the enforcement provisions.
If the enforcement provisions do not apply to a support order, the creditor may opt into the enforcement provisions by paying the applicable fee, if any, and filing with the director
(a) a written statement indicating that the enforcement provisions are to apply to the order; and
(b) any registration information that the director requires to commence enforcement of the order.
Subject to section 11, the creditor under a support order may opt out of the enforcement provisions by filing with the director a written statement indicating that the enforcement provisions are not to apply to the order. When the statement is filed, the enforcement provisions cease to apply to the order.
When the creditor opts into or out of the enforcement provisions, the director must notify the debtor that the enforcement provisions apply, or that they no longer apply, as the case may be, to the support order.
The director may charge the creditor a fee, in accordance with the regulations, for a statement filed under subsection (1).
Statement from Director of Assistance
If a creditor is an income assistance recipient, the Director of Assistance may file with the director a statement indicating that the creditor is entitled to support under a support order.
Enforcement provisions apply while creditor receives assistance
Despite any other provision of this Act, the enforcement provisions apply to the support order when the statement is filed, and they continue to apply to the order as long as the creditor continues to be an income assistance recipient.
Court may apply enforcement provisions to other orders
In addition to support orders described in clauses (a) to (d) of the definition "support order" in section 1, a court may make the enforcement provisions applicable to an obligation to pay support under any other order of any court.
PAYMENTS TO DIRECTOR AND CREDITOR
Debtor to remit support payments to director
While the enforcement provisions apply to a support order, the debtor must remit each payment under that order to the director in a manner prescribed by regulation.
Director may specify manner of payment
Despite subsection (1) and any provision of a support order or any other order respecting the manner in which payments are to be remitted, the director may refuse a payment remitted in accordance with the order and require it to be remitted in the prescribed manner specified by the director.
If the amount of a payment being remitted in cash is not divisible by five cents, the director may require the remittance to be rounded up to the nearest five cents. The additional amount is to be credited toward amounts payable by the debtor in the future.
The director must maintain records that will enable the occurrence of a default under a support order to be determined promptly.
Director to record payment and pay creditor
Upon receipt of an amount from a debtor or from another person on account of an amount payable by a debtor, the director must
(a) record the payment and deposit it in the government's trust account for payments received by the director; and
(b) subject to subsection (2), issue a payment to the creditor.
Restrictions on paying creditor
The director is not required to issue a payment to the creditor
(a) in an amount less than $5;
(b) before the creditor has filed completed registration documents with the director;
(c) before the payment received by the director has been cleared by the payor's financial institution; or
(d) if no amount is currently due and owing to the creditor.
SUSPENDING ENFORCEMENT
Suspension of enforcement only under this section
Despite section 38 of The Court of Queen's Bench Act, the enforcement of a support order under this Act may be stayed or suspended by a court only in accordance with this section.
Debtor may apply for suspension order
A debtor may apply to a court for an order (referred to in this section as a "suspension order") that does one or more of the following:
(a) suspends any specified enforcement action taken by the director;
(b) subject to section 18, suspends all enforcement actions taken by the director;
(c) suspends the director's authority to take any or all enforcement actions that could be taken by the director.
The debtor must serve the application, in accordance with the Queen's Bench Rules, on
(a) the creditor;
(b) the Director of Assistance; and
(c) the director, if the creditor resides or is located outside of Manitoba.
Criteria for initial suspension order
The court may make a suspension order in response to the application only if the debtor establishes
(a) a valid reason for not paying the amounts owing under the support order; and
(b) that he or she
(i) has taken all reasonable steps to apply for a variation of the support order or has a valid reason for not doing so, or
(ii) has been unable to enter into a payment arrangement with the director, after making reasonable efforts to do so.
Period and conditions of suspension order
The suspension order
(a) must specify the period of the suspension, which must not exceed six months; and
(b) may impose any conditions the court considers appropriate.
The court may make an order extending the period of the initial suspension for up to six months if, during the period of the initial suspension,
(a) the debtor has applied for a variation of the support order or has taken all reasonable steps to have a prior application for such a variation determined; and
(b) the debtor has applied to the court for the extension and served the application in accordance with subsection (3).
Period and conditions of extension
The order extending the period of the initial suspension
(a) must specify the period of the extension (up to six months);
(b) may modify the conditions that applied to the initial suspension; and
(c) may impose any conditions the court considers appropriate.
Court may order further extension to avoid serious harm to debtor
If a debtor has been granted an extension under subsection (6), the court may make an order granting a further extension if
(a) during the period of the initial extension, the debtor applied to the court for the further extension and served the application in accordance with subsection (3); and
(b) the debtor establishes that
(i) he or she has taken all reasonable steps to have the support order varied or to otherwise address any default in payments under it, and
(ii) serious harm to the debtor will result if enforcement by the director is not suspended for a longer period.
Period and conditions of further extension
An order under subsection (8)
(a) must specify the period of the further extension;
(b) may modify the conditions that applied to the initial extension; and
(c) may impose any new conditions the court considers appropriate.
Despite the provisions of a suspension order under section 16, the suspension ends, and the director may proceed to enforce the support order, immediately after
(a) the last day of the suspension period specified in the order;
(b) the debtor fails to comply with a payment or other condition imposed by the suspension order; or
(c) in the case of an order under subsection (4) or (6), the day that is six months after the day the order was pronounced;
whichever occurs first.
Enforcement actions not affected by suspension
Unless the court orders otherwise, a suspension order under section 16 does not affect any of the following enforcement actions that were commenced before the suspension order was pronounced:
(a) registration of the support order in a land titles office;
(b) proceedings under The Judgments Act in relation to a support order registered in a land titles office;
(c) proceedings to obtain a preservation order under section 44;
(d) registration of a financing statement in the Personal Property Registry;
(e) enforcement action taken under the Family Orders and Agreements Enforcement Assistance Act (Canada), the Garnishment, Attachment and Pension Diversion Act (Canada) or any other federal law.
Effect on existing support deduction notice or garnishing order
If
(a) a support deduction notice under section 34 or a garnishing order for support was issued before the enforcement of the support order was suspended by an order under section 16; and
(b) the court required the debtor to make any payments as a condition of granting the suspension;
the director may suspend the support deduction notice or garnishing order or adjust the amounts attached by it to correspond with the payment condition, but is not required to terminate it.
Actions not affected by suspension
Unless the court orders otherwise, a suspension order under section 16 does not affect
(a) the payment to the creditor of any money that was attached or seized before the order was pronounced; or
(b) the director's ability to enforce the payment of fees under section 78.
If, on the coming into force of this Act, the enforcement of a maintenance order under the former Act was suspended by an order under that Act, that order continues as if it were a suspension order made under section 16 in respect of enforcement under this Act.
Suspension order made before Dec. 3, 2011
If an order suspending enforcement was pronounced before December 3, 2011, the creditor may apply to the court for an order terminating that order.
CEASING OR REFUSING ENFORCEMENT
Director may refuse to enforce support order
The director may refuse to enforce an obligation under a support order if
(a) the provisions setting out the obligation contain errors, are ambiguous or are unsuitable for enforcement; or
(b) the amount of support cannot be determined from the face of the order because it depends on a variable that does not appear in the order.
Subject to section 24, the director may cease to enforce a support order if the creditor fails to provide information or a statutory declaration as required by subsection 30(3) or by an order made under subsection 30(5).
Director may cease to enforce support for adult child
Subject to section 24, the director may cease to enforce a provision that requires the payment of support for an adult child if the debtor notifies the director in writing that he or she believes that the support obligation has ended and the creditor
(a) by written notice to the director, confirms that the support obligation has ended; or
(b) does not, by written notice to the director within 30 days (or 60 days, if the creditor lives outside of Manitoba) after being notified by the director of the debtor's notice, confirm or deny that the obligation has ended.
Debtor entitled to copy of response
The debtor is entitled to receive a copy of the creditor's response to the director, if any, but the director may remove any contact or other identifying information from the copy to be given to the debtor.
Director may resume enforcement
If the director has ceased the enforcement under subsection (2) and the creditor notifies the director in writing that the support obligation has not ended, or that it has been reactivated, the director may resume the enforcement. When resuming enforcement that was ceased under clause (2)(b), the director must calculate the arrears as if the enforcement had not ceased.
Director may enforce reduced support
Subject to section 24, if
(a) a support order requires the payment of support for two or more children and the number of children is specified in the order; and
(b) the director is satisfied that
(i) with respect to one or more but not all of the children,
(A) the support obligation has ended because a terminating event or condition clearly specified in the support order has occurred or been satisfied, or
(B) the enforcement of the support obligation may be discontinued under section 21, and
(ii) the order is clear as to the amount payable as support for the other child or children;
the director may limit the enforcement to the amount payable under the order as support for the other child or children.
Reduced support according to table
Subject to section 24, if
(a) a support order requires the payment of support for two or more children and the number of children is specified in the order; and
(b) the director is satisfied that
(i) the child support requirement accords with the applicable table of the child support guidelines that were in effect at the time the order was made, and
(ii) with respect to one or more but not all of the children,
(A) the support obligation has ended because a terminating event or condition clearly specified in the support order has occurred or been satisfied, or
(B) the enforcement of the support obligation may be discontinued under section 21;
the director may limit the enforcement to the amount that would have been payable in accordance with the applicable table of the child support guidelines had the number of children at the time the order was made been the number of children in respect of whom the enforcement of the support order is continued.
