The Family Law Act, The Family Support Enforcement Act and The Inter-jurisdictional Support Orders Amendment Act

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S.M. 2022, c. 15

Bill 17, 4th Session, 42nd Legislature

The Family Law Act, The Family Support Enforcement Act and The Inter-jurisdictional Support Orders Amendment Act

Explanatory Note

This note was written as a reader's aid to the Bill and is not part of the law.

This Bill repeals The Family Maintenance Act and replaces it with two new Acts. The Family Law Act governs the rights and duties of family members and The Family Support Enforcement Act governs the enforcement of support obligations. The new Acts are written and organized to make the law clearer and easier to understand.

The Bill also amends The Inter-jurisdictional Support Orders Act to enhance procedures under that Act.

Schedule AThe Family Law Act

This Act governs various aspects of family law, including how parentage is determined, parenting arrangements for children after their parents separate, guardianship, child support, and spousal and common-law partner support. To the extent possible, provisions of the Act harmonize Manitoba law with the Divorce Act (Canada).

Duties of the parties, legal advisors and the court

The Act creates duties for parties and legal advisors to encourage the use of out-of-court dispute resolution processes.

The court has a duty to conduct proceedings with as little delay and formality as possible, and in a way that minimizes conflict and protects children and parties from family violence.

Determining parentage

Part 2 continues the existing law for determining a child's legal parents. It includes recent amendments made to The Family Maintenance Act respecting assisted reproduction.

Parenting arrangements

Part 3 replaces the concepts of custody and access respecting children with the concepts of parenting arrangements, parenting time and decision-making responsibility.

New provisions allow step-parents or other family members who stand in the place of a parent to seek parenting time or decision-making responsibility for a child rather than having to apply for guardianship.

The right of individuals to apply for guardianship of a child has been moved from The Child and Family Services Act to this Act. Also moved from The Child and Family Services Act is the ability of grandparents and other family and non-family members to apply to the court for an order allowing them contact with a child.

New provisions deal with the relocation of children after separation. A parent or guardian who wishes to relocate a child must give notice of that fact to others who play a significant role in the child's life. Certain burdens of proof are placed on the relocating parent or on a person objecting to relocation, depending on the child's existing care arrangements.

Child and spousal support

Part 4 continues the existing law respecting support for children, spouses and common-law partners. It also provides that children may apply for child support for themselves. Former spouses, whether divorced under the Divorce Act (Canada) or another law, may apply for spousal support under this Act.

Transition

Transitional provisions ensure that court orders made under The Family Maintenance Act continue in force.

Proceedings begun but not completed under The Family Maintenance Act are to be dealt with under this new Act.

Amendments to other Acts

Consequential and related amendments are made to several Acts to reflect new terminology and law.

Schedule BThe Family Support Enforcement Act

The Family Support Enforcement Act replaces Part VI of The Family Maintenance Act.

A new director is appointed and given all the powers and duties that a designated officer has under the existing Act. A "maintenance order" under the existing Act becomes a "support order".

The new Act carries over the existing law to enforce support orders. It also adds the following items:

The director may enforce a family arbitration support award that conflicts with a support order made by a court, subject to specified conditions.

The director may continue to enforce ongoing child support obligations at the request of the personal representative of the estate of a deceased support recipient.

The director may resume enforcement of support for an adult child even if the Child Support Service has not included the adult child in a recalculation.

The director may enter into a payment plan with a support payor respecting arrears.

The director may enforce court costs awarded to a support recipient or support payor.

The new Act also simplifies processes in several areas, including payment processing, the execution of warrants for failing to appear in court and the enforcement of orders from outside Canada that conflict with prior support orders.

Consequential and related amendments are made to several Acts to reflect new terminology and law, including amendments to The Garnishment Act regarding the enforcement of support orders.

Schedule CThe Inter-jurisdictional Support Orders Amendment Act

Amendments to The Inter-jurisdictional Support Orders Act clarify the manner in which an inter-jurisdictional application is processed by the designated authority and the court. It is now permitted to electronically transmit an application, evidence related to an application or an order.

(Assented to June 1, 2022)

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

Family Law Act

1

The Family Law Act set out in Schedule A is hereby enacted.

Family Support Enforcement Act

2

The Family Support Enforcement Act set out in Schedule B is hereby enacted.

Inter-jurisdictional Support Orders Amendment Act

3

The Inter-jurisdictional Support Orders Amendment Act set out in Schedule C is hereby enacted.

Coming into force

4(1)

Subject to subsection (2), this Act comes into force on the day it receives royal assent.

Coming into force of Schedules

4(2)

The Schedules to this Act come into force as provided in the coming into force section at the end of each Schedule.


SCHEDULE A

THE FAMILY LAW ACT

TABLE OF CONTENTS

Section

PART 1
INTRODUCTORY PROVISIONS

1    Definitions

DUTIES OF PARTIES

2    Dispute resolution by the parties

3    Best interests of child

4    Protection of children from conflict

5    Family dispute resolution process

6    Complete, accurate and up-to-date information

7    Duty to comply with orders

8    Certification

DUTIES OF LEGAL ADVISERS

9    Duty to encourage resolution

DUTIES OF COURT

10    Conduct of proceedings

11    Minimizing impact on a child

12    Identification of other orders

PART 2
DETERMINING PARENTAGE

DIVISION 1
INTRODUCTORY PROVISIONS

13    Definitions

14    Date of conception

15    Providing reproductive material

16    Parentage to be determined by this Part

17    Parentage if adoption

18    Donor not automatically parent

DIVISION 2
HOW PARENTAGE IS DETERMINED

19    Parentage if sexual intercourse

20    Parentage if assisted reproduction

21    Declaratory order respecting parentage — general

22    Surrogacy agreement

23    Application for declaratory order — surrogate consents

24    Application for declaratory order — no consent

DIVISION 3
GENERAL PROVISIONS

25    Effect of new evidence on a declaratory order

26    Parentage test

27    No distinction between child born inside or outside marriage

28    Void and voidable marriages

29    Filing orders and acknowledgements with Vital Statistics

DIVISION 4
DECLARATORY ORDERS MADE OUTSIDE MANITOBA

30    Definitions

31    Recognition of Canadian orders

32    Recognition of non-Canadian orders

33    Recognition of extra-provincial findings

34    Filing orders with Vital Statistics

PART 3
PARENTING ARRANGEMENTS, GUARDIANSHIP AND RELOCATION

DIVISION 1
INTRODUCTORY PROVISIONS

35    Best interests of the child

DIVISION 2
PARENTING ARRANGEMENTS

36    Joint rights of parents re children

37    Parenting order

38    Parenting time consistent with best interests of child

39    Variation of parenting order

40    Application for contact order

41    Contact order

42    Existing parenting order varied re contact

43    Variation of contact order

44    Agreement incorporated into parenting or contact order

45    Right to request information about child

46    No application for contact order if pending adoption

47    Order to locate and apprehend a child

DIVISION 3
GUARDIANSHIP

48    Guardianship order

DIVISION 4
RELOCATION

49    Definition — "relocation"

50    Notice of proposed relocation

51    Child may be relocated unless objection

52    Court order

53    Power of court if multiple proceedings

54    Variation of parenting or other order

DIVISION 5
NOTICE OF CHANGE OF RESIDENCE

55    Notice of change of residence

PART 4
CHILD AND SPOUSAL SUPPORT

DIVISION 1
DEFINITIONS

56    Definitions

DIVISION 2
CHILD SUPPORT

57    Duty to support child

58    Duty to provide financial information

59    Child support order

60    Parentage may be determined

61    Order to vary, suspend or terminate order

62    Child support agreement

DIVISION 3
SPOUSAL SUPPORT

63    Definition — "spouse"

64    Division applies to former spouses

65    Duty of mutual support

66    Onus of self-support after separation

67    Duty to provide financial information

68    Effect of separation agreement on support order

69    Spousal support order

70    Factors in making an order

71    Priority to child support

72    Review of spousal support

73    Order to vary, suspend or terminate order

DIVISION 4
GENERAL SUPPORT MATTERS

74    Matters that may be provided for in support orders

75    Enforcement of support orders

76    Assignment of support orders

77    Compensation for late support payments

78    Order cancelling arrears

79    Regulations re child support

PART 5
MISCELLANEOUS ORDERS RE SPOUSES AND PARTNERS

80    Order of exclusive occupation of family home

81    Order re conduct

82    Order to vary or terminate

83    Order of non-cohabitation

84    Finding re length of common-law relationship

PART 6
GENERAL POWERS OF THE COURT

85    Jurisdiction of Queen's Bench and Provincial Court

86    Excluding the public or prohibiting 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    Order may require review

