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S.M. 2019, c. 8
Bill 9, 4th Session, 41st Legislature
The Family Law Modernization Act
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Explanatory Note This note is a reader's aid and is not part of the law. This Act consists of two new Acts and four amending Acts that modernize family law in Manitoba. Schedule A — The Family Dispute Resolution (Pilot Project) Act Pilot project for resolving family disputes This Schedule creates a new dispute resolution process for resolving family disputes, outside the traditional court system. The goal of the new process, established as a three-year pilot project, is to help families resolve disputes in a fair, economical, expeditious and informal manner. Two phases — facilitated resolution and adjudication Under the pilot project, dispute resolution proceedings have two phases. The first is the facilitated resolution phase, in which a resolution officer works with the parties to a dispute to help them reach a mutually satisfactory agreement. Disputes that cannot be resolved in the first phase proceed to the second phase, in which an adjudicator holds a hearing and makes a recommended order. Disputes covered by the pilot project The pilot project is mandatory for most types of family disputes under provincial legislation, including disputes about
Some exceptions apply. These include (but are not limited to) situations where relief is needed on an expedited basis; where court proceedings are commenced before the pilot project starts; where a party resides outside Manitoba; and where an existing order prevents the parties from communicating with one another because of domestic violence. Role of the Court of Queen's Bench A party to a family dispute who disagrees with an adjudicator's recommended order settling the family dispute has 35 days to file an objection in the court. If an objection is filed, the court will resolve the dispute by confirming the adjudicator's recommended order or making another order. If no objection is filed, the adjudicator's recommended order is deemed to be confirmed and becomes an enforceable court order. Amendments to other Acts Consequential amendments are made to three other Acts. Schedule B — The Child Support Service Act First established under The Family Maintenance Act, the Child Support Service is continued under its own Act and given additional responsibilities. These include the following.
Consequential amendments are made to The Family Maintenance Act. Schedule C — The Arbitration Amendment Act (Family Law) New provisions respecting the arbitration of family law disputes are included in The Arbitration Act. Consequential amendments are made to three other Acts. Schedule D — The Provincial Court Amendment and Court of Queen's Bench Amendment Act New provisions respecting the appointment of a family evaluator, social worker or other person to evaluate a custody, access or related matter are included in The Provincial Court Act and The Court of Queen's Bench Act. The court is to consider certain factors when making an appointment and may apportion the costs of the evaluation between the parties. Schedule E — The Family Maintenance Amendment Act This Schedule expands the administrative authority of the Maintenance Enforcement Program ("MEP"), which is the government program that enforces the payment of maintenance under court orders and agreements. By allowing MEP to make administrative decisions in appropriate circumstances and to gather information more effectively, a number of court applications are made unnecessary. The amendments include the following:
A consequential amendment is made to The Garnishment Act. Schedule F — The Inter-jurisdictional Support Orders Amendment Act This Schedule eliminates the need for copies of support orders from other jurisdictions to be certified before they can be filed in a Manitoba court and enforced. |
(Assented to June 3, 2019)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Family Dispute Resolution (Pilot Project) Act
The Family Dispute Resolution (Pilot Project) Act set out in Schedule A is hereby enacted.
The Child Support Service Act set out in Schedule B is hereby enacted.
Arbitration Amendment Act (Family Law)
The Arbitration Amendment Act (Family Law) set out in Schedule C is hereby enacted.
Provincial Court Amendment and Court of Queen's Bench Amendment Act
The Provincial Court Amendment and Court of Queen's Bench Amendment Act set out in Schedule D is hereby enacted.
Family Maintenance Amendment Act
The Family Maintenance Amendment Act set out in Schedule E is hereby enacted.
Inter-jurisdictional Support Orders Amendment Act
The Inter-jurisdictional Support Orders Amendment Act set out in Schedule F 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 DISPUTE RESOLUTION (PILOT PROJECT) ACT
TABLE OF CONTENTS
Section
PART 1
FAMILY DISPUTE RESOLUTION PILOT PROJECT
1 Purpose
2 Definitions
3 Family dispute resolution pilot project
4 Dispute resolution services
5 Request for services
6 Initiating notice
7 Authority to decline to resolve dispute
8 Restriction in relation to court proceedings
9 Two phases
PART 2
FACILITATED RESOLUTION
10 Facilitated resolution phase
11 If resolution reached
12 Unresolved disputes
13 Request for adjudication
14 Information to be provided to adjudicator
PART 3 ADJUDICATION
HEARING PROCEDURES
15 Adjudicator's authority re procedure
16 How hearings are to be conducted
17 Notice of hearing
18 Subpoena to require persons to provide evidence
19 Evidence in hearing
20 Authority to administer oaths
21 Confidentiality
22 Recording proceedings
23 Authority to decline to adjudicate
RECOMMENDED ORDER
24 Recommended order resolving dispute
25 Adjudicator must apply the law
26 Authority to make finding of parentage
27 Adjudicator's authority to correct order
28 Adjudicator's authority to amend order
29 Adjudicator's authority if party does not participate
30 Recommended order to be filed in court
COURT CONFIRMATION
31 Confirmation of recommended order by court
PART 4
DIRECTOR, EMPLOYEES AND ADJUDICATORS
32 Director of resolution services
33 Employees and others
34 Adjudicators
35 Power of adjudicator after resignation
36 Responsibility of chief adjudicator
37 Not compellable as witness
38 Protection from liability
PART 5
GENERAL PROVISIONS
39 Consideration of domestic violence or stalking risk
40 Best interests of child
41 Death of a party terminates participation
42 Preservation of property rights on death
43 Order for costs re adjudication
44 Regulations
45 Evaluation of pilot project
46-48 Consequential amendments
49 C.C.S.M. reference
50 Coming into force
THE FAMILY DISPUTE RESOLUTION (PILOT PROJECT) ACT
FAMILY DISPUTE RESOLUTION PILOT PROJECT
INTRODUCTORY PROVISIONS
The purpose of the pilot project established by this Act is to create a process outside the traditional court system that provides for the fair, economical, expeditious and informal resolution of family disputes.
The following definitions apply in this Act.
"adjudicator" means a person appointed as an adjudicator under section 34. (« arbitre »)
"court" means the Court of Queen's Bench. (« tribunal »)
"director" means the person designated under section 32 as the director of resolution services. (« directeur »)
"family dispute" means a family dispute described in subsection 3(2) that is not subject to an exception provided for in subsection 3(3). (« litige familial »)
"hearing" means a hearing held by an adjudicator to adjudicate a family dispute. (« audience »)
"initiating court application" means a document by which a proceeding relating to a family dispute is commenced in the court. (« demande introductive d'instance »)
"minister" means the Minister of Justice. (« ministre »)
"recommended order" means a recommended order made by an adjudicator under section 24 for confirmation by the court. (« ordonnance recommandée »)
"resolution officer" means a person assigned responsibility to facilitate settlement of a family dispute under subsection 33(2). (« médiateur »)
PILOT PROJECT
Family dispute resolution pilot project
A pilot project to resolve family disputes is established for a period of three years.
Disputes to which the pilot project applies
The pilot project applies in relation to the following disputes:
(a) a dispute about custody, access or support and maintenance for which an application may be made under The Family Maintenance Act;
(b) a dispute about property between spouses or common-law partners for which an application may be made under The Family Maintenance Act, The Family Property Act, The Law of Property Act or another Act.
The pilot project does not apply in the following circumstances:
(a) a party to the family dispute resides outside Manitoba;
(b) court proceedings related to the family dispute were commenced before the coming into force of this Act;
(c) a party to the family dispute applies for an order on an expedited basis in relation to a situation involving
(i) an immediate or imminent risk of harm to a party or a child of a party,
(ii) the removal of a child from Manitoba, or
(iii) the loss or destruction of property,
and the court agrees to determine the application on an expedited basis;
(d) a party to the family dispute commences a proceeding under the Divorce Act (Canada) and the parties have not agreed to resolve the dispute under this Act;
(e) an existing order has the effect of prohibiting a party to a family dispute from communicating with or contacting the other party and does not specify exceptions that would permit participation in a proceeding under this Act;
(f) in circumstances prescribed by regulation.