"Child support guidelines" defined
In this section, "child support guidelines" means
(a) the child support guidelines established by regulation under the former Act or The Family Law Act; or
(b) the Federal Child Support Guidelines under the Divorce Act (Canada);
whichever guidelines apply.
Requirement for Director of Assistance's consent
If the support receivable under a support order has been assigned to the Director of Assistance, the director must not cease to enforce the order or reduce the level of support being enforced without the written consent of the Director of Assistance.
When this section applies — support order filed in reciprocating jurisdiction
This section applies when the director has taken steps under clause 29(o) to have a support order (the "prior support order") enforced in a reciprocating jurisdiction outside Canada but the order conflicts with a support order subsequently made by a court in that jurisdiction (the "foreign order").
Director may enforce foreign order
The director may cease to enforce the prior support order (including any arrears, penalties or cost recovery fees) and instead enforce the foreign order, if all of the following conditions are met:
(a) the foreign order relates to the same creditor and debtor as the prior support order;
(b) the court that made the foreign order did so in relation to a proceeding to set aside registration or to refuse recognition of the prior support order;
(c) the foreign order is registered for enforcement by the appropriate authority in the reciprocating jurisdiction;
(d) the foreign order is registered under Part 2 of The Inter-jurisdictional Support Orders Act.
Period during which director may enforce foreign order
The enforcement provisions apply to the foreign order only as long as it remains enforceable by the appropriate authority in the jurisdiction in which the debtor resides, or until a further order is made.
Arrears if director resumes enforcement of prior order
If the foreign order ceases to be enforceable as set out in subsection (3), the director may resume enforcement of the prior support order. In that case, arrears are to be calculated as if the support obligation under the prior support order began in the month after the month in which the foreign order ceased being enforceable.
If support has been assigned to Director of Assistance
When support receivable under a prior support order has been assigned to the Director of Assistance,
(a) the consent of the Director of Assistance under section 24 is not required for the director to cease enforcing the prior support order under this section; and
(b) the assignment is deemed to apply to support receivable under the foreign order being enforced under this section.
Court application if party objects
A debtor or creditor who objects to any action taken by the director under this section may apply to the court, on notice to the director, for an order respecting the enforcement of the prior support order or the foreign order.
Meaning of "reciprocating jurisdiction"
In this section, "reciprocating jurisdiction" has the same meaning as in The Inter-jurisdictional Support Orders Act.
ENFORCEMENT ACTIONS
Director to take action on default
If it appears to the director that a debtor is in default under a support order to which the enforcement provisions apply,
(a) the director must take such action as he or she considers necessary or advisable to determine whether the debtor is in default; and
(b) if satisfied that the debtor is in default, the director must
(i) determine the amount in default,
(ii) assess a penalty under section 27, and
(iii) take such other action under this Act or any other law as the director considers necessary or advisable to enforce payment of the amount in default.
If a debtor
(a) fails to make a payment as required by a support order; or
(b) fails to make a payment required to comply with a condition included in an order suspending the enforcement of a support order, or in an order extending such a suspension, whether the order was made before or after the coming into force of this Act;
the director must assess a penalty against the debtor in accordance with the regulations.
The penalty is a debt that the debtor owes to the creditor.
Director may enforce payment of penalty
The director may take any action to enforce the payment of the penalty that the director may take to enforce a support order, other than
(a) a proceeding to bring the debtor before a deputy registrar for an examination under section 57 or before a judge or master for a hearing under section 58; or
(b) notifying the debtor under section 42 of possible action under The Highway Traffic Act.
Director may cease to enforce penalty
The director may cease to enforce the payment of the penalty if
(a) the amount owing is less than the amount prescribed by regulation; and
(b) the debtor is not in default under a support order and is not required to make periodic payments of support that are to be enforced by the director.
Upon application, a court may cancel the penalty, in whole or in part, if the court is satisfied that
(a) having regard to the interests of the debtor or the estate of the debtor, it would be grossly unfair not to do so; and
(b) having regard to the interests of the creditor or the estate of the creditor, the cancellation is justified.
Security deposit if debtor in persistent arrears
Subject to the regulations, if a debtor is in persistent arrears under a support order to which the enforcement provisions apply, the director may notify the debtor that he or she must pay a security deposit to the director in an amount equal to the support the debtor is obliged to pay under the support order over a two-month period.
Enforcement of security deposit
The director may enforce payment of a security deposit by issuing a support deduction notice under section 34. In that event, section 34 applies, with necessary changes, to the enforcement.
Meaning of "persistent arrears"
In this section, "persistent arrears" means, in relation to a support order, arrears due to the failure to make in full the payments required for any three payment periods, within the meaning of the support order.
In addition to any other enforcement actions that may be taken, the director may do one or more of the following:
(a) issue a support deduction notice under section 34 and take any action that may be taken to enforce payment in accordance with the notice;
(b) take steps to obtain a garnishing order under The Garnishment Act;
(c) under section 42,
(i) notify the debtor that action may be taken under section 273.1 of The Highway Traffic Act (suspension or cancellation of driver's licence or permit and vehicle registration), or
(ii) if unable to notify the debtor, issue a request for action to be taken under section 273.2 of The Highway Traffic Act (refusal to issue or renew driver's licence or permit or vehicle registration);
(d) under section 43, request the minister responsible for The Wildlife Act or The Fisheries Act to prohibit a debtor in default from holding or applying for a licence;
(e) apply under section 44 for a court order to preserve assets;
(f) register a lien in the Personal Property Registry under section 46;
(g) register the support order in a land titles office under section 48 and take any action that may be taken under The Judgments Act to enforce the registered order;
(h) take steps to obtain a writ of execution under The Executions Act;
(i) apply under section 49 for the appointment of a receiver to take action as permitted by that section;
(j) apply under section 50 for an order that makes assets over which the debtor exercises authority subject to attachment and execution;
(k) issue a summons under section 57 to bring the debtor before a deputy registrar for an examination under that section;
(l) issue a summons under section 58 to bring the debtor before a judge or master for a hearing under that section;
(m) provide a personal reporting agency, as defined in The Personal Investigations Act, with information indicating that the debtor is in default under the support order but, despite clause 4(e) of that Act, without providing the address of the creditor;
(n) take steps to prohibit a debtor in default from holding an enhanced identification card under The Drivers and Vehicles Act, if authorized to do so by regulation under clause 80(j);
(o) take steps to have the support order enforced in another jurisdiction;
(p) take any steps that may be taken under a federal law to enforce payments under a support order.
Information About Debtor or Creditor
Director may request information from debtor or creditor
For the purpose of determining the amount of support payable under a support order or the appropriate enforcement action to be taken, the director may, in writing, request the debtor or creditor, or both of them,
(a) to provide, in writing, all information within his or her direct knowledge as to the financial or other circumstances of either or both of them or of a person for whom the support is payable; or
(b) to make a statutory declaration containing that information and provide it to the director.
Director may request information from others
The director may, in writing, request a person, the government or another entity to provide, in writing, any information in their possession or control about
(a) a creditor's whereabouts;
(b) a debtor, including
(i) the debtor's whereabouts,
(ii) the name and address of the debtor's employer,
(iii) the debtor's financial means, including source of income and payroll records,
(iv) the debtor'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 debtor's pension and pension benefit credits, as defined in subsection 1(1) of The Pension Benefits Act,
(vi) the debtor's income tax returns and assessment notices,
(vii) the debtor's social insurance number,
(viii) circumstances that affect or could affect the amount paid under the support order,
(ix) the extent of the debtor'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 debtor and a person referred to in paragraph (A) or (B), and
(x) any benefits the debtor 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) made by a designated authority under that Act or in a similar request made by the Attorney General for the purpose of performing a function under section 18 or 19 of the Divorce Act (Canada).
Requirement to provide information
A person, the government or another entity served with a request for information under this section must, despite any other law, comply with the request and provide the requested information without charge within 21 days after the request it is served.
If a person, the government or another entity fails to comply with subsection (3), the director may take such action as he or she considers necessary or advisable, including
(a) applying for an order under subsection (5); or
(b) issuing a summons to bring the debtor
(i) before a deputy registrar for an examination under section 57, or
(ii) before a judge or master for a hearing under section 58.
On application by the director, a judge or master may make an order, subject to such terms and conditions as the judge or master considers necessary or advisable,
(a) compelling a person, the government or another entity to give the requested information to the director; or
(b) compelling a person to report to the director and complete a statutory declaration containing the requested information.
Access to information or databanks
If information described in subsection (2) is included in a database or other collection of information maintained by a person, the government or another entity, the director may enter into an arrangement with the person, government or other entity permitting the director to have access to the database or collection to the extent necessary to obtain the information without having to make a request under that subsection. The arrangement must include reasonable security arrangements to protect information against such risks as unauthorized access, use, disclosure and destruction.
Internet posting to obtain information about debtor
In order to locate a debtor who is in default under a support order, the director may post on a website on the Internet the name and other prescribed information relating to the debtor, if
(a) a warrant for the debtor's arrest has been issued under section 62 or 63;
(b) the director has reason to believe that the debtor has wilfully failed to pay support; and
(c) other prescribed conditions are satisfied.