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

100-102    Transitional provisions

PART 9
CONDITIONAL AND CONSEQUENTIAL AMENDMENTS

103    Conditional amendments

104-123    Consequential and related amendments

PART 10
REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE

124    Repeal

125    C.C.S.M. reference

126    Coming into force


THE FAMILY LAW ACT

PART 1

INTRODUCTORY PROVISIONS

Definitions

1

The following definitions apply in this Act.

"common-law partner" means either of two persons who are not married to each other and 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 »)

"contact order" means an order made under section 41. (« ordonnance de contact »)

"court" means the Court of Queen's Bench (Family Division) or, to the extent that it has jurisdiction under subsection 85(2), the Provincial Court (Family Division). (« tribunal »)

"decision-making responsibility" means responsibility for making significant decisions about a child's well-being, including in relation to the child's

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities. (« responsabilités décisionnelles »)

"family dispute resolution process" means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation, collaborative law and family arbitration. (« mécanisme de règlement des différends familiaux »)

"family justice services" means public or private services intended to help persons deal with issues arising from separation or divorce. (« services de justice familiale »)

"family member", except in section 40, includes a member of the household of

(a) a child;

(b) a parent of the child;

(c) a spouse or former spouse; and

(d) a person in or formerly in a marriage-like relationship;

as well as a dating partner of a person listed in clauses (b), (c) and (d) who participates in the activities of the household. (« membre de la famille »)

"family violence" means any conduct, whether or not the conduct constitutes a criminal offence, by a family member toward another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property. (« violence familiale »)

"government" includes an agency of the government. (« gouvernement »)

"legal adviser" means a person authorized to practise law in Manitoba under The Legal Profession Act. (« praticien du droit »)

"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 »)

"parental responsibilities" means the responsibilities associated with the care of a child, including responsibilities associated with parenting time and decision-making responsibility, but not including the responsibility to pay child support. (« responsabilités parentales »)

"parenting order" means an order made under section 37. (« ordonnance parentale »)

"parenting time" means the time that a child spends in the care of a person referred to in subsection 37(1) (parenting order), whether or not the child is physically with that person during all of that period. (« temps parental »)

"prescribed" means prescribed by regulation. (Version anglaise seulement)

"regulation" means a regulation made under this Act. (« règlement »)

"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 »)

DUTIES OF PARTIES TO A PROCEEDING

Dispute resolution by the parties

2

The parties to a proceeding under this Act must act in a way that strives

(a) to minimize conflict;

(b) to promote cooperation; and

(c) to meet the best interests of any child involved in the dispute.

Best interests of child

3

A person who has parental responsibilities respecting a child or who has contact with that child under a contact order must exercise their parental responsibilities or contact in a manner that is consistent with the best interests of the child.

Protection of children from conflict

4

A party to a proceeding under this Act must, to the best of their ability, protect any child from conflict arising from the proceeding.

Family dispute resolution process

5

To the extent that it is appropriate to do so, the parties to a proceeding under this Act must try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

Complete, accurate and up-to-date information

6

A party to a proceeding under this Act or a person who is subject to an order made under this Act must provide complete, accurate and up-to-date information if required to do so under this Act or any other applicable law.

Duty to comply with orders

7

A person who is subject to an order made under this Act must comply with the order until it is no longer in effect.

Certification

8

Every document that formally commences a proceeding under this Act, or that responds to such a document, which a party to a proceeding files with a court, must contain a statement by the party certifying that they are aware of their duties under sections 2 to 7.

DUTIES OF LEGAL ADVISERS

Duty to encourage resolution

9(1)

It is the duty of every legal adviser who undertakes to act on a person's behalf in any proceeding under this Act

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are such that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person

(i) in resolving the matters that may be the subject of an order under this Act, and

(ii) in complying with any order or decision made under this Act; and

(c) to inform the person of the parties' duties under this Act.

Certification

9(2)

Every document that formally commences a proceeding under this Act, or that responds to such a document, which a legal advisor files with a court, must contain a statement by the legal adviser certifying that they have complied with this section.

DUTIES OF COURT

Conduct of proceedings

10

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 family violence.

Minimizing impact on a child

11

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 the best interests of 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.

Identification of other orders

12(1)

The purpose of this section is to facilitate

(a) the identification of orders, undertakings, recognizances, agreements or measures that may conflict with an order under this Act; and

(b) the coordination of proceedings.

Information regarding other orders or proceedings

12(2)

In a proceeding under this Act and in relation to any party to that proceeding, the court has a duty to consider if any of the following are pending or in effect, unless the circumstances of the case are such that it would clearly not be appropriate to do so:

(a) a civil protection order or a proceeding in relation to such an order;

(b) a child protection order, proceeding, agreement or measure;

(c) an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature.

In order to carry out the duty, the court may make inquiries of the parties or review information that is readily available and that has been obtained through a search carried out in accordance with applicable law.

Definition — "civil protection order"

12(3)

In this section, "civil protection order" means a civil order that is made to protect a person's safety, including an order that prohibits a person from

(a) being in physical proximity to a specified person or following a specified person from place to place;

(b) contacting or communicating with a specified person, either directly or indirectly;

(c) attending at or being within a certain distance of a specified place or location;

(d) engaging in harassing or threatening conduct directed at a specified person;

(e) occupying a family home or a residence; or

(f) engaging in family violence.

PART 2

DETERMINING PARENTAGE

DIVISION 1

INTRODUCTORY PROVISIONS

Definitions

13

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 parent" means a person who gives birth to a child, regardless of whether the person's own reproductive material was used in the child's conception. (« parent naturel »)

"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 the donor's 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 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, enter into a surrogacy agreement. (« parent d'intention »)

"reproductive material" means a human sperm or ovum or other human cell or a human gene, and includes a part of any of them. (« matériel reproductif »)

"surrogacy agreement" means a written agreement between a surrogate and the intended parent or parents of a child to be carried by the surrogate, in which

(a) the surrogate agrees to not be a parent of the child; and

(b) the intended parent or parents agree to be the child's parent or parents. (« accord de gestation pour autrui »)

"surrogate" means a birth parent who is a party to a surrogacy agreement. (« gestatrice pour autrui »)

Date of conception

14

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 parent.

Providing reproductive material

15

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

16(1)

For all purposes of the law of Manitoba, the following rules apply:

1.

A person is the child of the person's 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 no more than two parents.

References in enactments and instruments

16(2)

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.

Exception

16(3)

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.

Parentage if adoption

17

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

18

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) must 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 IF SEXUAL INTERCOURSE

Parentage if sexual intercourse

19(1)

On the birth of a child conceived by sexual intercourse, the child's parents are the birth parent and the person whose sperm resulted in the conception of the child.

Presumption of parentage

19(2)

Unless the contrary is proved, a person is presumed to be a child's parent in any of the following circumstances:

1.

The person was married to or was in a marriage-like relationship with the child's birth parent at the time of the child's birth.

2.