The services provided under this Act to resolve family disputes must be provided in a manner that
(a) minimizes conflict and promotes the resolution of disputes by cooperation and agreement;
(b) takes into account the impact of the dispute on a child if a child is involved; and
(c) is fair and is as economical, expeditious and informal as possible.
HOW TO REQUEST RESOLUTION SERVICES
Who may request resolution assistance
Under the pilot project, either of the anticipated parties to a family dispute may request assistance from the director to resolve the dispute.
A request for assistance must be made in a manner required or authorized by the regulations.
On receiving a request for assistance, the director must give the requesting party an initiating notice if, on review, the family dispute appears to be within the scope of the pilot project and meets any other requirements under this Act.
The director may provide assistance in resolving a family dispute only if the requesting party serves a copy of the initiating notice on the other party in accordance with the regulations.
On being served with the initiating notice, the other party must respond to the director in accordance with the regulations.
If the other party does not respond within the required time, the director must give the requesting party notice of that fact and, subject to section 7 (director may decline to resolve dispute), may refer the family dispute directly to adjudication in accordance with the regulations.
If the other party responds within the time required by the regulations, the family dispute is to proceed to the facilitated resolution phase unless the director declines to resolve the dispute under section 7.
GENERAL AUTHORITY FOR DIRECTOR TO DECLINE TO RESOLVE DISPUTE
General authority to decline to resolve dispute
The director may decline to resolve a family dispute if the director is of the opinion that
(a) the request for assistance does not disclose a legitimate family dispute or is an abuse of process;
(b) issues in the dispute are too legally or factually complex to be resolved under this Act, or it is otherwise impractical to provide assistance under this Act; or
(c) it is not in the interests of justice or fairness for assistance to be provided under this Act.
Director may decline if numbers make resolution impractical
Subject to the regulations, the director may also decline to resolve a family dispute if the number of requests for assistance makes it impractical for the director to deal with all of them fairly, economically and expeditiously.
When authority may be exercised
The director may exercise authority under this section at any time before an adjudicator is designated to resolve the dispute.
The director must notify the parties in writing if the director declines to resolve a family dispute under this section, and give reasons for doing so.
RESTRICTION IN RELATION TO COURT PROCEEDINGS
Restriction in relation to court proceedings
Despite any other Act of the Legislature, while the pilot project is in effect, no party to a family dispute may file an initiating court application concerning that dispute in the Winnipeg Judicial Centre, the St. Boniface Judicial Centre or another judicial centre prescribed by regulation.
Subsection (1) does not apply
(a) if the parties have resolved all issues in dispute between them and file an initiating court application, a proposed consent order and any written agreement confirming that all issues have been resolved; or
(b) if the director or an adjudicator has declined to resolve the dispute under section 7 or 23.
Subsection (1) does not prevent a party to a family dispute from
(a) applying to court for an order on an expedited basis in relation to a situation described in clause 3(3)(c); or
(b) commencing a divorce proceeding under the Divorce Act (Canada).
If a party to a family dispute applies for an order on an expedited basis in relation to a situation described in clause 3(3)(c) and the court is not satisfied that the application must be determined by the court on an expedited basis, the pilot project applies to the dispute.
PROCEEDINGS FOR RESOLVING DISPUTES
Two phases of dispute resolution
The pilot project has two distinct phases:
1. The facilitated resolution phase — in which the parties are assisted by a resolution officer to reach an agreement on all aspects of a family dispute.
2. The adjudication phase — in which an adjudicator makes a recommended order to resolve a family dispute that has not been resolved at the facilitated resolution phase.
A party may be assisted by a lawyer or other representative during either phase.
FACILITATED RESOLUTION
In the facilitated resolution phase, a resolution officer is responsible for helping the parties to a family dispute define the issues in dispute, explore solutions and reach a mutually satisfactory agreement on all aspects of their family dispute.
For the purpose of the facilitated resolution phase, the resolution officer may determine the form of the dispute resolution process to be used in attempting to resolve the family dispute, having regard to the nature and complexity of the issues, the nature of the relationship between the parties and other factors the resolution officer considers appropriate.
For the purpose of the facilitated resolution phase, the resolution officer may do any of the following:
(a) refer the parties to the child support service if they need an amount of child support determined;
(b) refer the parties to another service or resource for assistance in resolving the dispute;
(c) recommend to the parties that they retain the services of a professional
(i) to conduct a parenting evaluation or other assessment, or
(ii) to provide other services that require specialized expertise.
A copy of any report prepared by a professional under clause (c) may be provided to the resolution officer at the request of either party.
If, in the facilitated resolution phase, the parties to a family dispute resolve all or some of the issues in the family dispute by reaching an agreement, they may ask the resolution officer to assist them to
(a) document their agreement; and
(b) if all of the issues are resolved, prepare a proposed consent order respecting the agreement for consideration by the court, which either party may file in the court.
Consent order for court's consideration
When a proposed consent order is prepared for consideration by the court, the resolution officer must also assist the parties to prepare an initiating court application concerning the consent order (including one that commences a divorce proceeding if the parties so request), which either party may file in the court.
If a family dispute has not been fully resolved during the facilitated resolution phase, an adjudicator is to be designated to hold a hearing and make a recommended order that addresses all of the issues in the family dispute.
When a family dispute is to proceed to a hearing by an adjudicator, the director must request the chief adjudicator to designate a person on the register of adjudicators to adjudicate the dispute.
As soon as reasonably possible after receiving a request, the chief adjudicator must designate a person on the register as the adjudicator.
Information to be provided to designated adjudicator
To prepare for the adjudication of a family dispute, the director must provide the designated adjudicator with the following:
(a) any agreed statement of facts;
(b) a statement of any issues the parties have resolved;
(c) a statement of issues still in dispute, the position of the parties in relation to those issues, and the resolution being requested by each party;
(d) relevant financial information the parties have provided;
(e) any other information the director considers relevant to an issue in dispute.
ADJUDICATION
HEARING PROCEDURES
Adjudicator's authority re procedure
The procedure for a hearing by an adjudicator is at the adjudicator's discretion, subject to this Act and the regulations.
How hearings are to be conducted
A hearing must ensure a proper consideration of the issues in the family dispute and must be conducted as expeditiously and as informally as possible.
The adjudicator may conduct an in-person hearing or may conduct a hearing in writing, by telephone, video or through use of other electronic media, or by any combination of those means.
The adjudicator must give the parties notice of the date, time and place of the hearing, which must begin as soon as reasonably possible.
Subpoena to require persons to provide evidence
The adjudicator may issue a subpoena, in a form authorized by the regulations, requiring a person
(a) to provide evidence that is relevant to an issue in a family dispute, by attending or participating in the hearing; and
(b) to produce for the adjudicator or for a party a record or anything else that is relevant to an issue in the dispute and that is in the person's possession or under their control.
A party may request the adjudicator to issue a subpoena.
A party who requests the adjudicator to issue a subpoena is responsible for paying the witness the same fees in the same way as a witness in an action in court.
Failure to attend or produce evidence
Proceedings for civil contempt of court may be brought in the court against a witness who
(a) fails to attend or participate in a hearing as required by a subpoena or fails to answer a question the adjudicator directs the witness to answer; or
(b) fails to produce a record or anything else as required by a subpoena.
In conducting a hearing, the adjudicator may do any or all of the following:
(a) receive and accept as evidence any information that the adjudicator considers relevant, necessary and appropriate, whether or not the information would be admissible under the laws of evidence and whether given under oath or affirmation or not;
(b) ask questions of the parties and witnesses;
(c) place reasonable limits on the examination or cross-examination of a witness;
(d) become informed in any way the adjudicator considers appropriate.
The adjudicator may not admit evidence that is inadmissible in a court because of a legal privilege.
Evidence on oath or affirmation
The adjudicator may require a person to provide evidence on oath or affirmation and may administer the oath or receive the affirmation.
A hearing must be open to the public.