Information posted on a website must be removed within a reasonable time once it is no longer needed to locate the debtor.
Information that may be disclosed
Information received by the director under this Act is confidential, but the director may
(a) use it to enforce a support order;
(b) for the purpose of enforcing a support order, give it to an appropriate authority in another province, territory or other reciprocating jurisdiction as defined in The Inter-jurisdictional Support Orders Act;
(c) give information about a creditor's or debtor's whereabouts and the name and address of a debtor's employer to
(i) a designated authority under The Inter-jurisdictional Support Orders Act for the purpose of carrying out the authority's powers and duties under that Act,
(ii) the Attorney General for the purpose of performing a function under section 18 or 19 of the Divorce Act (Canada), and
(iii) the child support recalculation service continued under section 56 of The Family Law Act for the purpose of carrying out its powers and duties;
(d) give to a designated authority under The Inter-jurisdictional Support Orders Act information about the whereabouts of a person named in a request to locate made by a designated authority under that Act;
(e) advise the creditor of the name of another jurisdiction in which the support order is being enforced at the director's request;
(f) advise the debtor of the name of another jurisdiction at whose request the director is enforcing a support order;
(g) disclose personal information about an individual to any person if
(i) the individual has identified the information and consented to the disclosure of it, and
(ii) the director considers it appropriate to disclose it.
Support Deduction Notice (SDN)
The following definitions apply in this section and sections 34 to 41.
"pension benefit" has the same meaning as in subsection 14(4) of The Garnishment Act. (« prestation de pension »)
"SDN payor" means the person, government or other entity required to pay under a support deduction notice. (« tier saisi »)
"support deduction notice" means a notice issued under subsection 34(1). (« avis de retenue des aliments »)
"wages" includes salary, commission and fees, and any other money payable by an employer to an employee in respect of work or services performed in the course of employment, but it does not include any deductions made by the employer under any Act of the legislature of any province or the Parliament of Canada. (« salaire »)
Director may issue support deduction notice
The director may issue to a person, the government or another entity (the "SDN payor") a written notice that requires the SDN payor to pay to the director, on account of amounts payable by a debtor to the director under this Act, amounts that are or become owing or otherwise payable by the SDN payor to the debtor. The support deduction notice may be in respect of arrears or periodic payments, or both.
If the director is seeking to collect arrears from the SDN payor, the support deduction notice must specify the amount in arrears as of the date the notice is issued.
Content of notice — periodic payments
If the director is seeking to collect periodic payments from the SDN payor, the support deduction notice must specify the amounts to be paid and when they are to be paid.
Director may adjust, suspend, reactivate or terminate support deduction notice
In circumstances prescribed by regulation, the director may adjust, suspend, reactivate or terminate a support deduction notice by written notice to the SDN payor. After doing so, the director must notify the debtor in writing of the change.
Duration of support deduction notice
A support deduction notice remains in force until
(a) it is replaced by another support deduction notice;
(b) the director terminates it;
(c) the debt for which the notice was issued is satisfied; or
(d) if the notice applies to wages payable to the debtor, the SDN payor ceases to employ the debtor and no longer owes wages to the debtor.
SDN payor to notify director if employment ends
If the support deduction notice binds wages of the debtor, the SDN payor must notify the director if the employment of the debtor ceases while the support deduction notice remains in force.
Binding effect of support deduction notice
When a support deduction notice is served on the SDN payor, it binds, for as long as the notice remains in force,
(a) except in the case of wages,
(i) all money that, at the time of service, is owing or payable by the SDN payor to the debtor,
(ii) all money that, after the time of service, becomes owing or payable by the SDN payor to the debtor from time to time, and
(iii) all money that is or becomes owing or payable by the SDN payor to the debtor and one or more other persons jointly and is presumed by subsection (2) to be owing or payable by the SDN payor only to the debtor;
(b) all wages that are or become due and payable by the SDN payor to the debtor on or after the first day, other than a holiday, after the day of service; and
(c) the debtor's pension benefits, as if they were wages, in the same manner as a garnishing order binds pension benefits under section 14 of The Garnishment Act.
Money owing to debtor and others jointly
For the purpose of subsection (1),
(a) money that, at the time of service, is owing or payable by the SDN payor to the debtor and one or more other persons jointly is presumed to be owing or payable only to the debtor; and
(b) money that, at any time after the time of service, becomes owing or payable by the SDN payor to the debtor and one or more other persons jointly is presumed to become owing or payable at that time only to the debtor.
Priority of support deduction notice
A support deduction notice
(a) has the same priority as a garnishing order for support has under The Garnishment Act; and
(b) has priority over
(i) any other type of garnishing order served on the SDN payor, and
(ii) any debt owing by the debtor to the SDN payor.
SDN payor to notify debtor and others
Upon being served with a support deduction notice, the SDN payor must promptly give a copy of the notice
(a) to the debtor; and
(b) if money is or becomes owing or payable by the SDN payor to the debtor and one or more other persons jointly while the support deduction notice remains in force, to each of those other persons.
SDN payor to file response with director
Within seven days after being served with a support deduction notice, the SDN payor must complete the response form that accompanied the notice and return the completed form to the director.
SDN payor to remit amounts to director
For as long as a support deduction notice remains in force, the SDN payor must remit the amount or amounts payable under it to the director
(a) in the case of an amount payable for arrears, within seven days after
(i) the SDN payor is served with the notice, or
(ii) the money becomes payable by the SDN payor to the debtor,
whichever is later; and
(b) in the case of an amount payable as a periodic payment, within seven days after
(i) the amount becomes payable, as set out in the notice, or
(ii) the money becomes payable by the SDN payor to the debtor,
whichever is later.
Payment discharges SDN payor's obligation
A payment by the SDN payor pursuant to the support deduction notice discharges, to the extent of the payment,
(a) the SDN payor's obligation to the debtor; and
(b) in the case of money owing to the debtor and one or more other persons jointly, the SDN payor's obligation to all of them.
SDN payor not to charge fees or costs
Except as permitted by the regulations, an SDN payor must not charge the debtor any fee or cost for complying with this Act in relation to a support deduction notice.
Director may apply for order to enforce payment
If the SDN payor
(a) does not pay an amount attached by the notice and does not give the director a satisfactory explanation, in writing, for not paying it; or
(b) pays an amount attached by the notice to a person other than the director;
the director may apply to a court for an order under this section. The director must serve the application on the SDN payor.
The court may order the SDN payor to pay to the director the amount required to be paid under the support deduction notice.
Application for order to determine interests or issues
The director, the SDN payor, the debtor or any other interested person may apply to a court for an order determining any issue regarding a support deduction notice, which may include an order determining
(a) the debtor's interest in money that is presumed by subsection 35(2) to be owing and payable to the debtor; and
(b) the rights and liabilities of the SDN payor, the debtor or any other interested person.
The burden of establishing that the debtor's interest in the money is less than the amount attached is on the person making the application.
An application for an order under clause (1)(a) must be made within 21 days after the support deduction notice is served on the SDN payor.
Portion of wages and pension benefits exempt
If wages or pension benefits, or both, are attached by a support deduction notice, the total sum of $250 per month, or any greater amount prescribed by regulation or determined by an order under this section, is exempt from attachment by the notice. The exempt amount is to be prorated for any part of a month.
Allocation of exemption among two or more SDN payors
If support deduction notices attaching wages or pension benefits, or both, are issued to two or more SDN payors, the director must
(a) determine how the monthly exemption is to be allocated; and
(b) specify in each notice the portion of the monthly exemption under subsection (1) that applies to the SDN payor under that notice, if any.
Debtor may apply to registrar to vary exemption
The debtor named in a support deduction notice may apply to the registrar of the Court of Queen's Bench, in accordance with the regulations, for an order varying the amount of the monthly exemption under subsection (1).
No order under this section may
(a) have the effect of increasing the exemption to more than 90% of the total wages and pension benefits bound by one or more support deduction notices in force at the time the order is made; or
(b) reduce the exemption below $250 per month or any greater amount prescribed by regulation.
Debtor may appeal registrar's order
The debtor may, within 14 days after the order is pronounced, appeal the registrar's order to a judge of the Court of Queen's Bench. The judge may confirm the order or, subject to subsection (4), vary it.
Deemed garnishment for purposes of federal Acts
The provisions in this Part and the regulations respecting support deduction notices are deemed to be provisions under provincial garnishment law for the purposes of the Family Orders and Agreements Enforcement Assistance Act (Canada) and the Garnishment, Attachment and Pension Diversion Act (Canada).
Suspension or Cancellation of Driver's Licence
or Permit and Vehicle Registration
In this section, "registrar" means the Registrar of Motor Vehicles appointed under The Drivers and Vehicles Act.
Notice of possible action under Highway Traffic Act
If a debtor defaults in payment, the director may notify the debtor, in accordance with the regulations, that action will be taken under section 273.1 of The Highway Traffic Act (suspension or cancellation of driver's licence or permit and vehicle registration) without further notice to the debtor unless the debtor complies with this section.
The notice must advise that the action will be taken unless the debtor, within 30 days after the day the notice is served,
(a) pays the arrears in full;
(b) proposes to the director a plan for payment of the arrears that the director considers reasonable; or
(c) requests the director to arrange a hearing before a judge or master to determine payment of the arrears.