The person was married to the child's birth parent and, in the 300-day period before the child's birth, the marriage was ended

(a) by the person's death;

(b) by a judgment of divorce; or

(c) as referred to in section 28 (void or voidable marriages).

3.

The person was in a marriage-like relationship with the child's birth parent and, in the 300-day period before the child's birth, the relationship ended for any reason.

4.

The person married the child's birth parent after the child's birth and acknowledged that the person is a parent of the child.

5.

The person and the child's birth parent have acknowledged in writing that the person is the child's parent.

6.

The person has been found or recognized by a court, whether in Manitoba or elsewhere, to be the child's parent in a proceeding other than under this Part.

No presumption in certain cases

19(3)

If more than one person may be presumed to be a child's parent under subsection (2), no presumption may be made under that subsection.

PARENTAGE IF ASSISTED REPRODUCTION

Parentage if assisted reproduction

20(1)

The birth parent of a child conceived through assisted reproduction is a parent of the child.

Other parent

20(2)

If the birth parent of a child conceived through assisted reproduction was married to or in a marriage-like relationship with another person when the child was conceived, the spouse or other person is also the child's parent.

Exception

20(3)

Subsection (2) does not apply if there is proof that, before the child was conceived, the spouse or other person

(a) did not consent to be the child's parent; or

(b) withdrew consent to be the child's parent.

Exception re surrogacy

20(4)

This section does not apply when the birth parent is a surrogate and the court has made a declaratory order under section 23 or 24.

DECLARATORY ORDER RE PARENTAGE —
GENERAL

Declaratory order respecting parentage — general

21(1)

Subject to sections 23 and 24, 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

21(2)

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

21(3)

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.

Order

21(4)

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 other person deceased

21(5)

The court may make a declaratory order under this section despite the death of the child or the person who is the subject of the application, or both.

Factors

21(6)

When an application concerns a child conceived by sexual intercourse or through assisted reproduction without a surrogate, the court

(a) must give effect to any applicable presumption or rule set out in section 19 or 20;

(b) may consider evidence of the biological parentage of a child conceived by sexual intercourse; and

(c) may consider evidence as to whether there was consent to parentage under subsection 20(3) if the child was born as a result of assisted reproduction.

DECLARATORY ORDER — SURROGACY AGREEMENT

Entering into a surrogacy agreement

22(1)

The intended parent or parents of a child and a surrogate may enter into a surrogacy agreement.

Agreement before conception

22(2)

A surrogacy agreement must be entered into before a child is conceived.

Assisted reproduction

22(3)

A child in relation to whom a surrogacy agreement is entered into must be conceived through assisted reproduction.

Content of agreement

22(4)

A surrogacy agreement must include the following provisions:

(a) that the potential surrogate will be the birth parent of a child conceived through assisted reproduction;

(b) that on the child's birth,

(i) the surrogate agrees not to be a parent of the child, and

(ii) the intended parent or parents agree to be the child's parent or parents;

(c) any provision required by the regulations.

Legal advice

22(5)

The surrogate and the intended parent or parents must each receive independent legal advice before entering into a surrogacy agreement, and a certificate to that effect must be attached to the agreement.

Shared parental responsibility

22(6)

Unless the surrogacy agreement provides otherwise, the surrogate and the intended parent or parents share the rights and responsibilities of a parent respecting the child from birth until the child is two days old.

Regulations

22(7)

For the purpose of clause (4)(c), the Lieutenant Governor in Council may make regulations respecting any additional provisions to be included in surrogacy agreements.

Application for declaratory order — surrogate consents

23(1)

If, after a child is born, the surrogate consents to relinquish entitlement to parentage of the child to the intended parent or parents, the intended parent or parents may apply to the court for a declaratory order that they are the child's parent or parents and the surrogate is not a parent.

Two-day waiting period

23(2)

The surrogate's consent must be in writing and must not be given before the child is two days old.

Conditions for making order

23(3)

The court must make the declaratory order sought under this section if it is satisfied that

(a) the surrogate and the intended parent or parents made a surrogacy agreement in compliance with the requirements of section 22;

(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 consented to relinquish entitlement to parentage of the child to the intended parent or parents in accordance with subsection (2), and

(ii) the intended parent or parents took the child into their care.

Application within 30 days

23(4)

An application under this section must be made within 30 days after the child's birth, unless the court extends the time.

Agreement not evidence of consent

23(5)

A surrogacy agreement is not consent for the purposes of subsection (2) but may be used as evidence of the parties' intentions respecting the child's parentage.

Application for declaratory order — no consent

24(1)

If the surrogate does not give the consent referred to in subsection 23(2), any party to the surrogacy agreement may apply to the court for a declaratory order as to the parentage of the child.

Reasons for failure to consent

24(2)

An application may be made under this section if the surrogate refuses to give consent or if consent is not given because the surrogate

(a) is deceased or otherwise incapable of providing consent; or

(b) cannot be located after reasonable efforts have been made to do so.

Conditions for making an order

24(3)

Before making a declaratory order under this section, the court must be satisfied that

(a) the surrogate and the intended parent or parents made a surrogacy agreement in compliance with the requirements of section 22; and

(b) before the child was conceived, no party to the surrogacy agreement withdrew from the agreement.

Declaratory order

24(4)

On application under this section, the court may make the declaratory order that is sought or make any other declaratory order of parentage as the court sees fit.

Child's best interests

24(5)

The most important consideration for the court in making a declaratory order under this section is the best interests of the child.

Effect of surrogacy agreement

24(6)

A surrogacy agreement is unenforceable in law but, in an application under this section, it may be used as evidence of

(a) an intended parent's or parents' intention to be a parent of the child contemplated by the agreement; and

(b) a surrogate's intention to not be a parent of a child contemplated by the agreement.

DIVISION 3

GENERAL PROVISIONS

Effect of new evidence on a declaratory order

25(1)

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

25(2)

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 test"

26(1)

In this section, "parentage test" means a test used to identify inheritable characteristics, including

(a) a human leukocyte antigen test (HLA);

(b) a test of the deoxyribonucleic acid (DNA); and

(c) any other test the court considers appropriate.

Parentage test

26(2)

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 a parentage test and to submit the results in evidence.

Consent required

26(3)

No tissue or blood sample may be taken from a person without the person's consent.

Capacity to consent

26(4)

If a person named in an order made under subsection (2) is too young to consent, consent may be given by the person's parent or guardian.

Inference from refusal

26(5)

If a person refuses to give a tissue or blood sample for the purpose of conducting a parentage test or if a required consent is not given, the court may draw any inference it considers appropriate.

Cost

26(6)

An order made under subsection (2) may require a party to pay all or part of the cost of a parentage test.

No distinction between child born inside or outside marriage

27

There is no distinction between the status of a child born inside marriage and a child born outside marriage.

Void marriages

28(1)

For the purposes of this Part, if two people have entered into a void marriage but one or both of them went through the form of marriage in good faith and they lived together afterwards, they are deemed to have been married during the period they lived together and their marriage is deemed to have ended when they stopped living together.

Voidable marriages

28(2)

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

29(1)

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 parentage may be filed

29(2)

A written acknowledgment of parentage referred to in item 5 of subsection 19(2) may be filed in the office of the Director.

DIVISION 4

DECLARATORY ORDERS MADE OUTSIDE MANITOBA

Definitions

30

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. (« conclusion 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 »)

COURT RECOGNITION OF
EXTRA-PROVINCIAL ORDERS AND FINDINGS

Recognition of Canadian extra-provincial declaratory order

31(1)

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 made under this Part.

Declining to recognize an order

31(2)

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 under duress.

Application for recognition of non-Canadian extra-provincial declaratory order

32(1)

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.

Translation of documents

32(2)

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 order

32(3)

Subject to subsection (4), a court must recognize an extra-provincial declaratory order made outside Canada 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 to the jurisdiction of the extra-provincial tribunal.