At the request of a party, the adjudicator may order that no person may publish or make information public that has the effect of identifying a party to the family dispute or a child of a party, and the person must comply with the order.
In determining whether to make an order under subsection (2), the adjudicator must consider
(a) the nature and sensitivity of the information;
(b) whether making the information public could cause physical, mental or emotional harm to a person; and
(c) whether making the information public could cause a serious risk to the proper administration of justice.
The adjudicator must make an electronic or other recording of the proceedings or transcribe the proceedings.
Authority to decline to adjudicate
At any time, the adjudicator has the same authority as the director has under subsection 7(1) to decline to adjudicate a dispute. In that event, the adjudicator must notify the parties in writing and give reasons for declining to adjudicate.
RECOMMENDED ORDER
If parties resolve dispute by agreement
If, in the adjudication phase, the parties to a family dispute resolve it by reaching an agreement, either party may ask the adjudicator to make a recommended order based on that agreement.
Recommended order resolving dispute after hearing
If the parties do not resolve their family dispute by agreement, the adjudicator must, after the hearing, make a recommended order to resolve it.
Requirements for recommended order
A recommended order must
(a) be made within the time period required by the regulations;
(b) set out the deemed confirmation date for the purpose of section 31 (court confirmation);
(c) use the standard clauses referred to in Rule 70.31 of the Court of Queen's Bench Rules, with any necessary changes;
(d) be signed and dated by the adjudicator; and
(e) if made under subsection (2), be accompanied by written reasons.
Adjudicator must apply the law
The adjudicator must make a recommended order to resolve a family dispute in accordance with the law, and must apply The Family Maintenance Act, The Family Property Act, The Law of Property Act or other relevant Act or law as the court would in determining the dispute.
A recommended order must not include terms that can only be ordered by a court under the Divorce Act (Canada).
Authority to make finding of parentage
The adjudicator may make a finding that a person is a parent of the child for the sole purpose of a making a recommended order respecting child support.
Adjudicator's authority to correct errors in recommended order
At the request of a party or on the adjudicator's own initiative, the adjudicator may, before the deemed confirmation date under section 31, amend a recommended order to correct
(a) a typographical, grammatical or arithmetic error; or
(b) an accidental or inadvertent error, omission or other similar mistake.
Adjudicator's authority to amend recommended order
At the request of a party, the adjudicator may, before the deemed confirmation date under section 31, amend a recommended order for the purpose of clarifying it, subject to the regulations.
Adjudicator's authority if party does not participate
If a party given notice of the hearing does not attend or otherwise participate in the hearing at the required time, the adjudicator may proceed to hear and make a recommended order to resolve the family dispute in accordance with the regulations.
Adjudicator to provide recommended order to director
Immediately after making a recommended order, the adjudicator must provide a copy of it to the director.
Recommended order given to parties and filed in court
Upon receiving the recommended order, the director must give a copy of the order to the parties and file it in the court.
COURT CONFIRMATION
Meaning of "deemed confirmation date"
In this section, "deemed confirmation date" of a recommended order means the day that is 35 days after the recommended order is made by the adjudicator.
Recommended order ineffective until confirmed
A recommended order has no effect until it is confirmed or deemed to be confirmed by the court under this section.
When a recommended order is confirmed or deemed to be confirmed, it becomes an order of the court and is enforceable as such.
Recommended order confirmed unless a party objects
A recommended order is deemed to be confirmed on the deemed confirmation date unless, before that date, a party
(a) files an application in the court objecting to confirmation of the recommended order, which includes grounds for the objection; and
(b) serves the application on the other party.
An application objecting to confirmation of a recommended order is to be determined on the basis of the following:
(a) the information and material before the adjudicator at the adjudication phase;
(b) the recommended order;
(c) the adjudicator's reasons for the recommended order;
(d) the transcript of evidence, unless the court determines that the entire transcript, or portions of it, are not required.
On hearing an application objecting to confirmation of a recommended order, the court must
(a) confirm the recommended order; or
(b) make any other order that it considers just based on the evidence set out in subsection (5), but only if the court determines that the adjudicator
(i) erred in principle,
(ii) exceeded their jurisdiction, or
(iii) significantly misapprehended the evidence.
Confirmed order given to parties
When the deemed confirmation date for a recommended order passes without objection, the court must provide a copy of the confirmed order to the parties.
DIRECTOR, EMPLOYEES AND ADJUDICATORS
Director of resolution services
The minister must designate a person as the director of resolution services for the purposes of this Act.
Subject to ministerial direction, the director is responsible for the effective management and operation of resolution services provided under this Act.
With the approval of the minister, the director may delegate to any person, organization or agency any power, duty or function of the director under this Act, subject to the conditions and restrictions set out in the delegation.
The director may engage, as employees or otherwise, resolution officers and other persons necessary to provide resolution services under this Act.
The director is responsible for assigning a resolution officer to assist the parties to a family dispute to resolve their dispute.
A register of adjudicators is hereby established consisting of at least five persons appointed by the Lieutenant Governor in Council, one of whom must be designated as the chief adjudicator.
Each adjudicator must be a practising lawyer under The Legal Profession Act, be appointed following a merit-based process, and meet any other requirements specified in the regulations.
Each adjudicator must be appointed for the term of the pilot project, or for the remaining term of the project in the case of an adjudicator appointed after the pilot project begins.
An adjudicator is to be paid the remuneration and reimbursement for expenses determined by the Lieutenant Governor in Council.
The appointment of an adjudicator must not be terminated except for cause.
Power of adjudicator after resignation
An adjudicator who resigns may, within six months after the resignation, make a recommended order in an adjudication that the adjudicator conducted while in office, and the recommended order is effective as though the adjudicator still held office.
Responsibility of chief adjudicator
The chief adjudicator is responsible for designating an adjudicator from the register — including the chief adjudicator — to conduct a hearing required under this Act.
The director, a resolution officer, an adjudicator or any other person acting under the authority of this Act must not be required to give evidence in any proceeding about information that comes to their knowledge in carrying out responsibilities or exercising powers under this Act.
Subsection (1) does not apply to a criminal proceeding or a proceeding under Part III (Child Protection) of The Child and Family Services Act.
No action or proceeding may be brought against the director, a resolution officer, an adjudicator or other person acting under the authority of this Act 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.
GENERAL PROVISIONS
Consideration of domestic violence or stalking risk
Before taking any action to resolve a family dispute, the director, a resolution officer and an adjudicator must
(a) consider whether doing so could expose a party or a child to a risk of domestic violence or stalking, as those terms are used in The Domestic Violence and Stalking Act; and
(b) ask one or both of the parties
(i) whether there is a history of domestic violence or stalking involving the other party or a child of a party, or contact with a law enforcement agency about domestic violence or stalking involving the other party or a child of a party, and
(ii) whether a civil or criminal court has made an order prohibiting or restricting one of the parties from being in contact with or communicating with the other.
When taking any action in respect of a family dispute involving a child, the best interests of the child must be the paramount consideration of the director, a resolution officer, an adjudicator and any other person acting under the authority of this Act.
Death of a party terminates participation in project
If a party to a family dispute dies, the pilot project ceases to apply to the dispute.
Preservation of property rights on death
For the purpose of preserving rights on death under Part IV of The Family Property Act, a party to a family dispute may at any time file a notice with the director indicating a wish to apply for an accounting and equalization of assets under that Act. If such a notice is filed by a party who dies before the family dispute is resolved under this Act,
(a) the party is deemed to have applied for an accounting and equalization of assets under The Family Property Act on the day the notice was filed with the director; and
(b) the party's personal representative may continue the application under Part IV of that Act.
The parties to an adjudication must pay their own costs.
As an exception to subsection (1), if the adjudicator considers that a party has frivolously or vexatiously prolonged an adjudication or that a party has acted in bad faith, the adjudicator may, subject to the regulations, order the party to pay some or all of the other party's costs.