Director to arrange hearing before judge or master
If, within that 30-day period, the debtor requests the director to arrange a hearing, the director must
(a) arrange for a hearing before a judge or master for the sole purpose of considering and determining the payment of arrears; and
(b) advise the debtor, or his or her lawyer, of the date, time and place of the hearing.
The judge or master hearing the matter must consider the evidence adduced at the hearing and may make an order
(a) requiring the debtor to pay the arrears in full by a specified date;
(b) requiring the debtor to make periodic payments on account of the arrears according to a specified schedule;
(c) determining that the debtor cannot at that time make payments on the arrears;
(d) adjourning the hearing, with or without conditions, if the judge or master is satisfied that the debtor requires additional time to obtain counsel or provide additional financial or other information to the court; or
(e) dismissing the proceedings.
Suspension or cancellation of driver's licence and vehicle registration
If
(a) the debtor, after being served with a notice under subsection (2),
(i) fails to respond to the notice within 30 days as set out in the notice,
(ii) fails to appear at a hearing arranged by the director at the debtor's request, or
(iii) fails to make a payment under a payment plan proposed by the debtor and accepted by the director or under the order of the judge or master who determined the payment of arrears; or
(b) proceedings are dismissed by a judge or master under clause (5)(e);
the director may request the registrar to take action in respect of the debtor under section 273.1 of The Highway Traffic Act (suspension or cancellation of driver's licence or permit and vehicle registration).
Refusal to issue or renew driver's licence or permit or vehicle registration
If the director is not able to serve the notice under subsection (2) in accordance with the regulations, the director may request the registrar to take action under section 273.2 of The Highway Traffic Act (refusal to issue or renew driver's licence or permit or vehicle registration).
Subsequent proposal for payment of arrears
If, after the director makes a request under subsection (6) or (7), the debtor proposes a payment plan acceptable to the director, the director must take whatever action is necessary to implement the plan.
Notice to registrar of compliance
If, after the director makes a request under subsection (6) or (7),
(a) the debtor is no longer in default;
(b) the debtor is complying with a new payment plan proposed by the debtor and accepted by the director; or
(c) the support order is no longer being enforced by the director;
the debtor is deemed to be in compliance with this section and the director must notify the registrar of that compliance.
Deemed failure to comply with section
A failure by a debtor
(a) to attend a hearing arranged by the director at the debtor's request; or
(b) to make a payment under a plan proposed by the debtor and accepted by the director or under an order of the judge or master;
is deemed to be a failure to comply with this section.
Arrears due if debtor defaults
If the debtor fails to make any payment when it is due under a plan accepted by the director or under an order of the judge or master, the full amount of the arrears becomes immediately due and payable.
Suspension of Wildlife and Fishing Licences
The following definitions apply in this section.
"licence" means
(a) a licence of a prescribed type or class issued under The Wildlife Act; or
(b) an angling licence for recreational fishing issued under The Fisheries Act. (« permis »)
"responsible minister" means the minister responsible for the administration of The Wildlife Act or The Fisheries Act, as the case may be. (« ministre responsable »)
Director may request suspension of wildlife and fishing licences
The director may request the responsible minister to suspend a licence of the debtor, or refuse to issue any new licence to the debtor, if
(a) the debtor is in arrears under a support order in an amount not less than three months' payments;
(b) in the director's opinion, all reasonable steps have been taken to enforce the support order;
(c) the director has notified the debtor, in accordance with the regulations, of the director's intention to request the responsible minister to prohibit the debtor from holding or applying for a licence; and
(d) the debtor has not, within the 30-day period after receiving the notice, paid the arrears in full or proposed a plan acceptable to the director for their payment.
Suspension and refusal to issue
On receiving a request from the director, the responsible minister must
(a) suspend any licences that were issued to the debtor; and
(b) refuse to issue any new licences to the debtor until the director notifies the minister that the debtor's licences may be reinstated.
The director must notify the responsible minister that the debtor is entitled to hold or be issued a licence when
(a) the debtor is no longer in default;
(b) the debtor is complying with a payment plan acceptable to the director; or
(c) the support order is no longer being enforced by the director.
On receiving a notice from the director under subsection (4), the responsible minister must reinstate any licences that were suspended and issue any new licences that the person requests and to which he or she is otherwise entitled.
Preservation Order
Director may apply for order to preserve assets
If the director believes a debtor is likely to evade, hinder or defeat the enforcement of a support order by wasting, dissipating or disposing of assets that the debtor owns, possesses or controls, the director may apply to the Court of Queen's Bench for an order preserving those assets.
The application may be made without notice.
The judge or master hearing the application may make one or more of the following orders if he or she finds that the debtor is likely to waste, dissipate or dispose of assets in such a way as to evade, hinder or defeat the enforcement of a support order:
(a) an order directing the debtor or any other person to preserve any assets that the debtor owns, possesses or controls;
(b) an order requiring the debtor to deposit a specified amount of money in the court or with the director or any other person the judge or master considers appropriate, to be held as security and for use in the event of a default under the support order or a subsequent variation of the support order;
(c) an order setting aside a non-arm's length transaction between the debtor and another person;
(d) such other order as the judge or master considers appropriate.
Lien on Personal Property
Lien for arrears and ongoing support payments
For the purpose of enforcing a support order, the director has a lien on every estate or interest in the personal property of the debtor, including personal property acquired by the debtor after the order was made or a payment under it became due.
The lien secures the payment of
(a) the amount in arrears at the time the lien takes effect;
(b) all additional payments that become due under the support order after the lien takes effect and before it is discharged;
(c) disbursements for the registration and discharge of the lien;
(d) expenses reasonably incurred by the director in taking, holding, repairing, processing, preparing for disposition or disposing of property in respect of which the lien is registered; and
(e) a prescribed administration fee.
The lien takes effect in relation to the debtor's personal property when the director registers a financing statement in the Personal Property Registry under section 46.
The lien and its priority are not lost or impaired by taking or failing to take any other enforcement action to enforce the support order, or by the tender or acceptance of any payment on account of that obligation.
If a debtor is in default under a support order, the director may register the lien created by section 45 against the debtor's personal property by registering a financing statement in the Personal Property Registry that states
(a) the director's address for service;
(b) the name and address of the debtor; and
(c) any other prescribed matter.
Upon registration of the lien,
(a) the director is deemed to be a secured party under The Personal Property Security Act and the debtor is deemed to be a debtor under that Act;
(b) the debtor is deemed to have signed a security agreement stating that a security interest is taken in all of the debtor's present and after-acquired property, and the lien is deemed to be a perfected security interest in that property;
(c) the lien is enforceable under The Personal Property Security Act as if it were a lien under the agreement referred to in clause (b) and the debtor were in default under that agreement; and
(d) The Personal Property Security Act and the regulations under that Act apply to the lien, with necessary changes, except as otherwise provided by this section.
The lien has priority over every security interest and every claim to or right in the personal property of the debtor under any Act other than
(a) a purchase money security interest in collateral, as defined in The Personal Property Security Act, that was perfected when the debtor obtained possession of the collateral or within 15 days after the debtor obtained possession of it;
(b) a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act;
(c) a lien under section 101 of The Employment Standards Code for which a financing statement has been registered in the Personal Property Registry; or
(d) a garage keeper's lien under The Garage Keepers Act or a lien that, under any other Act, may be enforced as a lien under The Garage Keepers Act.
Director may postpone, amend, renew or discharge lien
The director may, by registering the appropriate document in the Personal Property Registry,
(a) postpone the director's interest under a financing statement; or
(b) amend, renew or discharge a financing statement.
Director to notify debtor of lien registration
Within 15 days after registering a financing statement under section 46, the director must serve a notice on the debtor stating
(a) that the director has a lien against the personal property of the debtor with respect to the support order and has registered a financing statement in the Personal Property Registry;
(b) the amount secured by the lien as of the date the financing statement was registered;
(c) that the director may take possession and dispose of the personal property of the debtor if the amount of the lien is not paid within 15 days after the notice is served in accordance with the regulations; and
(d) the address and telephone number where the debtor may obtain further information.
Registration Against Real Property
Registration in land titles office
The director may register a support order in any Manitoba land titles office. Upon registration, it is deemed to be an order to which sections 9 and 21 of The Judgments Act apply.
Judgments Act exemptions do not apply
The exemptions provided by The Judgments Act do not apply with respect to any process issued by a court to enforce a support order.
Appointment of Receiver
Director may apply for appointment of receiver
If a debtor is in default under a support order, the director may apply to a court for the appointment of a receiver.
Receiver's appointment and duties
The judge or master hearing the application may appoint a receiver to take any or all of the following actions for the purpose of satisfying the payments due or accruing due under the support order:
(a) collect any money due, owing or payable to, or to become due, owing or payable to, or earned or to be earned by, the debtor;
(b) take all steps necessary to apply for and receive any benefit, credit, interest or entitlement available to the debtor;
(c) take all steps necessary to take possession of and realize upon property in which the debtor has an interest or entitlement;
(d) take all steps necessary to pursue any action that is available to the debtor;
(e) take any other steps or be given any other authority that the judge or master considers necessary or advisable.
Appointment of receiver without application
If a debtor in default under a support order is before a judge or master for any other purpose under this Act, the judge or master may there and then appoint a receiver under subsection (2) without a prior application for it.