Once recognized, the extra-provincial declaratory order has the same effect as if it were a declaratory order made under this Part.

Declining to recognize an order

32(4)

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 under duress; or

(c) the extra-provincial declaratory order is contrary to public policy.

Recognition of extra-provincial findings

33

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.

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.

FILING ORDERS WITH VITAL STATISTICS

Filing an extra-provincial Canadian order — when court recognition not required

34(1)

Unless the Director of Vital Statistics determines that the circumstances require a court order under section 31, a certified copy of an extra-provincial declaratory order made in Canada that relates to a child born in Manitoba may be filed in the office of the Director. Once filed, the order may be given the same effect as if it were a declaratory order made under this Part.

Filing an extra-provincial order recognized by the Manitoba court

34(2)

If an extra-provincial declaratory order recognized under section 31 or 32 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.

If order made outside Canada

34(3)

In the case of an extra-provincial declaratory order made outside Canada, the copies filed under subsection (2) must be accompanied by a certified copy of the statement referred to in clause 32(1)(c) and any translation referred to in subsection 32(2).

PART 3

PARENTING ARRANGEMENTS,
GUARDIANSHIP AND RELOCATION

DIVISION 1

INTRODUCTORY PROVISIONS

Best interests of the child

35(1)

The court must only consider the best interests of the child in making a parenting order, a contact order or a guardianship order.

Primary consideration

35(2)

When considering the factors referred to in subsection (3), the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

Factors to be considered

35(3)

In determining the best interests of a child, the court must consider all of the factors related to the child's circumstances, including the following:

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each person who has or is seeking parental responsibilities or contact with the child or who is a guardian or seeks guardianship of the child, as well as with siblings, grandparents and any other person who plays an important role in the child's life;

(c) the willingness of each person seeking parental responsibilities, guardianship or contact with the child to support the development and maintenance of the child's relationship with other persons to whom the order would apply;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plan for the child's care;

(h) the ability and willingness of each person in respect of whom the order is to apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order is to apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on matters affecting the child;

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

35(4)

In considering the impact of any family violence under clause (3)(j), the court must take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child;

(h) any other relevant factor.

Past conduct

35(5)

In determining what is in a child's best interests, the court must not consider the past conduct of any person unless the conduct is relevant to their exercise of parental responsibilities, their responsibilities under a guardianship order or their contact with the child.

Interim and variation orders

35(6)

This section also applies when the court is making an interim or variation order.

DIVISION 2

PARENTING ARRANGEMENTS

JOINT RIGHTS OF PARENTS

Joint rights of parents respecting children

36

Subject to a parenting order under section 37, parents have joint rights to exercise parental responsibilities with respect to their children, unless the parents have never cohabited after a child is born, in which case the parent with whom the child resides is the only parent with decision-making responsibility and parenting time respecting the child.

PARENTING ORDER

Parenting order

37(1)

The court may make an order respecting parental responsibilities for a child on application by

(a) either or both parents; or

(b) a person other than a parent who stands in the place of a parent or intends to stand in the place of a parent, if there is leave of the court and notice of the application is given to the parents.

Content of parenting order

37(2)

A parenting order may

(a) allocate parenting time;

(b) allocate decision-making responsibility, or any of its elements, to either parent, to both parents, to a person described in clause (1)(b), or to any combination of them;

(c) include requirements about the oral or written communication or communication by other means that may occur — during parenting time allocated to a person — between a child and another person to whom parental responsibilities are allocated;

(d) provide that a child must not be removed from a specified geographic area without the written consent of a specified person or without a court order authorizing the removal; and

(e) provide for any other matter the court considers appropriate.

Duration of order

37(3)

The court may make a parenting order for a definite or indefinite period or until a specified event occurs and may impose any terms, conditions and restrictions that it considers appropriate.

Relocation

37(4)

The order may authorize or prohibit the relocation of the child.

Parenting time consistent with best interests of child

38(1)

In allocating parenting time under a parenting order, the court must give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests.

Schedule for parenting time

38(2)

Parenting time may be allocated by way of a schedule, unless a schedule is unnecessary in the circumstances.

Day-to-day decisions

38(3)

A person to whom parenting time is allocated has exclusive authority to make all day-to-day decisions affecting the child during the allocated time, unless the court orders otherwise.

Supervision

38(4)

A parenting order may require that parenting time with a child or the transfer of the child from one person to another be supervised.

Variation of parenting order

39(1)

The court may vary, suspend or terminate a parenting order on application by

(a) a parent;

(b) a person standing in the place of a parent who has parental responsibilities under an order; or

(c) a person standing in the place of a parent who does not have parental responsibilities under an order, if there is leave of the court.

Factors

39(2)

Before making a variation order, the court must be satisfied that the child's circumstances have changed since the original order was made or last varied.

Terminal illness or critical condition

39(3)

For certainty, a terminal illness or critical condition of a person listed in subsection (1) is a change in the child's circumstances.

CONTACT ORDER

Definition — "family member"

40(1)

In this section, "family member" of a child means a step-parent, sibling, grandparent, aunt, uncle, cousin, and a spouse or common-law partner of any of them.

Purpose of contact order

40(2)

The purpose of this section and section 41 is

(a) to facilitate relationships between children and their grandparents and other family members, when those relationships are in the child's best interests; and

(b) to recognize that in exceptional circumstances children can benefit from contact with non-family members under a contact order, when such contact is in the child's best interests.

Application for contact — family member

40(3)

A family member may apply to the court for a contact order.

Application for contact — non-family member

40(4)

A person who is not a family member may apply to the court for a contact order if there is leave of the court.

Notice

40(5)

An applicant for a contact order must give notice of the application in accordance with the regulations.

Exceptional circumstances required re non-family member

40(6)

Before making a contact order respecting a non-family member, the court must be satisfied that exceptional circumstances warrant doing so.

Considerations

40(7)

In determining whether to make a contact order, the court must consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, for example during the parenting time of another person.

Contact order

41(1)

On an application under section 40, the court may make an order respecting contact between the applicant and the 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 35.

Content of contact order

41(2)

A contact order may include, but is not limited to, any or all of the following provisions:

(a) that the child spend specified periods of time with the person granted contact;

(b) that the person granted contact 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 contact, directly or indirectly;

(d) that the child and the person granted contact 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 contact pictures of the child and information about the child's health, education and well-being;

(f) that the child not be removed from a specified geographic area without the written consent of a specified person or without a court order authorizing the removal.

Duration of order

41(3)

The court may make a contact order for a definite or indefinite period or until a specified event occurs and may impose any terms, conditions and restrictions that it considers appropriate.

Supervision

41(4)

A contact order may require that contact with a child or the transfer of the child from one person to another be supervised.

Existing parenting order varied

42

If a parenting order concerning a child is in place when a contact order is made, the court may make an order varying the parenting order to take into account the contact order.

Variation of contact order

43

The court may, on application, vary, suspend or terminate a contact order if the court is satisfied that the child's circumstances have changed since the original order was made or last varied, and sections 41 and 42 apply in relation to that application.

AGREEMENT INCORPORATED INTO PARENTING OR CONTACT ORDER

Parenting plan agreement

44(1)

The court must incorporate into a parenting order or a contact order any written parenting plan agreement between the parties respecting parenting arrangements unless the court considers it is not in the child's best interests to do so, in which case the court may, in the order, make any modifications to the agreement that it considers appropriate.

Definition — "parenting plan agreement"

44(2)

In subsection (1), "parenting plan agreement" means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

RIGHT TO INFORMATION ABOUT CHILD

Right to request information about child

45(1)

Unless the court orders otherwise, a parent and any person with parental responsibilities under a parenting order is entitled to request information about the child's health, education and well-being from

(a) another person with parental responsibilities; or

(b) any other person or entity who is likely to have the information.

Information to be given

45(2)

Any person making a request is entitled to be given the information by the persons or entities who have it, subject to any applicable law.