The minister may make regulations
(a) respecting the pilot project generally;
(b) for the purpose of clause 3(3)(f), specifying the circumstances or the classes of family disputes or parties which exclude a family dispute from the application of the pilot project;
(c) respecting requests for assistance and responses under sections 5 and 6, which may include a requirement to take specified measures before making a request for assistance;
(d) governing the exercise of the director's authority to decline to resolve family disputes under subsection 7(2);
(e) prescribing additional judicial centres for the purpose of subsection 8(1);
(f) respecting the conduct of the facilitated resolution phase generally, including governing the responsibilities of resolution officers;
(g) respecting adjudication generally, including
(i) establishing rules of practice and procedure for adjudicators,
(ii) authorizing a form of subpoena under section 18,
(iii) for the purpose of clause 24(3)(a), respecting the time period within which an adjudicator must make a recommended order, and
(iv) for the purpose of subsection 43(2), respecting costs that an adjudicator may order one party to pay to the other;
(h) governing procedures for applications made under section 31 objecting to the confirmation of a recommended order;
(i) for the purpose of subsection 34(2), specifying the requirements that adjudicators must meet in order to be appointed;
(j) prescribing fees, or the manner of calculating fees, required to be paid by a party to a family dispute for resolution services provided under this Act, including for adjudication;
(k) establishing a sliding scale for fees under clause (j), based on a party's ability to pay;
(l) respecting the giving or serving of any notice or other document under this Act, including
(i) rules for determining when a notice or other document is deemed to have been given, served or received, and
(ii) authorizing substitutional service;
(m) governing recordkeeping and the retention and disposal of records maintained under this Act;
(n) respecting the collection, use, disclosure and security of personal information and personal health information (as those terms are defined in The Freedom of Information and Protection of Privacy Act);
(o) suspending (wholly or partly) the application of the pilot project for a specified period or limiting the number or types of family disputes to which the project applies, or terminating the project;
(p) extending the pilot project beyond the three-year period;
(q) defining any word or phrase used but not defined in this Act;
(r) respecting anything required to deal with the transition to this Act, including regulations to remedy any difficulty, inconsistency or impossibility resulting from that transition;
(s) respecting transitional matters relating to the completion, suspension or termination of the pilot project;
(t) respecting any other matter the minister considers necessary or advisable to carry out the purposes of this Act.
The director may waive or reduce a fee prescribed under clause (1)(j) if paying the fee would cause a party undue hardship.
The minister must ensure that an evaluation of the pilot project is conducted to determine whether it has achieved its purpose.
Consequential amendment, C.C.S.M. c. C280
The definition "family proceeding" in section 41 of The Court of Queen's Bench Act is amended by adding the following after clause (v):
(w) The Family Dispute Resolution (Pilot Project) Act.
Consequential amendments, C.C.S.M. c. D93
Section 7 of The Domestic Violence and Stalking Act is amended by this section.
Clause 7(1)(c.1) is amended by striking out "or" at the end of subclause (i), adding "or" at the end of subclause (ii) and adding the following as subclause (iii):
(iii) a facilitated resolution proceeding or adjudication under The Family Dispute Resolution (Pilot Project) Act;
Clause 7(1.1)(b) is amended by striking out "or" at the end of subclause (i), adding "or" at the end of subclause (ii) and adding the following as subclause (iii):
(iii) a resolution officer or adjudicator in relation to proceedings under The Family Dispute Resolution (Pilot Project) Act;
Consequential amendment, C.C.S.M. c. F20
Section 52 of The Family Maintenance Act is amended in the definition "maintenance order" by adding the following after clause (b.1):
(b.2) an order of the court under subsection 31(3) or (6) of The Family Dispute Resolution (Pilot Project) Act that includes child support, spousal support or common-law partner support,
This Act may be referred to as chapter F14 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.
THE CHILD SUPPORT SERVICE ACT
TABLE OF CONTENTS
Section
1 Definitions
2 Child support service continued
ADMINISTRATIVE CALCULATION OF CHILD SUPPORT
3 Administrative calculation of child support
4 Application to court for order
RECALCULATION OF CHILD SUPPORT
5 Recalculation of child support
6 Court may prohibit recalculation
7 Right to object to recalculation
8 Appointing child support service
9 Obtaining financial information to recalculate
GENERAL PROVISIONS
10 Disclosure of information
11 Regulations
12 Consequential amendments
13 C.C.S.M. reference
14 Coming into force
THE CHILD SUPPORT SERVICE ACT
DEFINITIONS
The following definitions apply in this Act.
"child support guidelines" means the Child Support Guidelines Regulation made under section 39.2 of The Family Maintenance Act. (« lignes directrices sur les pensions alimentaires pour enfants »)
"child support order" has the same meaning as in The Family Maintenance Act, and includes any other class of order respecting the payment of child support that is specified in the regulations. (« ordonnance alimentaire au profit d'un enfant »)
"child support service" means the child support service continued by section 2. (« service des aliments pour enfants »)
"court" means the Court of Queen's Bench or the Provincial Court. (« tribunal »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"parent" has the same meaning as in The Family Maintenance Act. (« parent »)
"payor" means a person who is obligated to pay support for a child under
(a) a child support order;
(b) a decision of the child support service; or
(c) a child support agreement that contains a provision requiring or permitting child support to be recalculated;
and includes a person against whom such an order or decision is sought. (« payeur »)
"recipient" means a person who has a right to receive, or is seeking a right to receive, support for a child under
(a) a child support order;
(b) a decision of the child support service; or
(c) a child support agreement that contains a provision requiring or permitting child support to be recalculated. (« bénéficiaire »)
CHILD SUPPORT SERVICE
Child support service continued
The child support service established under The Family Maintenance Act is continued.
The child support service may
(a) calculate child support in accordance with this Act and the child support guidelines;
(b) recalculate child support in accordance with this Act and the child support guidelines, on the basis of updated income information; and
(c) perform additional duties as required by the minister or under the child support guidelines.
ADMINISTRATIVE CALCULATION OF CHILD SUPPORT
Application for administrative calculation
In accordance with the regulations, a parent or any person on behalf of a child may apply to the child support service for a calculation of an amount to be paid for the support of the child if the requirements in subsection (2) are met.
The requirements are as follows:
1. If the applicant is a parent, the parents of the child must live separate and apart and the child's living arrangements must have been agreed to by the parents, whether by consent or acquiescence or provided for in a custody order.
2. No order can have been made providing for the support of the child.
3. No child support agreement that is eligible for recalculation is in effect.
4. Any other eligibility requirement specified by the regulations.
Child support guidelines apply
Amounts calculated by the child support service must be determined in accordance with the child support guidelines as if the amounts were being calculated for the purposes of a child support order made by a court under The Family Maintenance Act.
No calculation in some circumstances
The child support service may not calculate an amount to be paid for child support
(a) if it is unable to determine that the applicant has the right to receive support for the child;
(b) if it is unable to determine that the payor has an obligation to provide for the child's support;
(c) if it has not been provided with the information required by the regulations; or
(d) in any other circumstance provided for in the regulations.
Amounts calculated under this section are payable on a monthly basis or on another periodic basis that the regulations may specify.
The child support service must give a copy of its decision to the payor, the recipient and the designated officer under The Family Maintenance Act, in accordance with the regulations.
The child support service must register its decision in the court.
A decision of the child support service setting out a calculated amount of child support has the same effect as a child support order, including for the purposes of enforcement under The Family Maintenance Act.
Subject to the regulations, the child support service may correct an error made in a decision and issue a corrected decision. The corrected decision must be registered in the court and notice of it must be given in accordance with subsection (6).
Application to court for child support order
A payor or a recipient who does not agree with a decision under section 3 as to the child support payable may apply to the court for
(a) a child support order under The Family Maintenance Act;
(b) a child support order under the Divorce Act (Canada), if applicable; or
(c) an order to set aside the decision of the child support service.
Application given to child support service
Within 30 days after the application is made, the applicant must give a copy of it to the child support service.
Court application does not suspend decision
An application for an order under this section does not suspend the decision of the child support service, unless the court orders otherwise.
RECALCULATION OF CHILD SUPPORT
Recalculation of child support
Subject to the regulations, the child support service may recalculate child support payable under
(a) a child support order;
(b) a decision of the child support service; or
(c) a child support agreement that contains a provision requiring or permitting child support to be recalculated;
and make a decision setting out the recalculated amount payable.