Exemptions under Garnishment Act
The wages of the debtor that may be collected by a receiver appointed under this section 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.
Third Party Assets Controlled by Debtor
Director may apply for order attaching assets of corporation or other person
The director may apply to the Court of Queen's Bench for an order declaring assets of a corporation or another person to be subject to garnishment or execution for the payment of arrears owing by a debtor under a support order if
(a) the debtor is in default under the support order; and
(b) the director believes that the debtor is exercising authority over the assets of the corporation or other person.
The application may be made without notice.
If the judge hearing the application is satisfied that the debtor is in default and is exercising, or has exercised, authority over the assets of a corporation or other person, the judge may make an order that does one or more of the following:
(a) declares that the assets legally owned or otherwise held by the corporation or other person are assets of the debtor and directs that the assets or any specific portion of them are subject to garnishment, execution, or an order of receivership under section 49, as the case may be, for the purposes of paying the arrears under the support order;
(b) gives any other direction or does anything else that the judge considers appropriate in the circumstances;
(c) awards costs.
Exercising authority over assets
For the purpose of this section, a debtor is deemed to be exercising authority over assets of a corporation or other person if, although the assets are legally owned or otherwise held by the corporation or other person,
(a) the debtor, or another person on his or her behalf, uses or otherwise deals with or is in a position to use or otherwise deal with the assets in a manner similar to that of a person who legally owns or otherwise holds the assets; or
(b) the debtor, 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 debtor or another person on his or her behalf, or
(ii) to permit the debtor, or another person on his or her behalf, to use or otherwise deal with the assets in a manner similar to that of a person who legally owns or otherwise holds the assets.
Lottery Prizes
The following definitions apply in this section and sections 52 to 55.
"business day" means a day on which the director's office is open during its regular hours of business. (« jour ouvrable »)
"lottery corporation" means the Western Canada Lottery Corporation and includes a corporation that is a successor to it. (« société »)
"lottery official" means an employee or director of the lottery corporation designated under section 53. (« représentant de la loterie »)
"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 $1,001 or more. (« prix de loterie »)
"lottery scheme" means a lottery scheme within the meaning of the Criminal Code (Canada) that is conducted and managed by the lottery corporation. (« loterie »)
"lottery ticket" means a ticket, certificate, subscription form or other evidence of participation in a lottery scheme. (« billet de loterie »)
"Manitoba claimant" means a person entitled to all or part of a lottery prize who makes a claim in Manitoba or has a Manitoba address. (« gagnant »)
Enforcement actions re lottery prize
Whether or not other enforcement actions are being taken, the director may, with respect to a lottery prize being claimed by or on behalf of a debtor, do one or more of the following:
(a) issue a support deduction notice under section 34;
(b) take steps to obtain a garnishing order under The Garnishment Act;
(c) take steps to obtain a writ of execution under The Executions Act.
Designation of lottery officials
The lottery corporation must designate, in writing, one or more employees or officers of the corporation as lottery officials who are authorized by the corporation to
(a) obtain information from the director's records; and
(b) carry out the corporation's obligations under section 54.
Lottery corporation's response to claim for prize
When a Manitoba claimant claims a lottery prize, the lottery corporation must
(a) obtain the names of all Manitoba claimants for the prize as well as any identifying and other information required in the regulations; and
(b) take possession of the lottery ticket.
Lottery official to search records
For each Manitoba claimant identified under subsection (1), a lottery official must, on behalf of the lottery corporation and using the claimant's name and other information as permitted by the regulations, search the director's records as allowed under subsection (3) to determine if the claimant is a debtor.
Director to allow searches of records
The director must allow a lottery official to search the director's records of the names of debtors and other identifying information about debtors for the purpose of determining whether a Manitoba claimant is one of those debtors.
If claimant listed in records as a debtor
If a search under subsection (2) indicates that the Manitoba claimant is a debtor, the lottery corporation must
(a) immediately notify the director in accordance with the regulations of
(i) the claimant's name and other identifying information and any other information required by the regulations, and
(ii) the details, including the value, of the lottery prize being claimed;
(b) retain the lottery ticket; and
(c) withhold payment or delivery of the lottery prize until the close of business at the director's office on the business day after the business day on which the director receives notice under clause (a), unless the director notifies the corporation in writing, in accordance with the regulations, that all or part of the lottery prize can be paid or delivered.
If a Manitoba claimant for a non-monetary prize is a debtor, the lottery corporation must substitute a monetary prize at the director's request.
No employee, officer or agent of the lottery corporation may use or disclose any information provided or obtained from the director's records except for the purposes of this section.
No action or proceeding may be brought against the lottery corporation or a lottery official for anything done in good faith in the exercise or intended exercise of a power or duty under section 53 or 54.
Court Proceedings
Commenced by Summons
Interpretation — debtor in default
For the purposes of sections 57 and 58, a debtor is in default if he or she
(a) is in arrears under a support order; or
(b) fails to provide information or a statutory declaration as required by subsection 30(3) or by an order made under subsection 30(5).
Examination of debtor before deputy registrar
The director may issue a summons, to be served personally or in any other manner a judge or master may direct, requiring a debtor
(a) to appear before a deputy registrar of the Court of Queen's Bench at a time and place stated in the summons to be examined in respect of
(i) any default of the debtor, and
(ii) the debtor's employment, income, assets and financial circumstances; 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.
At the conclusion of the examination, the deputy registrar must promptly provide the director with the information obtained at the examination, including a copy of the financial statement filed by the debtor, and may
(a) refer the matter back to the director for enforcement;
(b) order the debtor to appear for a hearing under section 58;
(c) order the debtor to make payments in accordance a plan agreed to in writing by the creditor, unless the director has been notified by the Director of Assistance that the creditor is an income assistance recipient;
(d) if the debtor has proposed a payment plan that the deputy registrar considers reasonable, order the debtor to make payments in accordance with the plan;
(e) adjourn the examination with or without conditions for not more than 28 days, or any longer period agreed to by the director, to allow
(i) the debtor to retain counsel,
(ii) the debtor to pay the arrears,
(iii) the debtor to file and serve an application for a variation of the support order and cancellation of the arrears,
(iv) the creditor, if he or she is not an income assistance recipient, to opt out of the enforcement provisions in accordance with subsection 10(2) or to file a consent to a payment plan proposed by the debtor,
(v) the debtor to provide such further evidence as the deputy registrar requires, including evidence of employment status, or
(vi) the director to recalculate the amount in arrears, if the amount has been brought into question by the debtor.
If the deputy registrar makes an order under clause (2)(d),
(a) the director must promptly advise the creditor of the terms of the order; and
(b) taking into consideration any concern expressed by the creditor, the director 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 debtor 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.
If the director issues a summons under subsection (3), the deputy registrar's order under clause (2)(d) remains in force until a judge or master hears the matter under subsection (3) and makes an order.
Arrears due if debtor defaults
If the debtor fails to make any payment when it is due under an order made under clause (2)(d), the full amount of the arrears specified in the order becomes immediately due and payable.
Show cause hearing before judge or master
The director may issue a summons, to be served personally or in any other manner a judge or master may direct, requiring a debtor
(a) to appear before a judge or master at a time and place stated in the summons to
(i) be examined in respect of financial means and other circumstances, and
(ii) show cause why the debtor's support order should not be enforced under this section; and
(b) at or before the hearing, to complete and file with the court a financial statement in a form satisfactory to the judge or master.
The judge or master hearing the matter must consider the evidence adduced at the hearing and may make an order that does one or more of the following in respect of the debtor:
(a) imposes a fine of not more than $10,000 or a term of imprisonment for not more than 200 days, or both, if the debtor is found to be wilfully in default;
(b) determines whether the debtor is in default under the support order and, if so, fixes the amount of arrears for the purpose of enforcement under this Act;
(c) requires the debtor to pay the arrears in full by a specified date;
(d) requires the debtor to make periodic payments on account of the arrears according to a specified schedule;
(e) adjourns the hearing with or without conditions if the judge or master is satisfied that
(i) the debtor cannot at that time make payments on the arrears, or
(ii) the debtor reasonably requires time to obtain counsel, provide additional financial or other information to the court or make specified payments on the arrears;
(f) requires the debtor to deposit a specified amount of money in the court or with the director or any other person the judge or master considers appropriate, to be held as security and for use in the event of a default under the support order or a subsequent variation of the support order;
(g) requires the debtor to deposit security in a form other than money to ensure compliance with the support order;
(h) dismisses the proceedings.
Imprisonment served intermittently
If a term of imprisonment is imposed under clause (2)(a), it may be ordered to be served intermittently at such times as are specified in the order.
For the purpose of clause (2)(a), the burden of proving that the default is not wilful is on the debtor.
Arrears due if debtor defaults
If the debtor fails to make any payment when it is due under an order made under clause (2)(d), the full amount of the arrears specified in the order becomes immediately due and payable.
At the time of making an order under clause (2)(c) or (d), the judge or master may make one or more of the following orders:
(a) imposing a fine of not more than $1,000 for each failure to make a payment by a date specified in the order under clause (2)(c) or (d);
(b) requiring the debtor to enter into a bond in a specified amount, without sureties or with sureties acceptable to the judge or master, to secure the performance of the debtor's obligations under the order.