Information only

45(3)

The right to be given information about a child under this section does not confer any decision-making responsibility concerning the child on a person who does not already have that responsibility or the right to be consulted about a decision respecting the child.

NO APPLICATION FOR CONTACT ORDER IF
PENDING ADOPTION

No application for contact order if pending adoption

46

When a child has been placed for adoption, no application may be made for a contact order in relation to the child until an order of adoption is made or the placement is otherwise terminated.

ORDER TO LOCATE AND APPREHEND CHILD

Order to locate and apprehend a child

47(1)

On application for a parenting order or a contact order under this Part or a comparable order under the Divorce Act (Canada), the court may make one or both of the following orders:

(a) authorizing the applicant or someone on their behalf to locate and apprehend the child, in which case section 9 of The Child Custody Enforcement Act applies, with necessary changes;

(b) requiring 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.

Notice

47(2)

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

Guardianship order

48(1)

On application by a person who is neither a parent nor a person who stands in the place of a parent, the court may appoint the applicant as guardian of the person of a child.

Notice

48(2)

A guardianship order must not be made unless the person applying for the order has given notice of the time, date and place of the hearing of the application in accordance with the regulations.

No application for order if pending adoption

48(3)

If a child has been placed for adoption, no application may be made for a guardianship order until an order of adoption is made or the placement is otherwise terminated.

Effect of order

48(4)

When a guardianship order is made, the applicant is for all purposes the guardian of the person of the child and has parental responsibilities respecting the child and is responsible for the child's support and well-being.

Order to remove guardian

48(5)

On application by a parent, guardian or person standing in the place of a parent, the court may remove a guardian appointed under this section, with or without appointing another guardian.

DIVISION 4

RELOCATION

Definition — "relocation"

49

In this Division, "relocation" means a change in the place of residence of

(a) a child;

(b) a parent;

(c) a guardian; or

(d) a person standing in the place of a parent who has parental responsibilities under a parenting order;

that is likely to have a significant impact on the child's relationship with a parent, a guardian, a person standing in the place of a parent who has parental responsibilities under a parenting order or a person who has contact with the child under a contact order.

NOTICE OF PROPOSED RELOCATION

Notice of proposed relocation

50(1)

When a parent with parental responsibilities, a guardian or a person standing in the place of a parent who has parental responsibilities under a parenting order plans to relocate — whether with or without the child — they must give notice of the proposed relocation in accordance with this section.

Information Note

A parent may have parental responsibilities

(1) under a court order; or

(2) by operation of law, for example under section 36 of this Act (joint rights of parents respecting children).

How notice is to be given

50(2)

At least 60 days before the expected date of the relocation, the notice must be given to any person who

(a) is a parent who has parental responsibilities;

(b) is a guardian;

(c) stands in the place of a parent and has parental responsibilities under a parenting order;

(d) has contact with the child under a contact order; or

(e) has applied for a parenting order, a guardianship order or a contact order where the application is pending.

When 60-day notice period does not apply

50(3)

The 60-day notice period does not apply if a court order specifies another period.

Content of notice

50(4)

The notice must be in the prescribed form and set out

(a) the date of the proposed relocation;

(b) the address of the proposed new residence;

(c) the contact information of the person or the child, whichever applies;

(d) a proposal for new parenting and contact arrangements; and

(e) any other prescribed information.

Exemption from notice requirement

50(5)

On application, the court may order that the requirement to give notice under this section does not apply, or may modify the requirement, if the court considers it appropriate to do so, including where there is a risk of family violence.

Application for exemption

50(6)

An application for an exemption from the notice requirement may be made without notice to any other party.

RELOCATION UNLESS OBJECTION

Child may be relocated unless objection

51(1)

A person who has given notice under section 50 and who intends to relocate a child may do so as of the date referred to in the notice unless a person entitled to object under subsection (2), within 30 days after receiving the notice,

(a) gives a written notice of objection to the person wishing to relocate the child; or

(b) applies to the court under clause 52(1)(b) for an order prohibiting the child's relocation.

Persons entitled to object

51(2)

A parent who has parental responsibilities, a guardian and a person standing in the place of a parent who has parental responsibilities under a parenting order may object to the child's relocation.

Content of notice of objection

51(3)

A notice of objection must be in the prescribed form and set out

(a) a statement that the person objects to the proposed relocation;

(b) the reasons for the objection;

(c) the person's views on the proposal set out in the notice of relocation respecting the exercise of parenting time, decision-making responsibility or contact, whichever applies; and

(d) any other prescribed information.

Exception

51(4)

Relocation is not permitted under subsection (1) if there is an existing court order prohibiting it.

COURT ORDER RE RELOCATION

Application to permit or prohibit relocation

52(1)

A court may make an order authorizing or prohibiting a child's relocation on application by

(a) the person who intends to relocate the child; or

(b) a person who is entitled to object to the relocation under subsection 51(2).

Best interests of child — additional factors

52(2)

In deciding whether to authorize or prohibit a child's relocation, the court must, in order to determine what is in the child's best interests, consider the following factors in addition to those set out in section 35:

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parental responsibilities or has an application pending for a parenting order, and the level of involvement of each of them in the child's life;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 50, an order or an agreement;

(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside or that imposes restrictions on relocation;

(f) the reasonableness of the arrangements proposed by the person who intends to relocate the child for other persons who have parental responsibilities or are entitled to have contact with the child, taking into consideration, among other things, the location of the new place of residence and travel expenses;

(g) whether any arrangements for having parental responsibilities or contact 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 related expenses between the parties.

When person relocating must demonstrate best interests

52(3)

If, when an application is made, the person who intends to relocate the child and another person with parental responsibilities have substantially equal parenting time with the child under an order or agreement (with which the parties are in substantial compliance), the court must not authorize the relocation unless the person intending to relocate the child can demonstrate that the relocation is in the child's best interests.

When person objecting must demonstrate best interests

52(4)

If, when an application is made, the person who intends to relocate the child spends the vast majority of time with the child under an order or agreement (with which the parties are in substantial compliance), the court must authorize the relocation unless the person opposing relocation demonstrates that it is not in the child's best interests.

If interim order

52(5)

When the parties are complying with an order that is an interim order, the court must determine whether it is appropriate for the principles in subsections (3) and (4) to apply.

If neither subsection (3) nor (4) applies

52(6)

If neither subsection (3) nor (4) applies, the court's determination is to be made on the basis of the child's best interests, with each party having to prove what is in the child's best interests.

Costs

52(7)

If the court authorizes a child's relocation, it may provide for apportioning the costs related to the exercise of parental responsibilities by a person who is not relocating, as between that person and the person relocating the child.

Factor not to be considered

52(8)

In deciding whether to authorize a child's relocation, the court must not consider, if the child's relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

MULTIPLE PROCEEDINGS

Power of court if multiple proceedings

53

If an application for a parenting order 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 PARENTING ORDER

Power of court to vary a parenting or other order

54

A court that makes an order respecting relocation under section 52 may (without a further application) vary any existing parenting order, guardianship order or contact order if it is satisfied that the child's needs or circumstances have changed as a result of the order under section 52.

DIVISION 5

NOTICE OF CHANGE OF RESIDENCE

Notice of change of residence

55(1)

Unless a court order provides otherwise, the following persons must give written notice under this section if they plan to change their place of residence or that of a child:

(a) a parent who has parental responsibilities;

(b) a guardian;

(c) a person standing in place of a parent who has parental responsibilities under a parenting order;

(d) a person who has contact with a child under a contact order.

To whom notice must be given

55(2)

The notice must be given to any person who

(a) is a parent who has parental responsibilities;

(b) is a guardian;

(c) stands in the place of a parent and has parental responsibilities under a parenting order; or

(d) has contact with the child under a contact order.

Content of notice

55(3)

The notice must set out the date of the change and all available address and contact information concerning the new residence.