The child support service may recalculate child support only if the following conditions are met:
(a) the child support was originally determined in accordance with the child support guidelines;
(b) eligibility criteria for recalculation set out in the regulations are met;
(c) recalculation of the child support is not prohibited by court order.
Basis of recalculation — updated income information
The child support 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.
If the child support service does not receive financial information requested in relation to a recalculation, as required by subsection 9(4),
(a) the party who has failed to provide the information is deemed to have disclosed updated income information, determined in accordance with the regulations; and
(b) the child support service may recalculate the child support on the basis of that deemed income.
Ceasing recalculation for adult children
The child support service may cease to recalculate support for an adult child, and then recalculate support for any remaining children, in any of the following circumstances:
(a) if the child support service has been notified that the designated officer under The Family Maintenance Act has ceased to enforce support for one or more children under section 53.9 of that Act;
(b) if the recipient consents in writing to the cessation of recalculation and the child support service is satisfied that the consent was given voluntarily;
(c) if the recipient has not satisfied the child support service that support for the adult child is eligible for recalculation.
Recalculation suspended if agreement under Family Maintenance Act
If the child support service receives a copy of an agreement under subsection 53.2(3) of The Family Maintenance Act, recalculation is suspended unless the prior child support order is varied or the child support service is notified that the agreement has been terminated.
After recalculating child support, the child support service must give a copy of its decision stating the recalculated amount to the payor, the recipient, any person to whom the child support order has been assigned, and to the designated officer under The Family Maintenance Act.
The child support service must register its decision in the court.
A decision of the child support service setting out a recalculated amount of child support has the same effect as a child support order, including for the purposes of enforcement under The Family Maintenance Act.
Subject to the regulations, the child support service may correct an error made in a decision and issue a corrected decision. The corrected decision must be registered in the court and notice of it must be given in accordance with subsection (7).
Court may prohibit recalculation
If a court determines that recalculation of child support by the child support 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 child support service.
Right to object to recalculation
A payor or a recipient who does not agree with the recalculated amount stated in a decision of the child support service under section 5 may apply for an order under The Family Maintenance Act to vary, suspend or terminate the child support order or, if there is no child support order, for an order referred to in clauses 4(1)(a) to (c).
An application under subsection (1) must be made within 30 days after the parties are given a copy of the decision of the child support service under subsection 5(7) or (10).
Application provided to child support service, etc.
The applicant must, within the 30 days mentioned in subsection (2), give a copy of the application to the child support service and the designated officer under The Family Maintenance Act.
When an application has been made under this section, the obligation to pay the recalculated amount stated in the decision of the child support service is suspended pending the determination of the application, and the child support order, decision or agreement (in respect of which the recalculation was made) continues in effect during the suspension 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 decision of the child support service as if the application had not been made.
OBTAINING FINANCIAL INFORMATION FOR CALCULATION OR RECALCULATION
Appointing child support service
A person, including an assignee of a child support order, is deemed to have appointed the child support service to act on their behalf in requesting and receiving financial information necessary to calculate or recalculate child support under this Act.
Child support service may request information
The child support 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 payor or a recipient respecting
(a) the address or whereabouts of the payor or recipient;
(b) the name and address of the employer of the payor or recipient; 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 child support service may enter into an arrangement with that department or agency giving the child support 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 and without charging a fee.
If the child support service does not receive the requested information within the required 21 days, it may calculate or recalculate child support in accordance with the regulations.
GENERAL PROVISIONS
The child support service may disclose the following information to the designated officer under The Family Maintenance Act for the purposes of that Act:
(a) the last known address or whereabouts of the payor or recipient;
(b) the name and address of the last known employer of the payor or recipient;
(c) financial information that has been provided under section 9.
The Lieutenant Governor in Council may make regulations
(a) respecting the child support service generally;
(b) governing calculations and recalculations of child support by the child support service;
(c) for the purpose of the definition "child support order" in section 1, specifying additional classes of orders respecting the payment of child support;
(d) establishing requirements or criteria for determining whether child support is eligible for calculation or recalculation by the child support service;
(e) respecting the information that payors and recipients are required to provide to the child support service;
(f) respecting the determination of a payor's income for the purpose of calculating or recalculating child support by the child support service;
(g) respecting the correction of errors in decisions made by the child support service;
(h) respecting the enforceability of a calculation or recalculation decision of the child support service;
(i) respecting notices that must be provided to or by the child support service;
(j) respecting the collection, use and disclosure of personal information by the child support service, including purposes for which information may be used or disclosed by the service;
(k) establishing requirements for the determination of child support amounts in accordance with a defined formula;
(l) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.
Consequential amendments, C.C.S.M. c. F20
The Family Maintenance Act is amended by this section.
Sections 39.1 and 39.1.1 are repealed.
Clause 39.2(2)(h.1) and subsection 39.2(3) are repealed.
Section 52 is amended by adding the following definition:
"child support service" means the child support service continued under The Child Support Service Act; (« service des aliments pour enfants »)
This Act may be referred to as chapter C96 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.
THE ARBITRATION AMENDMENT ACT (FAMILY LAW)
The Arbitration Act is amended by this Act.
Section 1 is amended by adding the following definitions:
"family arbitration" means an arbitration that
(a) deals with matters arising in a family law dispute that could be dealt with in a written agreement, including a spousal agreement or a common-law relationship agreement as defined in The Family Property Act, or a separation agreement as referred to in The Family Maintenance Act, and
(b) is conducted exclusively in accordance with the law of Manitoba or of another Canadian jurisdiction; (« arbitrage familial »)
"family arbitration agreement" and "family arbitration award" have meanings that correspond to the meaning of "family arbitration"; (« convention d'arbitrage familial » et « sentence arbitrale familiale »)
"family law dispute" means a dispute between the parties respecting
(a) parenting arrangements, custody of or access to a child,
(b) child support, spousal support or common-law partner support, or
(c) property as between spouses or common-law partners, including under The Family Property Act, The Law of Property Act or another Act of the Legislature,
and includes related matters specified in the arbitration agreement between the parties. (« litige en droit de la famille »)
The following is added after section 2:
Arbitrators for family arbitrations
Every arbitrator who conducts a family arbitration must have the qualifications and meet any other requirements specified in the regulations.
Family arbitration — child's best interests
An arbitrator who conducts a family arbitration involving a child must apply the best interests of the child test in accordance with the applicable law.
Section 3 is amended as follows:
(a) by renumbering clause (a) as clause (a.1) and adding the following as clause (a):
(a) subsection 2.1(2) (best interests of the child);
(b) by adding the following as clause (a.2):
(a.2) section 5.1 (family arbitration);
(c) by adding the following after clause (b):
(b.1) section 31.1 (family arbitration award unenforceable if inconsistent with family law statutes);
Section 4 is renumbered as subsection 4(1) and the following is added as subsection 4(2):
No application to family arbitration
Subsection (1) does not apply to a family arbitration.
The following is added after subsection 5(1):
Written family arbitration agreement
Despite subsection (1), a family arbitration agreement must be in writing.
Limit re family arbitration agreement
A provision of a family arbitration agreement that removes the jurisdiction of a court under the Divorce Act (Canada), The Family Maintenance Act or The Family Property Act has no effect.
The following is added after section 5:
A family arbitration agreement may be made only after the matter in dispute has arisen. An arbitration agreement made beforehand, and any resulting award, are unenforceable.
Subsection (1) does not apply to the arbitration of a future dispute respecting a matter that has been provided for in
(a) a written agreement, including a spousal agreement or a common-law relationship agreement as defined in The Family Property Act, a separation agreement as referred to in The Family Maintenance Act, a cohabitation agreement, a pre-nuptial agreement or a post-nuptial agreement;
(b) a court order made in a family proceeding as defined in section 41 of The Court of Queen's Bench Act or section 20.1 of The Provincial Court Act; or
(c) an award made under this Act.