Continuation of adjourned hearing
A hearing adjourned by a judge or master under clause (2)(e) after evidence has been adduced must be continued before the same judge or master.
If an amount is deposited as security as required by an order under clause (2)(f), any balance remaining undisbursed when the order is discharged, or when the debtor's obligations under the order have been discharged, must be returned to the debtor after deducting such administration costs as the judge or master considers appropriate.
Unless an amount deposited as security is deposited with the director, any interest earned on the deposit is to be included in the balance, if any, to be returned to the debtor.
Debtor may be imprisoned for failing to provide security
If a debtor who is ordered under clause (2)(f) or (g) or (6)(b) to provide security fails to provide it, the judge or master who made the order may order the debtor to be imprisoned for a period of not more than 30 days or until the security is provided.
Hearing into cause of late payment
If a debtor makes a late payment, the director may issue a summons for the debtor to appear before a judge or master for a hearing to determine why it was late.
After the hearing, the judge or master may make any order that could be made after a hearing under section 58, and that section applies as if the order made under this section were made under that section.
The imprisonment of a debtor does not reduce or discharge the debtor's arrears.
Appeal from master to Q.B. judge
An order of a master under section 58 or 59 may be appealed, within 30 days after the day it is pronounced or within such further time as a judge of the Court of Queen's Bench allows, to a judge of that court. The appeal is to be based on the record of the evidence that resulted in the order under appeal.
Deputy registrar may issue warrant
If a debtor fails to appear at a hearing before a deputy registrar as required by
(a) a summons issued under subsection 57(1) (examination before deputy registrar);
(b) a promise to appear given under subsection 64(2);
(c) an undertaking given under subsection 64(2) or (4);
(d) a recognizance entered into under subsection 64(5); or
(e) a condition of an adjournment ordered for such a hearing;
the deputy registrar may issue a warrant for the arrest of the debtor for the purpose of ensuring his or her attendance at the hearing.
Judge or master may proceed with hearing or issue warrant
If a debtor fails to appear at a hearing under section 58 or 59 before a judge or master as required by
(a) an order of the deputy registrar under section 57;
(b) a summons issued under section 58 or 59;
(c) a promise to appear given under subsection 64(2);
(d) an undertaking given under subsection 64(2) or (4);
(e) a recognizance entered into under subsection 64(5); or
(f) a condition of an adjournment ordered for such a hearing;
a judge or master may proceed with the hearing in the debtor's absence or issue a warrant for the arrest of the debtor for the purpose of ensuring his or her attendance at the hearing.
The following definitions apply in this section.
"justice" means a judge of the Provincial Court, a master, the deputy registrar or a 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 »)
Arrested debtor to be released on promise or undertaking
If a debtor is arrested pursuant to a warrant issued under section 62 or 63, the arresting peace officer or the officer in charge must, if the director is not opposed to the debtor's release, release the debtor on the debtor giving a promise to appear or an undertaking to appear at the hearing in question.
Arrested debtor to be brought before justice
In the case of a debtor who is not released under subsection (2), the arresting peace officer or the officer in charge must, as soon as practicable but in any event within 24 hours after the arrest, bring the debtor before a justice.
The justice must order the release of the debtor on the giving of an undertaking to appear at the hearing in question unless the director shows cause why, for the purpose of ensuring the debtor's attendance at the hearing, detaining the debtor or requiring a recognizance is justified.
If the director shows cause why a recognizance is justified to ensure the debtor's attendance at the hearing in question, the justice may order the debtor's release if the debtor enters into a recognizance to appear at the hearing, with such conditions and such sureties or deposits of money or valuable security, if any, as the justice
(a) considers appropriate in the circumstances for ensuring the debtor's attendance at the hearing; and
(b) specifies in the order.
If the director shows cause why detention of the debtor is justified to ensure his or her attendance at the hearing in question, the justice must order the debtor to be detained in custody until the completion of the hearing.
Director may show cause in writing
The director may show cause under this section by providing a written submission to the justice, and the justice must consider the submission without requiring the director to appear.
An order under section 64 may be appealed to a judge of the Court of Queen's Bench.
ENFORCEMENT OF COURT COSTS
The payment of court costs, as defined by regulation, may be enforced by the director in accordance with the regulations.
The Lieutenant Governor in Council may make regulations
(a) defining "court costs" for the purpose of this section;
(b) respecting the enforcement of an order for the payment of court costs, whether they are payable by a debtor to a creditor or by a creditor to a debtor, including regulations that enable the director to apply one or more provisions of this Act, with such modifications as are specified in the regulations, to the enforcement of such an order as if it were a support order.
TRANSITIONAL
Transitional — continuation of enforcement
Subject to the regulations,
(a) an enforcement action taken under the former Act continues under this Act as if it had been taken under this Act; and
(b) on the coming into force of this Act,
(i) any order made and any notice, request or other document issued, given, served or filed under Part VI of the former Act continues in effect and is to be applied or acted upon as if it had been made, issued, given, served or filed under this Act, and
(ii) any unpaid penalty assessed or fee or cost charged under Part VI of the former Act continues to be payable and may be enforced against the debtor as if it had been assessed or charged under this Act.
PART 4
MISCELLANEOUS PROVISIONS
Action required by court order
If the director is required by a court order to take any action, the director is not required to take that action until he or she has received a copy of the order signed by the court.
The rights given under this Act are in addition to and not in substitution for any rights given under any other law.
Creditor may apply for appointment of receiver
In addition to any other remedy a creditor may have for the enforcement of a support order, a creditor may apply to a court for the appointment of a receiver. Section 49 applies with necessary changes to such an application and, for this purpose, subsection 49(3) is to be read without reference to "under this Act".
Despite any other Act or law, no time limitation applies in respect of the enforcement of a support order and the recovery of amounts owing under it, including any penalty assessed against the debtor under subsection 27(1) or fees charged to the debtor under subsection 78(1).
If a debtor is in default under a support order at the time of his or her death, the amount in default is a debt of the estate and recoverable by the creditor in the same manner as any other debt recoverable from the estate.
If a debtor is in default under a support order at the time of the creditor's death, the personal representative of the deceased may
(a) recover for the estate the amount in arrears; or
(b) sign and file with the director a statement, in an approved form, indicating that the enforcement provisions are to continue to apply to the recovery of the arrears.
On the filing of that statement, the enforcement provisions continue to apply to the recovery of the arrears.
Clarification of support order or other order
If a debtor or creditor does not agree with the director's interpretation of a support order or other order, the onus is on the debtor or creditor to apply to a court to have the order clarified.
If the monthly amount of support specified in a support order is made payable in instalments that, on an annualized basis, do not match the annual equivalent of the monthly amount, the director may, only for the purpose of enforcing the order,
(a) assume that the specified monthly amount and the frequency of the instalment payments are correct; and
(b) adjust the instalment payments so that, on an annualized basis, they match the annual equivalent of the specified monthly amount.
Certified computer printout as evidence
In any proceeding, a computer printout
(a) showing, as of the date of the printout, the state of the director's account of money paid or owing by the debtor or received by the creditor under a support order; and
(b) certified by the director as being a true copy of the record in respect of the state of that account as of that date;
is admissible in evidence as proof of the state of the account as of the date of the printout unless the contrary is shown. Proof of the director's appointment or signature is not required.
Notice of certificate not required
Despite subsection 49(3) of The Manitoba Evidence Act, a party intending to produce the certified printout may do so without prior notice to the other party.
No interest is payable by the government on money received by the director for the creditor's benefit.
Money received for creditor's benefit not attachable
Despite any other Act, money received by the director for a creditor's benefit is not attachable by any other person or entity.
Director may charge fees to debtor
The director may charge fees to a debtor, in relation to the following:
(a) any action taken by the director under the enforcement provisions;
(b) any payment to the director that is dishonoured by the debtor's financial institution.
The fees are to be determined in accordance with the regulations.
The payment of fees charged under this section may be enforced in the same manner as a penalty imposed under section 27.
Money to be applied first to amounts payable to creditor
Money received or collected by the director may be applied to the amounts charged to a debtor under this section only if
(a) the debtor is not in arrears under a support order to which the enforcement provisions apply; and
(b) no penalty is owing under section 27.
The director may enforce the payment of fees charged to a debtor under this section even if the director is no longer enforcing a support order against the debtor.
Upon application, a court may cancel a fee, in whole or in part, if the court is satisfied that, having regard to the interests of the debtor or the debtor's estate, it would be grossly unfair not to do so.
Offence — false statutory declaration
A person who makes a false statutory declaration under this Act is guilty of an offence and is liable, on conviction, to a fine of not more than $2,000, or to imprisonment for a term of not more than 90 days, or both.
Offence — non-compliance with Act or order
A person who fails to comply with a provision of this Act or an order made under this Act is guilty of an offence and is liable, on conviction, to a fine of not more than $10,000, or to imprisonment for not more than one year, or both.