Notice — significant impact

55(4)

If the change is likely to have a significant impact on the child's relationship with the person giving notice under subsection (1), the notice must be given at least 60 days before the change in place of residence, in the prescribed form, and must set out, in addition to the information required in subsection (3), a proposal as to how contact could be exercised in light of the change, and any other prescribed information.

Exemption from notice requirement

55(5)

On application, the court may order that the requirement to give notice under this section does not apply or may modify the requirement, if the court considers it appropriate to do so, including where there is a risk of family violence.

Application for exemption

55(6)

An application for an exemption may be made without notice to any other party.

When notice not required

55(7)

A person required to give notice of relocation under section 50 need not give an additional notice under this section.

PART 4

CHILD AND SPOUSAL SUPPORT

DIVISION 1

DEFINITIONS

Definitions

56

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 the child's 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 the child's parents. (« enfant »)

"child support guidelines" means the Child Support Guidelines Regulation made under section 79. (« lignes directrices sur les pensions alimentaires pour enfants »)

"child support order" means an order made under section 59. (« ordonnance alimentaire au profit d'un enfant »)

"child support service" has the same meaning as in The Child Support Service Act. (« service des aliments pour enfants »)

"spousal support order" means an order made under section 69. (« 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

57(1)

Each parent of a child has a duty to provide reasonably for the child's support, whether or not the parent has parenting time or decision-making responsibility with respect to the child.

Secondary duty to provide support

57(2)

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 the place of a parent to a child has a duty respecting that child.

Parent's duty continues

57(3)

The duty of a parent or person standing in the place of a parent to provide support for a child continues even if a guardian has been appointed for the child.

DUTY TO PROVIDE FINANCIAL
INFORMATION

Financial information

58(1)

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.

Order

58(2)

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.

Order re confidentiality

58(3)

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

Child support order

59(1)

The court may make an order requiring a parent or a person with a duty under section 57 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

59(2)

The court may make a child support order against more than one person.

Child support guidelines apply

59(3)

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

59(4)

The court may order 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 57, 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.

Reasons

59(5)

The court must record its reasons for making a decision under subsection (4).

Consent order

59(6)

With the parties' consent, the court may order 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.

Reasonable arrangements

59(7)

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

60(1)

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 26.

Effect of finding of parentage

60(2)

A finding of parentage under clause (1)(a) has effect only for the purpose of a child support proceeding under this Part.

Payment for tests

60(3)

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

61(1)

On application, a court may vary, suspend or terminate a child support order or a part of it, and it may do so prospectively or retroactively.

Factors in making an order

61(2)

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

61(3)

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

61(4)

Subsections 59(4) to (7) apply, with necessary changes, when an application is made to vary, suspend or terminate a child support order.

If order combines support for children and spouse

61(5)

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

Child support agreement

62(1)

A child's parent or person with a duty to support a child may enter into a written agreement with

(a) another parent;

(b) a person standing in the place of a parent; or

(c) a guardian;

whereby the parent or person with a duty to support agrees to pay support for the child.

Order may still be applied for

62(2)

An agreement does not prevent a person from applying for a child support order.

Order terminates previous agreement

62(3)

A child support order terminates any previous agreement respecting child support.

DIVISION 3

SPOUSAL SUPPORT

Definition — "spouse"

63

In this Division and Division 4, "spouse" includes a common-law partner.

Division applies to former spouses

64

A former spouse may apply for a spousal support order under this Division and, in that case, this Division and Division 4 apply with necessary changes.

DUTY TO SUPPORT

Duty of mutual support

65(1)

Spouses have the mutual duty to contribute reasonably to each other's support.

Conduct

65(2)

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.

Personal expenses

65(3)

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

66

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 65(1).

DUTY TO PROVIDE FINANCIAL
INFORMATION

Financial information

67(1)

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.

Order

67(2)

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.

Order re confidentiality

67(3)

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 SUPPORT ORDER

Effect of separation agreement

68(1)

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.

Exception

68(2)

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.

Order terminates agreement

68(3)

When a court makes a spousal support order in a circumstance mentioned in subsection (2), the order terminates the agreement for spousal support.

Certain clauses inoperative

68(4)

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

Spousal support order

69

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.

Factors in making an order

70(1)

In determining whether to make a spousal support order and the amount and duration of any 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 spouse.

4.

The household standard of living of each spouse.

5.

The financial needs of each spouse.

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

70(2)

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 65 (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 TO CHILD SUPPORT

Priority to child support

71(1)

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.

Reasons

71(2)

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

71(3)

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

Review of spousal support

72(1)

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 is to take place;

(c) the grounds on which a review is to be permitted;

(d) the matters to be considered in a review.

Review by court

72(2)

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 69.

ORDER TO VARY, SUSPEND OR TERMINATE
SPOUSAL SUPPORT ORDER

Order to vary, suspend or terminate spousal support order

73(1)

On application, a court may vary, suspend or terminate a spousal support order.

Factors in making an order

73(2)

Before making an order under subsection (1), the court must be satisfied that a change in the condition, 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.

DIVISION 4

GENERAL SUPPORT MATTERS

MATTERS THAT MAY BE PROVIDED FOR
IN SUPPORT ORDERS

Matters that may be provided for in support orders

74

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.

With respect to a child support order, that the amount of child support must not be recalculated by the child support service.

7.

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.

8.

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.

9.

That the parties provide each other with updated financial information annually or at other specified times.

10.

That a spouse who is required to pay support maintain coverage for the other spouse and any children on the medical, dental or other health care plan of the spouse required to pay support.

11.

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.

12.

That payment under the order be secured by a charge on property or otherwise.

ENFORCEMENT OF SUPPORT

Enforcement of support orders

75

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.

Assignment of support orders

76

When a support order or agreement has been assigned under section 13 of The Family Support Enforcement Act, the Director of Assistance designated under The Manitoba Assistance Act

(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

77(1)

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.

Maximum $5,000

77(2)

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 $5,000 to the person entitled to receive support.

ORDER CANCELLING ARREARS

Order cancelling arrears

78

The court may, on application, cancel arrears under a support order, in whole or in part, if the court is satisfied that,

(a) having regard to the interests of the person in arrears or their estate, it would be grossly unfair and inequitable not to do so; and

(b) having regard to the interests of the person to whom the arrears are owed or their estate, the cancellation is fair and equitable.

REGULATIONS

Regulations respecting child support

79(1)

The Lieutenant Governor in Council may make regulations establishing guidelines for the making of child support orders under this Part, and which permit Manitoba's designation under subsection 2(5) of the Divorce Act (Canada).

Guidelines

79(2)

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

(a) respecting the way in which the amount of 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) adopting, in whole or in part, and as amended from time to time, any regulation, guideline, rule or procedure;

(i) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Part.

PART 5

MISCELLANEOUS ORDERS RE SPOUSES
AND PARTNERS

Definition — "family home"

80(1)

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

80(2)

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; and

(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.

Limit on exclusive occupation of family home

80(3)

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

Order respecting conduct

81(1)

Unless it would be more appropriate to make an order under The Domestic Violence and Stalking Act, on application by a spouse or former 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; and

(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.

Exceptions

81(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 resolution of court proceedings or the resolution of family matters that will avoid court proceedings; and

(c) permit the parties parenting time.

ORDER TO VARY OR TERMINATE

Order to vary or terminate

82

The court that made an order under section 80 or 81 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

Order of non-cohabitation

83

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

84

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 on which their cohabitation began and ended.

PART 6

GENERAL POWERS OF THE COURT

Jurisdiction of Queen's Bench (Family Division)

85(1)

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 (Family Division)

85(2)

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 74 that a lump sum payment of support be made in trust;

(b) an order under item 12 of section 74 that payment of support be secured by a charge on property;

(c) an order under subsection 80(2) respecting occupation of the family home or postponing rights respecting the family home.