Power of court to set aside family arbitration agreement
Despite any other provision of this Act, the court may set aside or replace a family arbitration agreement, and any resulting award, if it is satisfied that one or more of the following circumstances existed when the parties entered into the agreement:
(a) a party took improper advantage of the other party's vulnerability, including the other party's ignorance, need or distress;
(b) a party did not understand the nature or consequences of the agreement;
(c) circumstances that would, under the common law, cause all or part of a contract to be voidable.
The court may decline to set aside a family arbitration agreement and resulting award if it would not replace the agreement with an order substantially different from the terms of the agreement.
Section 6 is amended in the part before clause (a), by striking out "No court" and substituting "Subject to subsection 5.1(3), no court".
The following is added after section 31:
Family arbitration award unenforceable if inconsistent with statute
Despite any agreement of the parties to the contrary, a provision of a family arbitration award that is inconsistent with The Family Maintenance Act, The Family Property Act, The Law of Property Act or another Act of the Legislature is not enforceable.
Section 36 is replaced with the following:
If the parties settle the matters in dispute during arbitration, the arbitral tribunal shall terminate the arbitration and, if a party so requests, record the settlement
(a) in the form of an award; or
(b) in the case of a family arbitration, in the form of an award, a written agreement, or a proposed consent order to be submitted to the court by the parties.
The following is added after section 38:
Family arbitration award to use standard clauses
A family arbitration award must use the standard clauses referred to in Rule 70.31 of the Court of Queen's Bench Rules, with any necessary changes, and must include the following:
(a) the name of the arbitrator who made the award;
(b) the date the award was made;
(c) a preamble setting out the particulars necessary to understand the award, including
(i) the date of the arbitration hearing,
(ii) the name of each party who was present and whether they were represented by a lawyer,
(iii) the name of any party who was not present and whether they were represented by a lawyer,
(iv) whether the parties consent to the award or part of it,
(v) the documents filed in support, and
(vi) any undertaking made by a party as a condition of the award;
(d) the statutory provisions or rules under which the provisions of the award are granted;
(e) the names of persons to be served with the award and the manner of service.
The following is added after subsection 42(4):
Death of a party — family arbitration
Despite subsection (4), the death of a party to a family arbitration terminates the arbitration.
Subsection 44(2) is amended in the part before clause (a) by adding "(other than a family arbitration agreement)" after "If the arbitration agreement".
The following is added after subsection 44(2):
Appeal of family arbitration award
If a family arbitration agreement does not provide for an appeal of the family arbitration award to the court, a party may appeal the award with leave of the court on a question of law or mixed fact and law.
The following is added after subsection 44(3):
Procedure on appeal of family arbitration award
An appeal of a family arbitration award is to proceed directly to a judge for a determination, without any case management or other intervening process.
The following is added after subsection 45(8):
Nothing in this section restricts or prevents the court from varying, suspending or terminating all or part of a family arbitration award for any reason for which a court order could be varied, suspended or terminated under The Family Maintenance Act.
The following is added after subsection 49(2):
Procedure re family arbitration award
An application to enforce a family arbitration award is to proceed directly to a judge for a determination, without any case management or other intervening process.
The following is added after subsection 49(8):
An application is not required under this section to enforce a family arbitration award respecting child support, spousal support or common-law partner support made in accordance with The Family Maintenance Act. Instead, such an award may be registered with the court and, upon registration, is enforceable as a maintenance order under Part VI of that Act.
The following is added after subsection 51(3):
Exception re enforcement of family arbitration award
Subsection (3) does not apply to a family arbitration award.
The following is added after section 56:
The Lieutenant Governor in Council may make regulations
(a) respecting family arbitrations generally, including
(i) requiring family arbitration agreements to include specified standard provisions,
(ii) requiring arbitrators who conduct family arbitrations to have specified qualifications and meet other requirements, and
(iii) requiring arbitrators who conduct family arbitrations to consider whether the arbitration process could expose a party or a child to a risk of domestic violence or stalking (as those terms are used in The Domestic Violence and Stalking Act) and to take specified steps;
(b) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable for the purpose of this Act.
Consequential amendments, C.C.S.M. c. C360
The Child Custody Enforcement Act is amended by this section.
Clause 9(1)(b) is amended by adding ", family arbitration award" after "court order".
Subsection 10(1) is amended by adding ", family arbitration award" after "court order".
Consequential amendment, C.C.S.M. c. C280
The definition "family proceeding" in section 41 of The Court of Queen's Bench Act is amended by adding the following as clause (x):
(x) a family arbitration under The Arbitration Act.
Consequential amendment, C.C.S.M. c. F20
The definition "maintenance order" in section 52 of The Family Maintenance Act is amended by adding the following after clause (a):
(a.1) a family arbitration award under The Arbitration Act that includes child support, spousal support or common-law partner support,
Amendments to Schedule B of Bill 9
The Child Support Service Act, Schedule B of Bill 9, introduced in the Fourth Session of the 41st Legislature and titled The Family Law Modernization Act, is amended by this section.
The definition "payor" in section 1 is amended
(a) by striking out "or" at the end of clause (b), adding "or" at the end of clause (c) and adding the following after clause (c):
(d) a family arbitration award under The Arbitration Act that includes child support;
(b) in the part after clause (d), by striking out "order or decision" and substituting "order, decision or award".
The definition "recipient" in section 1 is amended by striking out "or" at the end of clause (b), adding "or" at the end of clause (c) and adding the following after clause (c):
(d) a family arbitration award under The Arbitration Act that includes child support.
Subsection 3(2) is amended in item 2 by adding "or family arbitration award" after "order".
Subsection 5(1) is amended by striking out "or" at the end of clause (b), adding "or" at the end of clause (c) and adding the following after clause (c):
(d) a family arbitration award under The Arbitration Act that includes child support;
Coming into force: proclamation
This Act, except section 21, comes into force on a date to be fixed by proclamation.
Section 21 comes into force on the day that section 1 of The Child Support Service Act, Schedule B of Bill 9, comes into force.
THE PROVINCIAL COURT AMENDMENT AND COURT OF QUEEN'S BENCH AMENDMENT ACT
THE PROVINCIAL COURT ACT
The Provincial Court Act is amended by this section.
Sections 20.4 and 20.5 are replaced with the following:
In a proceeding respecting custody, access or another related matter, a judge may appoint a family evaluator, a social worker or other person to evaluate a matter.
In deciding whether to order an evaluation, the court must consider the following:
(a) whether an evaluation would provide information about the child or children that would not otherwise be discoverable;
(b) whether an evaluation is necessary for the court to determine the best interests of the child or children;
(c) the affordability of the evaluation for the parties;
(d) the potential delay resulting from the evaluation and the impact of delay on the child or children;
(e) any other factor the court considers relevant.
When ordering an evaluation, the court may determine how the cost is to be apportioned between the parties.
A person appointed under subsection (1) must not have had any previous connection with the parties, unless the person appointed conducted an earlier evaluation relating to the parties or is someone to whom each party consents.
A person appointed under subsection (1) must interview the parties and other persons as may be appropriate and provide the court with a report containing information and an opinion about the matter in issue.
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.
A person who provides a report to the court under subsection 20.4(5) may be called as a witness and may be cross-examined by all parties.
THE COURT OF QUEEN'S BENCH ACT
The Court of Queen's Bench Act is amended by this section.
Sections 49 and 50 are replaced with the following:
In a proceeding respecting custody, access or another related matter, a judge or master may appoint a family evaluator, a social worker or other person to evaluate the matter.
In deciding whether to order an evaluation, the court must consider the following:
(a) whether an evaluation would provide information about the child or children that would not otherwise be discoverable;
(b) whether an evaluation is necessary for the court to determine the best interests of the child or children;
(c) the affordability of the evaluation for the parties;
(d) the potential delay resulting from the evaluation and the impact of delay on the child or children;
(e) any other factor the court considers relevant.
When ordering an evaluation, the court may determine how the cost is to be apportioned between the parties.
A person appointed under subsection (1) must not have had any previous connection with the parties, unless the person appointed conducted an earlier evaluation relating to the parties or is someone to whom each party consents.