The Lieutenant Governor in Council may make regulations
(a) prescribing anything referred to in this Act as being prescribed;
(b) prescribing fees, including
(i) the fee that may be charged to a creditor for the filing of a statement to opt into the enforcement provisions,
(ii) the fees that may be charged to a debtor in relation to actions taken by the director to enforce a support order, and
(iii) the fee that may be charged for a dishonoured payment;
(c) respecting the giving or service of any notice or other document under this Act, including rules for determining when a document given or served in accordance with the regulations is deemed to have been given, served or received;
(d) respecting the content of any notice to be given under this Act;
(e) respecting the manner in which support payments are to be remitted to the director;
(f) respecting the penalties to be imposed under section 27, including
(i) prescribing the amounts to be charged or the manner of determining the amounts to be charged,
(ii) specifying the frequency of assessing a penalty, and
(iii) enabling the director to waive a penalty in whole or in part in specified circumstances;
(g) respecting the security deposits that may be required under section 28;
(h) respecting support deduction notices under sections 33 to 41, including
(i) respecting the SDN payor's required response to a notice,
(ii) allowing an SDN payor to charge the debtor fees or costs for complying with this Act in relation to a support deduction notice and prescribing the amount or amounts that may be charged,
(iii) prescribing circumstances in which the director may adjust, suspend, reactivate or terminate a support deduction notice,
(iv) prescribing an amount greater than $250 as the monthly exemption for wages and pension benefits, and
(v) respecting applications to court to vary the amount of the monthly exemption for wages and pension benefits;
(i) for the purpose of section 54 (lottery prizes), respecting the collection and use of information about lottery prize claimants, and the use of the director's records about debtors, to determine if a claimant is a debtor;
(j) prohibiting a debtor in default from holding an enhanced identification card under The Drivers and Vehicles Act and, for that purpose, including
(i) governing the procedures the director must follow when taking any action in relation to a debtor's eligibility to apply for or hold an enhanced identification card,
(ii) requiring the Registrar of Motor Vehicles to cancel or suspend an enhanced identification card that the debtor holds or refuse to issue or renew such a card in the debtor's name;
(k) respecting anything required to deal with
(i) problems or issues arising as a result of the repeal of the former Act and the enactment of this Act, or
(ii) the transition from the enforcement of maintenance orders under the former Act to the enforcement of those orders under this Act,
including the continuation of any enforcement action commenced under the former Act and the continuing effect of any action taken or order, notice or other document issued, served, given or filed under the former Act;
(l) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.
PART 5
CONSEQUENTIAL AND RELATED AMENDMENTS
The Court of Queen's Bench Act
Section 41 of The Court of Queen's Bench Act is amended in the definition "family proceeding" by adding the following after clause (h):
(h.1) The Family Support Enforcement Act;
The Dangerous Goods Handling
and Transportation Act
Subclause 30.1(7)(a)(i) of The Dangerous Goods Handling and Transportation Act is replaced with the following:
(i) is a garnishing order for support, or
The Enforcement of Canadian Judgments Act
Clause 1(2)(a) of The Enforcement of Canadian Judgments Act is amended by striking out "The Family Maintenance Act" and substituting "The Family Support Enforcement Act".
The Executions Act
The Executions Act is amended by this section.
The definition "judgment" in subsection 1(1) is amended by striking out "a maintenance order as defined in Part VI of The Family Maintenance Act" and substituting "a support order as defined in The Family Support Enforcement Act".
Subsection 19.1(1) is amended
(a) in the section heading, by striking out "maintenance" and substituting "support"; and
(b) in the subsection, by striking out "by a designated officer under Part VI of The Family Maintenance Act" and substituting "by the director under The Family Support Enforcement Act".
Subsection 19.1(2) is amended by striking out "Part VI of The Family Maintenance Act, a designated officer" and substituting "The Family Support Enforcement Act, the director under that Act".
Subsection 19.1(3) is amended by striking out "a designated officer under Part VI of The Family Maintenance Act, the sheriff shall immediately give notice to the designated officer" and substituting "the director under The Family Support Enforcement Act, the sheriff shall immediately give notice to the director".
The part of subsection 23(1) before clause (a) is amended by striking out "by The Family Maintenance Act" and substituting "in this Act".
The following is added after subsection 23(2):
Exemptions do not apply to support order
The exemptions under subsection (1) do not apply to a writ of execution issued for the enforcement of a support order as defined in The Family Support Enforcement Act.
The Freedom of Information and
Protection of Privacy Act
Clauses 37(1)(k) and 44(1)(k) of The Freedom of Information and Protection of Privacy Act are amended by striking out "a maintenance order under The Family Maintenance Act" and substituting "a support order under The Family Support Enforcement Act".
The Garnishment Act
The Garnishment Act is amended by this section.
Subsection 4.2(3) of the English version is amended by striking out "maintenance orders" and substituting "support orders".
Section 7 of the English version is amended
(a) in the section heading, by striking out "maintenance" and substituting "support"; and
(b) in the section, by striking out "maintenance order" and substituting "support order".
Subclause 8(1)(a)(iii) is amended by striking out "designated officer" and substituting "director under The Family Support Enforcement Act".
Subclause 12(1)(c)(i) and clause 12(1)(e) of the English version are amended by striking out "maintenance order" and substituting "support order".
Subsection 12(3) is amended
(a) in the section heading, by striking out "alimony, etc." and substituting "support"; and
(b) in the English version of the subsection, by striking out "maintenance order" and substituting "support order".
Subsection 12.1(1) is amended
(a) by repealing the definition "designated officer";
(b) by adding the following definition:
"director" means the director under The Family Support Enforcement Act; (« directeur »)
(c) in clause (b) of the definition "extra-provincial garnishing order", by striking out "Part VI of The Family Maintenance Act" and substituting "The Family Support Enforcement Act"; and
(d) in the definition "support order", by striking out "a maintenance order enforced by a designated officer under Part VI of The Family Maintenance Act" and substituting "a support order enforced by the director under The Family Support Enforcement Act".
Subsection 12.1(2) is amended by striking out "designated officer" wherever it occurs and substituting "director".
The part of subsection 12.1(3) before clause (a) is amended by striking out "designated officer" and substituting "director".
Subsection 12.1(5) is amended by striking out "designated officer" and substituting "director".
The centred heading after section 12.1 of the English version is amended by striking out "MAINTENANCE" and substituting "SUPPORT".
Sections 13 to 13.2 are replaced with the following:
The following definitions apply in this section and sections 13.1 to 14.3.
"creditor" means a person entitled to receive payments under a support order. (« créancier »)
"director" means the director under The Family Support Enforcement Act. (« directeur »)
"garnishing order for support" means a garnishing order obtained under this Act by a creditor or by the director on behalf of a creditor, including an amended garnishing order obtained in accordance with subsection 8(9), to enforce payments under the creditor's support order. (« ordonnance de saisie-arrêt pour aliments »)
"judgment debtor" means a person required to make payments under a support order. (« débiteur judiciaire »)
"support order" means
(a) an order requiring the payment of support that is made by a court under
(i) The Family Law Act,
(ii) The Child and Family Services Act,
(iii) The Inter-jurisdictional Support Orders Act, or
(iv) the Divorce Act (Canada),
or was made by a court under any of the following Acts before it was repealed:
(v) The Child Welfare Act,
(vi) The Family Maintenance Act,
(vii) The Wives' and Children's Maintenance Act;
(b) an extra-provincial or foreign order registered under Part 2 of The Inter-jurisdictional Support Orders Act;
(c) anything that, immediately before The Reciprocal Enforcement of Maintenance Orders Act was repealed, was a registered order under that Act or a confirmation order made in Manitoba under that Act;
(d) the support provisions of a separation agreement filed with the director under section 8 of The Family Support Enforcement Act or with the designated officer under section 53 of The Family Maintenance Act before that Act was repealed; and
(e) an order to which the enforcement provisions have been made applicable by a court under section 12 of The Family Support Enforcement Act. (« ordonnance alimentaire »)
Binding effect of garnishment for support
When a garnishing order for support is served on the garnishee, it binds the following for as long as the order remains in force:
(a) except in the case of wages,
(i) all money that, at the time of service, is owing or payable by the garnishee only to the judgment debtor, and
(ii) all money that, after the time of service, becomes owing or payable by the garnishee only to the judgment debtor from time to time;
(b) all wages that are or become due and payable by the garnishee to the judgment debtor on or after the first day, other than a holiday, after the day of service; and
(c) if the garnishing order is obtained by the director, all money that is or becomes owing or payable by the garnishee to the judgment debtor and one or more other persons jointly and is presumed by subsection (2) to be owing or payable only to the judgment debtor.
Money owing to judgment debtor and others jointly
For the purpose of clause (1)(c),
(a) all money that, at the time of service, is owing or payable by the garnishee to the judgment debtor and one or more other persons jointly is presumed to be owing or payable only to the judgment debtor; and
(b) any money that, at any time after the time of service, becomes owing or payable by the garnishee to the judgment debtor and one or more other persons jointly is presumed to become owing or payable at that time only to the judgment debtor.
Extra copies for judgment debtor and others
When serving the garnishing order on a garnishee, the garnishor must also serve the garnishee with
(a) a copy of the order for the judgment debtor; and
(b) a copy of the order for each other person to whom the garnishor believes the garnished money may be or become owing or payable jointly with the judgment debtor.
On being served with the order, the garnishee must promptly deliver or mail a copy of the order to the judgment debtor and, if the order binds money owing to the judgment debtor and one or more other persons jointly, to each such other person.