EXCLUDING THE PUBLIC OR
PROHIBITING PUBLICATION

Excluding the public or prohibiting publication

86

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 publication would cause undue hardship to the party or child or be detrimental to the child's health or well-being.

SPOUSE A COMPELLABLE WITNESS

Spouse a compellable witness

87

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

RECONCILIATION EFFORTS

Court may ask about reconciliation

88(1)

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; and

(c) refer the parties to a counsellor 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

88(2)

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.

Exception

88(3)

Subsection (2) does not apply to a proceeding under Part III (Child Protection) of The Child and Family Services Act.

APPEALS

Appeals

89(1)

A party may appeal an order made under this Act, including an interim order, to the Court of Appeal.

Time limit

89(2)

The time limit for filing an appeal is 30 days after the order is signed, unless the Court of Appeal extends the time limit.

Powers of Court on appeal

89(3)

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

89(4)

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

Interim order

90(1)

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.

Notice

90(2)

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.

Requirements or factors

90(3)

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

Consent order

91

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

92

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

93

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

Order may require review

94(1)

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.

Timing of review

94(2)

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

94(3)

On a review, the court may continue, vary or terminate the order.

ORDER TO PROVIDE ADDRESS

Order to provide address

95(1)

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.

Notice

95(2)

An application must be served on the person, the government or other entity from whom the information is sought.

Information to be provided

95(3)

Any person, the government or other entity to whom an order is directed must comply with the order, despite any other enactment or law requiring confidentiality.

Assessing risk of family violence or stalking

95(4)

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 family violence or stalking.

PART 7

MISCELLANEOUS PROVISIONS

Offence

96

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 a term of not more than one year, or both.

Regulations

97

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 surrogacy agreements under Division 2 of Part 2;

(d) respecting relocation under Division 4 of Part 3;

(e) respecting forms for the purposes of this Act and providing for their use;

(f) defining any word or phrase used but not defined in this Act;

(g) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Act.

No limitation period

98

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 are additional

99

Rights given under this Act are in addition to and not a substitute for rights given under any other law.

PART 8

TRANSITIONAL PROVISIONS

Transition re Family Maintenance Act

100(1)

In this section, "former Act" means The Family Maintenance Act.

Act applies to existing proceedings

100(2)

Any proceedings commenced under Parts I to V of the former Act and not fully disposed of before the coming into force of this section are to be dealt with and disposed of under this Act.

Declaration of parentage continues

100(3)

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 and access order

100(4)

An order respecting the 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 a parenting order made under Part 3 of this Act.

Agreement re custody and access

100(5)

When an agreement made before the coming into force of this section provides a parent with custody of or access to a child, that parent has parental responsibilities or parenting time with respect to that child under this Act.

Interpretation of custody and access order and agreement

100(6)

For the purpose of subsections (4) and (5),

(a) a parent with custody of a child is deemed to have decision-making responsibility and parenting time with respect to the child;

(b) a parent with access is deemed to have parenting time with the child; and

(c) decision-making responsibility and parenting time under this Act are as described in the order or agreement respecting custody or access.

Support order continues

100(7)

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 by the child support service — as if the order were a support order made under this Act.

Recalculation order continues

100(8)

An order respecting the recalculation of child support made under the former Act by a court or the child support 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

100(9)

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 80 of this Act.

Order prohibiting or restricting communications continues

100(10)

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 81 of this Act.

Order of non-cohabitation continues

100(11)

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 83 of this Act.

Finding re length of common-law relationship continues

100(12)

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 84 of this Act.

Transition re Child and Family Services Act

101(1)

In this section, "former Act" means Part VII of The Child and Family Services Act.

Former Act applies to existing proceedings

101(2)

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.

Guardianship order continues

101(4)

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.

Access order continues

101(5)

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.

Transitional regulations

102

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 of this Act, including regulations to remedy any difficulty, inconsistency or impossibility resulting from the transition.

PART 9

CONDITIONAL AND CONSEQUENTIAL AMENDMENTS

CONDITIONAL AMENDMENTS

Conditional amendment

103(1)

This section applies if Schedule A of The Disability Support Act and Amendments to The Manitoba Assistance Act, S.M. 2021, c. 60, is in force on the day this Act comes into force or comes into force on or after the day this Act comes into force.

103(2)

Section 76 of this Act is replaced with the following:

Assignment of support orders

76

When a support order or agreement has been assigned under section 13 of The Family Support Enforcement Act, the Director of Assistance designated under The Manitoba Assistance Act or the director designated under The Disability Support Act, as the case may be,

(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.

CONSEQUENTIAL AMENDMENTS

The Adoption Act

C.C.S.M. c. A2 amended

104(1)

The Adoption Act is amended by this section.

104(2)

Subsection 1(1) is amended in the definition "parent" by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

104(3)

Section 24 is amended, in the part before clause (a), by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act or a predecessor Act".

104(4)

Section 25 is amended, in the part before clause (a), by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act or a predecessor Act".

104(5)

Clause 50(e) is amended by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act or a predecessor Act".

104(6)

Clause 67(e) is amended by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act or a predecessor Act".

104(7)

Clause 85(e) is amended by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act or a predecessor Act".

The Arbitration Act

C.C.S.M. c. A120 amended

105(1)

The Arbitration Act is amended by this section.

105(2)

Subsection 1(1) is amended

(a) in clause (a) of the definition "family arbitration", by striking out "The Family Maintenance Act" and substituting "The Family Law Act or The Family Maintenance Act (now repealed)"; and

(b) in clause (a) of the definition "family law dispute", by striking out "or access to" and substituting ", access to or contact with".

105(3)

Subsection 5(1.2) is amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act, The Family Maintenance Act (now repealed)".

105(4)

Clause 5.1(2)(a) is amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act or The Family Maintenance Act (now repealed)".

105(5)

Section 31.1 is amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act, The Family Maintenance Act (now repealed)".

105(6)

Subsection 45(9) is amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act".

105(7)

Subsection 49(9) is amended

(a) by striking out "The Family Maintenance Act" and substituting "The Family Law Act or The Family Maintenance Act (now repealed)"; and

(b) by striking out "maintenance order under Part VI of that Act" and substituting "support order under The Family Support Enforcement Act".

The Child and Family Services Act

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

106(1)

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

106(2)

Subsection 1(1) is amended

(a) in the definition "court", by striking out ", and in Part VII"; and

(b) in the definition "parent", by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

106(3)

Part VII (Private Guardianship of the Person and Access) is repealed.

The Child Support Service Act

C.C.S.M. c. C96 amended

107(1)

The Child Support Service Act is amended by this section.

107(2)

Section 1 is amended

(a) by replacing the definition "child support guidelines" with the following:

"child support guidelines" means

(a) the child support guidelines established by regulation under The Family Law Act or The Family Maintenance Act (now repealed); or

(b) the Federal Child Support Guidelines under the Divorce Act (Canada);

whichever guidelines apply. (« lignes directrices sur les pensions alimentaires pour enfants »)

(b) in the definition "child support order", by striking out "The Family Maintenance Act" and substituting "The Family Law Act"; and

(c) in the definition "parent", by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

107(3)

Subsection 2(1) is amended by adding "(now repealed)" after "The Family Maintenance Act".

107(4)

Subsection 3(3) is amended by striking out "under The Family Maintenance Act".

107(5)

Clause 4(1)(a) is amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act".

107(6)

Subsection 7(1) is replaced with the following:

Right to object to recalculation

7(1)

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

(a) an order under The Family Law Act or the Divorce Act (Canada) to vary, suspend or terminate the child support order;

(b) an order under The Arbitration Act to vary, suspend or terminate the family arbitration award; or

(c) an order referred to in clause 4(1)(a), (b) or (c) if there is no child support order or family arbitration award that includes child support.