A person appointed under subsection (1) must interview the parties and other persons as may be appropriate and provide the court with a report containing information and an opinion about the matter in issue.
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.
A person who provides a report to the court under subsection 49(5) may be called as a witness and may be cross-examined by all parties.
CONSEQUENTIAL AMENDMENT
Section 3 of The Family Maintenance Act is repealed.
COMING INTO FORCE
This Act comes into force on the day it receives royal assent.
THE FAMILY MAINTENANCE AMENDMENT ACT
The Family Maintenance Act is amended by this Act.
The centred heading "OBLIGATION TO SUPPORT CHILDREN" is added before section 36.
The centred heading "CHILD SUPPORT ORDERS" is added before section 37.
The centred heading "CUSTODY AND ACCESS ORDERS" is added before section 39.
The definition "maintenance order" in section 52 is amended by adding "or" at the end of clause (c) and adding the following after clause (c):
(d) a decision of the child support service, or
(e) an agreement under section 53.2;
The centred heading before section 53.0.4 is repealed and section 53.0.4 is renumbered as section 53.5.
The centred heading "REFUSING OR CEASING ENFORCEMENT" is added before section 53.5.
Section 53.1 is renumbered as section 53.7.
The following is added as sections 53.2 to 53.4:
CHANGING MAINTENANCE OBLIGATIONS BY AGREEMENT
Agreement to change maintenance obligations
For the purpose of enforcement under this Act, the debtor and the creditor may, by an agreement that complies with this section, change the maintenance obligations under a maintenance order (the "prior maintenance order"), even if the maintenance order was made by a court.
The agreement must be in a form approved by the designated officer and set out the following:
(a) the name of the debtor and creditor;
(b) the prior maintenance order being changed and its date;
(c) the income of the debtor;
(d) the income of the creditor if required by the designated officer;
(e) a description of the changes being made, including the commencement date of the changes, any new maintenance amount, any changed frequency in required payments and other details necessary for enforcement;
(f) a statement that the agreement may be filed with the designated officer for enforcement.
Agreement to be filed with designated officer
Either party to the agreement may file it with the designated officer and, as soon as practicable after it is filed, the designated officer must provide a copy of the agreement to the court and the child support service.
Further changes to maintenance obligations
An agreement filed under subsection (3) may be terminated in writing by any party to the agreement or by a court order. If the agreement is terminated by a party, notice of the termination must be given to the designated officer who may resume enforcement of the prior maintenance order.
Notice to court and the child support service
The designated officer must give notice of a termination under subsection (4) to the court and the child support service.
No agreement if order assigned
An agreement may not be made under this section if the creditor is not entitled to receive payments under the prior maintenance order because of an assignment under section 64 or other applicable law.
ADJUSTING INSTALMENT PAYMENTS AND OFFSETTING IF TWO DEBTORS
If the monthly or periodic amount of maintenance specified in a maintenance order is made payable in instalments that, on an annualized basis, do not match the annual equivalent of the monthly or periodic amount, the designated officer may, only for the purpose of enforcing the order,
(a) assume that the specified monthly or periodic 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 or periodic amount.
Offsetting of child support if two debtors
If two debtors are required to pay child support to each other under a maintenance order, the designated officer may subtract the lower obligation from the higher one and enforce payment of the difference.
The following is added as section 53.6:
Designated officer may interpret orders
The designated officer may interpret a maintenance order or other order for the purpose of enforcement under this Act.
The following is added as sections 53.8 to 53.12:
Creditor to notify designated officer of change in child status
A creditor who has reason to believe that the designated officer is enforcing a maintenance obligation for an adult child when that obligation is no longer eligible for enforcement must immediately notify the designated officer of that fact.
Eligibility review re maintenance for adult children
The designated officer may conduct periodic reviews to determine whether an obligation under a maintenance order to pay maintenance for an adult child remains eligible for enforcement.
In making a determination under subsection (1), the designated officer must consider the adult child's particular living situation and circumstances, including whether the child is unable to live independently because of illness, disability or other reason, such as attending secondary or post-secondary studies.
Presumption if child 24 years of age or older
The designated officer must apply a presumption that a maintenance obligation for a child who is 24 years of age or older is not eligible for enforcement unless the maintenance order clearly states that maintenance is to continue to be enforced after the age of 24. For this purpose, a statement in the order to the effect that maintenance is payable until further order of the court is not sufficient to rebut the presumption.
Onus re adult child 24 years and older
The creditor has an onus to prove that a maintenance obligation for a child who is 24 years of age or older remains eligible for enforcement.
When creditor may be asked for information
The designated officer may — at any time but not more often than once every six months — request the creditor to provide information to the designated officer sufficient to allow the designated officer to determine whether a maintenance obligation for an adult child remains eligible for enforcement. The designated officer must request the information when asked to do so by the debtor (subject to the six-month limit).
When the debtor has asked the designated officer to request information from the creditor, the debtor must provide to the designated officer any information, along with supporting documentation, that the debtor has relating to whether the maintenance obligation for the adult child remains eligible for enforcement.
The creditor must provide the information requested by the designated officer under subsection (5), along with any supporting documentation, within the time period required by the designated officer.
Ceasing enforcement if ineligibility
If, based on the creditor's response, the designated officer is not satisfied that the maintenance obligation for the adult child remains eligible for enforcement — or if the creditor fails to respond — the designated officer must cease to enforce the maintenance obligation for that child as of a date determined by the designated officer.
Despite subsection 55(2.2) (confidential information), both the creditor and the debtor are entitled to a copy of any information the other has provided to the designated officer for the purposes of this section, but the designated officer may remove any contact or other identifying information from a copy that is provided.
The designated officer must promptly notify the creditor and the debtor in writing of a decision to continue or cease enforcement and the reason for it.
Designated officer may resume enforcement
If the designated officer has ceased enforcement under this section and the creditor subsequently provides information that satisfies the designated officer that the maintenance obligation for the adult child remains eligible for enforcement, or that it has been reactivated, the designated officer may resume enforcement. But the designated officer must not enforce maintenance payments (other than arrears) due more than 60 days before the date the creditor provided the information.
Creditor or debtor may apply to court
A creditor or debtor who disagrees with a decision of the designated officer under this section may apply to the court for a determination as to whether an adult child is entitled to maintenance.
Designated officer may enforce reduced maintenance
If
(a) a maintenance order requires the payment of maintenance for two or more children and the number of children is specified in the order; and
(b) the designated officer is satisfied that
(i) with respect to one or more but not all of the children,
(A) the maintenance obligation has ended because a terminating event or condition clearly specified in the maintenance order has occurred or been satisfied, or
(B) the enforcement of the maintenance obligation may be discontinued under section 53.9, and
(ii) the order is clear as to the amount payable as maintenance for the other child or children;
the designated officer may limit the enforcement to the amount payable under the order as maintenance for the other child or children.
Reduced maintenance according to table
If
(a) a maintenance order requires the payment of maintenance for two or more children and the number of children is specified in the order; and
(b) the designated officer is satisfied that
(i) the maintenance 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 maintenance obligation has ended because a terminating event or condition clearly specified in the maintenance order has occurred or been satisfied, or
(B) the enforcement of the maintenance obligation may be discontinued under section 53.9;
the designated officer 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 maintenance order is continued.
"Child support guidelines" defined
In this section, "child support guidelines" means
(a) the child support guidelines established by regulation under this Act; or
(b) the Federal Child Support Guidelines under the Divorce Act (Canada);
whichever guidelines apply.
NOTICE TO DIRECTOR OF ASSISTANCE
Notice to Director of Assistance
If the maintenance receivable under a maintenance order has been assigned to the Director of Assistance in relation to a person who is receiving assistance benefits, the designated officer must notify the Director of Assistance of the following:
(a) a request for information made to a creditor under subsection 53.9(5);
(b) a decision of the designated officer to cease to enforce the order or reduce the amount of maintenance being enforced under the order.