Application to court to determine interests
If money that is or becomes owing or payable by the garnishee to two or more persons jointly is bound by a garnishing order for support obtained by the director, the judgment debtor or any person to whom that money is owing or payable jointly may apply to the court that issued the garnishing order for an order determining the interests in that money of
(a) the judgment debtor; and
(b) any other person to whom that money is owing or payable jointly.
The burden of establishing that the judgment debtor's interest in the money is less than the amount garnished is on the person making the application.
An application for an order under this section must be made within 21 days after the garnishing order is served on the garnishee.
Subsection 13.3(1) is amended by striking out "garnishing order pursuant to section 13.1 or subsection 13.2(1)" and substituting "garnishing order for support".
Subsection 13.3(2) is repealed.
The part of subsection 13.3(3) before clause (a) is replaced with the following:
Garnishee's entitlement to costs
The garnishee under a garnishing order for support is not entitled to costs for complying with the order except for
Subsection 13.5(1) is amended
(a) in the part before clause (a), by striking out "obtained pursuant to section 13.1, subsection 13.2(1) or section 13.4" and substituting "for support";
(b) in clause (a) of the English version, by striking out "maintenance" and substituting "support"; and
(c) by replacing clauses (c) and (c.1) with the following:
(c) the debt for which the order was issued is satisfied, if
(i) the order was obtained by the creditor, or
(ii) the order was obtained by the director (or by the designated officer under The Family Maintenance Act before that Act was repealed) and was not for the enforcement of periodic payments;
(c.1) the judgment debtor's obligation to make periodic payments has ended, if the order was obtained by the director (or by the designated officer under The Family Maintenance Act before that Act was repealed) on behalf of the creditor;
Subsection 13.5(2) is amended by striking out "garnishing order against wages obtained under clause 13.1(b) or section 13.4" and substituting "garnishing order for support that applies to wages".
Section 13.6 is amended by striking out "under section 13.1, subsection 13.2(1) or section 13.4" and substituting "for support".
Section 13.7 of the English version is amended by striking out "obtained to enforce a maintenance order" and substituting "for support".
Subsection 14(1) is amended by striking out everything after "subject to garnishment" and substituting "by a garnishing order for support".
The section heading for subsection 14(2) is replaced with "Pension benefits garnishable like wages".
Subsection 14.1(2) of the English version is amended by striking out "maintenance" and substituting "support".
Subsection 14.1(3) of the English version is amended by striking out "obtained to enforce a maintenance order" and substituting "for support".
Subsection 14.1(6) is amended
(a) in the section heading, by striking out "designated officer" and substituting "director"; and
(b) in the subsection, by striking out everything after "only" and substituting "by the director acting on behalf of a creditor.".
Subsection 14.1(7) is amended
(a) by striking out "designated officer" and substituting "director"; and
(b) by striking out "designated officer's" and substituting "director's".
Clause 14.2(2)(b) is amended by striking out "designated officer" and substituting "director".
Subsection 14.2(4) is amended
(a) in the section heading, by striking out "Designated officer" and substituting "Director"; and
(b) in the section,
(i) by striking out "designated officer" and substituting "director"; and
(ii) by striking out "the officer" and substituting "the director".
Subsection 14.2(5) is amended
(a) in the part before paragraph 1, by striking out "designated officer" and substituting "director"; and
(b) in paragraph 1, by striking out "the person entitled to maintenance under the maintenance order" and substituting "the creditor".
Clauses 14.3(b) and (c) are amended by striking out "the person entitled to payment under the maintenance order" and substituting "the creditor under the support order".
Clause 15(d) is amended by striking out "designated officer," and substituting "director".
The Highway Traffic Act
The Highway Traffic Act is amended by this section.
Subsection 273.1(1) is replaced with the following:
In this section and section 273.2, "director" means the director under The Family Support Enforcement Act.
Subsection 273.1(2) is amended
(a) in the English version of the section heading, by striking out "maintenance" and substituting "support";
(b) in the part before clause (a), by striking out "notice from a designated officer under subsection 59.1(6) of The Family Maintenance Act" and substituting "a written request from the director for the registrar to take action under this section"; and
(c) in the part after clause (b), by striking out everything after "until" and substituting "the director notifies the registrar in writing of the person's compliance.".
Subsection 273.2(1) is amended
(a) in the part before clause (a), by striking out "notice from a designated officer under section 59.2 of The Family Maintenance Act advising that a person in default was not served" and substituting "a written request from the director for the registrar to take action under this section"; and
(b) in the part of clause (a) before subclause (i), by striking out everything after "until" and substituting "the director notifies the registrar in writing of the person's compliance,".
Subsection 273.2(3) is replaced with the following:
When the director notifies the registrar of the person's compliance, the registrar must notify The Manitoba Public Insurance Corporation. After receiving the notice from the registrar, The Manitoba Public Insurance Corporation may accept payment of insurance premiums from the person.
Clause 279(3)(c) of the English version is amended by striking out "maintenance" and substituting "support".
The Inter-jurisdictional Support Orders Act
The Inter-jurisdictional Support Orders Act is amended by this section.
Section 1 is amended
(a) by repealing the definition "designated officer"; and
(b) by adding the following definition:
"director" means the director under The Family Support Enforcement Act. (« directeur »)
Subsection 18(4) is amended by striking out "designated officer" wherever it occurs and substituting "director".
Subsection 37.1(1) is amended by striking out "designated officer" in the section heading and in the part before clause (a) and substituting "director".
Subsection 37.1(2) is amended by striking out "designated officer" and substituting "director".
The Parents' Maintenance Act
Section 7 of The Parents' Maintenance Act is replaced with the following:
An order under this Act may be enforced under The Family Support Enforcement Act.
The Pension Benefits Act
The Pension Benefits Act is amended by this section.
The part of subsection 21.3(2) before clause (a) is amended by striking out "a maintenance order within the meaning of that Act, to an order under section 59.3 of The Family Maintenance Act" and substituting "a support order within the meaning of that Act, to an order under section 44 of The Family Support Enforcement Act".
The part of subsection 21.4(2) before clause (a) is amended by striking out "a maintenance order within the meaning of that Act, to an order under section 59.3 of The Family Maintenance Act" and substituting "a support order within the meaning of that Act, to an order under section 44 of The Family Support Enforcement Act".
Subclause 31(1.1)(b)(ii) is replaced with the following:
(ii) in an enforcement action taken by the director under The Family Support Enforcement Act.
The part of section 31.1 before clause (a) of the English version is amended by striking out "maintenance order" and substituting "support order".
Clauses 38.1(b) and (c) are replaced with the following:
(b) a request for information under section 30 of The Family Support Enforcement Act; and
(c) an order under section 44 of The Family Support Enforcement Act to preserve assets.
The Personal Investigations Act
The Personal Investigations Act is amended by this section.
The definition "factual information" in section 1 is amended by striking out "by a designated officer in accordance with Part VI of The Family Maintenance Act" and substituting "in accordance with The Family Support Enforcement Act by the director under that Act".
Clause 4(e) is amended by striking out "the designated officer under The Family Maintenance Act" and substituting "the director under The Family Support Enforcement Act".
The Reciprocal Enforcement of Judgments Act
The definition "judgment" in the English version of section 1 of The Reciprocal Enforcement of Judgments Act is amended in the part after clause (b) by adding "or support" after "maintenance" wherever it occurs.
The Registered Retirement Savings
Protection Act
Clause 3(2)(b) of The Registered Retirement Savings Protection Act is replaced with the following:
(b) taken by the director under The Family Support Enforcement Act.
PART 6
REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE
Part VI of The Family Maintenance Act is repealed.
This Act may be referred to as chapter F26 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.
THE COURT OF QUEEN'S BENCH AMENDMENT ACT
Court of Queen's Bench Act amended
The Court of Queen's Bench Act is amended by this Schedule.
Section 1 is amended by adding the following definition:
"family division hearing officer" means a family division hearing officer appointed under subsection 13.1(1); (« agent d'audience de la Division de la famille »)
The following is added after section 13:
Appointment of family division hearing officers
The Minister of Justice may appoint one or more family division hearing officers to
(a) hear and determine, in one or more judicial centres, certain matters respecting family proceedings; and
(b) make orders specified in the regulations respecting those matters.
The Lieutenant Governor in Council may make regulations
(a) specifying orders that family division hearing officers may make, including, but not limited to, procedural orders, consent orders and orders in relation to uncontested matters;
(b) specifying additional duties of family division hearing officers;
(c) governing the practice and procedure before family division hearing officers;
(d) respecting any other matter concerning family division hearing officers that the Minister considers necessary or advisable.
An order made by a family division hearing officer may be appealed within 30 days after it is signed, in the same manner as an order of a master or registrar may be appealed under the rules. The appeal is to be a new hearing.
Section 14 is amended by striking out everything before clause (a) and substituting the following:
A master, family division hearing officer, registrar, deputy registrar, assessment officer or official examiner, when exercising the powers and discharging the duties provided by statute, by regulation or by the rules,
Subsection 20(1) is amended by adding ", family division hearing officer" after "master".
Subsection 93(1) is replaced with the following:
No rules to conflict with an Act or regulation
Nothing in section 92 authorizes the making of rules that conflict with an Act or with a regulation made under subsection 13.1(2) (family division hearing officers), but rules may supplement the provisions of an Act or such a regulation.
This Act comes into force on a day to be fixed by proclamation.