Subsection 55(2.2) is amended
(a) by adding the following after clause (a):
(a.1) give it to the child support service for the purpose of carrying out its powers and duties;
(b) by replacing clause (d) with the following:
(d) give the information referred to in clauses (2)(a) and (c) and subclauses (2)(b)(i) and (ii) to the Attorney General for the purpose of performing a function under the Divorce Act (Canada).
Subsections 55(2.4) and (2.4.1) are repealed.
Clause 55(2.5)(a) is replaced with the following
(a) proceedings to bring a debtor before the designated officer under section 56.2;
Clause 55(4)(f) is replaced with the following:
(f) Proceedings to bring the debtor in default before the designated officer under section 56.2.
Section 56 and the centred heading preceding it are repealed.
The following is added before section 57:
EXAMINATION OF DEBTOR BY DESIGNATED OFFICER
Interpretation — debtor in default
For the purposes of sections 56.2 and 57, a debtor is in default if they
(a) are in arrears under a maintenance order; or
(b) fail to provide information or a statutory declaration as required by subsection 55(2.1) or by an order made under subsection 55(2.6).
Examination of debtor by designated officer
The designated officer may issue a notice to appear to a debtor that requires the debtor
(a) to appear before the designated officer in person at the place stated in the notice to appear, or by telephone or other means acceptable to the designated officer, at the time stated in the notice to appear, 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 designated officer a financial statement in a form satisfactory to the designated officer, along with any other requested information.
At the conclusion of the examination, the designated officer may do one or more of the following:
(a) refer the matter for enforcement;
(b) summon the debtor to appear for a hearing under section 57;
(c) if the debtor has proposed a payment plan that the designated officer considers reasonable, require the debtor to make payments in accordance with the plan;
(d) adjourn the examination with or without conditions 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 maintenance order and cancellation of the arrears,
(iv) the debtor to reach a settlement with the creditor,
(v) the debtor to provide such further evidence as the designated officer requires, including evidence of employment status,
(vi) the designated officer to recalculate the amount in arrears, if the amount has been brought into question by the debtor, or
(vii) the designated officer to provide the child support service with information to enable it to recalculate child support.
Arrears due if debtor defaults
If the debtor fails to make any payment when it is due under a payment plan made under clause (2)(c), the full amount of the arrears becomes immediately due and payable.
The centred heading "ENFORCEMENT PROCEEDINGS BEFORE A JUDGE OR MASTER" is added before section 57.
Subsection 57(1.1) is repealed.
Subsection 57.1(1) is repealed.
Subsection 57.1(2) is amended by striking out "by an order of the deputy registrar under clause 56(2)(b),".
Subsection 57.2(2) is amended by striking out "subsection 57.1(1) or (2)" and substituting "subsection 57.1(2)".
Subsections 57.2(3), (4) and (5) are amended by striking out "56 or".
Subsection 59.1(3) is replaced with the following:
The notice must inform the debtor that action will be taken under The Highway Traffic Act if the debtor does not, within 30 days after the day the notice is served, pay the arrears in full or propose a payment plan that the designated officer considers reasonable.
Subsection 59.1(5) is repealed.
Subsection 59.1(6) is amended by replacing everything after clause (a) with the following:
(b) did not within the time referred to in subsection (3) propose a plan that the officer considers reasonable; or
(c) defaulted in payment under a plan accepted by the officer.
Clause 59.1(8)(b) is amended by striking out "an order made by a judge or master pursuant to subsection (5) or".
The following is added after subsection 61(3):
If maintenance is payable for a child at the time of the child's death, any amount in default as of the date of death continues to be owing to the creditor. Upon receiving proof of the child's death, the designated officer shall cease enforcing maintenance for that child as of the date of death, or, if maintenance is payable for more than one child, adjust the maintenance payable as of the date of death in accordance with section 53.10 or 53.11, if possible.
The following is added after section 61.1:
SUSPENDING ENFORCEMENT
Administrative suspension by the designated officer
At the request of the debtor, the designated officer may administratively suspend, in whole or in part, enforcement of a maintenance order (an "administrative suspension") if the debtor provides information that satisfies the designated officer that the debtor's circumstances warrant the suspension.
An administrative suspension may be made for a period of not more than six months and may be made subject to any conditions the designated officer considers appropriate.
The designated officer must notify the debtor and the creditor in writing of an administrative suspension and the reasons for it.
Creditor may provide information
On receiving notice under subsection (3), the creditor may provide the designated officer with additional information and may request the designated officer to cancel or modify the administrative suspension.
The designated officer must review any information the creditor provides and may cancel or modify the administrative suspension, or may confirm it.
The designated officer must notify the debtor and the creditor in writing of the decision made after a review and the reasons for it.
More than one administrative suspension may be made under this section at the request of the debtor.
An administrative suspension ends, and the designated officer may proceed to enforce the maintenance order, immediately after
(a) the last day of the suspension period; or
(b) the debtor fails to comply with a payment or other condition imposed by the suspension;
whichever occurs first.
Obligation to attempt out-of-court resolution
A debtor must request an administrative suspension under this section before making a court application for a suspension order under section 61.2.
The centred heading before section 61.2 is repealed.
Subsection 61.2(11) is amended by adding the following after clause (e):
(f) provision of information to a personal reporting agency, as defined in The Personal Investigations Act, indicating that the debtor is in default under the maintenance order.
Subsections 61.3(4) and (5) are repealed.
The following is added after section 61.3:
Creditor may opt out re penalties
At the time a maintenance order is registered for enforcement, or at any subsequent time, the creditor may opt out of the assessment of penalties. The creditor may subsequently opt back in by notifying the designated officer in writing.
The creditor may waive the right to receive penalties already assessed, in whole or in part, by notifying the designated officer in writing.
Effect of opting out or waiver
A creditor who has opted out of the assessment of penalties, or who has waived the right to receive penalties already assessed, loses the right to have the penalties collected for any period during which the opting out or waiver applies.
Designated officer may cancel penalty
The designated officer may cancel a penalty, in whole or in part, in any of the following circumstances:
(a) when the designated officer is satisfied that the penalty cannot be collected;
(b) when the amount of the penalty owing is less than the amount prescribed by regulation and the debtor
(i) is not in default under a maintenance order, and
(ii) is not required to make periodic payments of maintenance that are to be enforced by the designated officer;
(c) when the debtor does not reside in Manitoba and the maintenance order is registered for the purpose of enforcement in another province, territory or reciprocating jurisdiction;
(d) when the creditor does not reside in Manitoba and the maintenance order is registered for the purpose of enforcement in another province, territory or reciprocating jurisdiction that is not able to process receipt of penalties;
(e) when a maintenance order to which the enforcement provisions apply is varied in a reciprocating jurisdiction and the variation order is silent with respect to penalties;
(f) if the creditor has waived receipt of the penalty under subsection 61.3.1(2).
On 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 debtor's estate, it would be grossly unfair not to do so; and
(b) having regard to the interests of the creditor or the creditor's estate, the cancellation is justified.
The following is added after subsection 61.4(4):
Designated officer may reduce or cancel costs
The designated officer may reduce or cancel costs when
(a) the designated officer is satisfied that the outstanding costs cannot be collected;
(b) the debtor does not reside in Manitoba and the maintenance order is registered for the purpose of enforcement in another province, territory or reciprocating jurisdiction; or
(c) the designated officer is satisfied that the reduction or cancellation is reasonable in the circumstances.
Section 61.5 is amended by adding the following after clause (h):
(h.1) respecting the powers and duties of the designated officer generally under this Part;
Consequential amendment, C.C.S.M. c. G20
Section 13 of The Garnishment Act is amended by replacing the definition "maintenance order" with the following:
"maintenance order" means a maintenance order as defined in Part VI of The Family Maintenance Act; (« ordonnance alimentaire »)
This Act comes into force on a date to be fixed by proclamation.
THE INTER-JURISDICTIONAL SUPPORT ORDERS AMENDMENT ACT
The Inter-jurisdictional Support Orders Act is amended by this Act.
In the following provisions, "certified" is struck out:
(a) subsection 6(4);
(b) subsection 17(2);
This Act comes into force on the day it receives royal assent.