107(7)

Subsection 7(4) is amended by striking out "decision or agreement" and substituting "decision, agreement or family arbitration award".

107(8)

The following is added after section 10:

Protection from liability

10.1

No action or proceeding may be brought against the child support service or any 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 or the regulations.

Not compellable in civil proceeding

10.2

No person acting under the authority of this Act is compellable as a witness in a civil action or other proceeding to which they are not a party respecting any document or information obtained, received or made under this Act or the regulations, and may not be compelled to produce such documents.

The Provincial Court Act

C.C.S.M. c. C275 amended

108(1)

The Provincial Court Act is amended by this section.

108(2)

Section 20 is amended

(a) in the section heading of the English version, by striking out "maintenance" and substituting "support";

(b) by adding "support," before "alimony"; and

(c) by striking out "The Family Maintenance Act" and substituting "The Family Law Act or The Family Maintenance Act (now repealed)".

108(3)

Subsection 20.4(1) is amended by striking out "custody, access" and substituting "parental responsibilities, contact".

The Court of Queen's Bench Act

C.C.S.M. c. C280 amended

109(1)

The Court of Queen's Bench Act is amended by this section.

109(2)

The definition "family proceeding" in section 41 is amended:

(a) by replacing clause (b) with the following:

(b) parental responsibilities, contact or guardianship respecting a child,

(b) 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,

(c) by replacing clause (h) with the following:

(h) The Family Law Act or The Family Maintenance Act (now repealed),

109(3)

Subsection 49(1) is amended by striking out "custody, access" and substituting "parental responsibilities, contact".

109(4)

Clause 72.1(5)(a) is replaced with the following:

(a) an order in a family proceeding, as defined in section 41, that determines or varies the obligation to provide support

(i) as between spouses, former spouses or persons who are cohabitating, or have cohabited, in a conjugal relationship,

(ii) as between a parent and a child of the parent, or

(iii) by a person, other than a parent, for a child;

The Child Custody Enforcement Act

C.C.S.M. c. C360 amended

110(1)

The Child Custody Enforcement Act is amended by this section.

110(2)

Section 1 is amended

(a) by adding the following definition:

"access" includes contact with a child; (« visite »)

(b) by replacing the definition "custody order" with the following:

"custody order" means

(a) an order or that part of an order that grants custody of a child, or the effect of which is to grant custody of a child, to any person, including provisions, if any, granting another person a right of access or visitation to the child, and

(b) a parenting order under The Family Law Act or the Divorce Act (Canada) or a corresponding order made by an extra-provincial tribunal; (« ordonnance de garde »)

110(3)

Section 7 is amended by striking out "The Child and Family Services Act and The Family Maintenance Act" and substituting "The Family Law Act".

110(4)

Subsection 9(7) is amended by striking out "The Child and Family Services Act or The Family Maintenance Act" and substituting "The Family Law Act".

The Domestic Violence and Stalking Act

C.C.S.M. c. D93 amended

111(1)

The Domestic Violence and Stalking Act is amended by this section.

111(2)

Clause 2(1)(e) is amended by striking out "Part II of the Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

111(3)

Subclause 7(1)(c.1)(ii) is amended, in the part before paragraph (A), by adding ", parenting arrangements" after "access".

111(4)

Subsection 14(1) is amended

(a) by replacing clause (d) 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 80(2) of The Family Law Act, or

(ii) clause 10(1)(b.2) or subsection 10(5) of The Family Maintenance Act (now repealed);

(b) in clause (p),

(i) in the English version, by striking out "an order has been made" and substituting "an order was made"; and

(ii) by adding "(now repealed)" after "The Family Maintenance Act".

111(5)

Subsection 14(2) is amended by striking out "subsection 10(6) (right of occupancy restricted) of The Family Maintenance Act" and substituting "subsection 80(3) (limit on exclusive occupation of family home) of The Family Law Act".

111(6)

Section 22 is amended

(a) by replacing clause (a) with the following:

(a) an order or agreement respecting custody, access or parenting arrangements;

(a.1) an order obtained under subsection 81(1) (order respecting conduct) of The Family Law Act;

(b) in clause (b), by adding "(now repealed)" after "The Family Maintenance Act".

111(7)

The following is added after section 27:

Transitional re Family Maintenance Act

27.1(1)

Despite the repeal of clauses 10(1)(c) (no entry to spouse's premises) and (d) (non-molestation) and Division 2 (non-molestation order by magistrate) of Part V of The Family Maintenance Act (now repealed), an order or interim order made under those provisions continues in force and may be revoked in whole or in part, but must 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

27.1(2)

Despite subsection (1), when a protection order or prevention order is made under this Act in respect of persons who are also parties to an order made in whole or in part 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 non-molestation 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

27.1(3)

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

The Domicile and Habitual Residence Act

C.C.S.M. c. D96 amended

112

Section 1 of The Domicile and Habitual Residence Act is amended by replacing clause (c) of the definition "child" with the following:

(c) is not a parent with parental responsibilities as defined in The Family Law Act respecting a child;

The Family Property Act

C.C.S.M. c. F25 amended

113(1)

The Family Property Act is amended by this section.

113(2)

Clause 6(2)(a) is replaced with the following:

(a) made under The Family Law Act or The Family Maintenance Act (now repealed); or

113(3)

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 7 of section 74 of The Family Law Act, or

(iii) clause 10(1)(i) of The Family Maintenance Act (now repealed); or

113(4)

Clause 41(1)(b) of the English version is amended by adding "support or" after "pay".

The Infants' Estates Act

C.C.S.M. c. I35 amended

114

The definition "parent" in section 1 of The Infants' Estates Act is amended by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

The Inter-jurisdictional Support Orders Act

C.C.S.M. c. I60 amended

115

Subsection 11(3) of The Inter-jurisdictional Support Orders Act is amended

(a) in the part before clause (a), by striking out "Part II 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 "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

The Judgments Act

C.C.S.M. c. J10 amended

116(1)

The Judgments Act is amended by this section.

116(2)

Subsection 9(1) is amended

(a) in the section heading of the English version, by striking out "alimony" and substituting "support"; and

(b) by adding "support," before "alimony".

116(3)

Section 20 is amended, in the part before clause (a), by adding "support," before "alimony".

116(4)

Subsection 21(1) is amended

(a) in the part before clause (a), by adding "support," before "alimony"; and

(b) in clause (c),

(i) 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

(ii) by striking out "under The Family Maintenance Act" and substituting "under The Family Law Act".

116(5)

Clause 21(2)(b) is amended by adding "support," before "alimony" wherever it occurs.

116(6)

Subsection 21(4) is amended, in the part before clause (a), by adding "support," before "alimony".

The Legal Aid Manitoba Act

C.C.S.M. c. L105 amended

117

Clause 17.2(1)(a) of The Legal Aid Manitoba Act is amended by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

The Parental Responsibility Act

C.C.S.M. c. P8 amended

118

Section 1 of The Parental Responsibility Act is amended by replacing the definition "parent" with the following:

"parent" means

(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,

(b) in a case where an adoptive parent is responsible for the care and control of a child, the adoptive parent of the child,

(c) in a case where a court of competent jurisdiction has appointed a person as guardian of the person of a child, the guardian of the child, or

(d) in a case where a person who stands in the place of a parent has parental responsibilities under a parenting order under Part 3 of The Family Law Act and is responsible for the care and control of a child, that person,

but does not include the director or an agency who or which is responsible pursuant to any Act or arrangement for the care or supervision of a child; (« parent »)

The Manitoba Public Insurance
Corporation Act

C.C.S.M. c. P215 amended

119

Subsection 70(1) of The Manitoba Public Insurance Corporation Act is amended in the definitions "child of a victim" and "parent of a victim" by striking out "Part II of The Family Maintenance Act" and substituting "Part 2 of The Family Law Act".

The Public Schools Act

C.C.S.M. c. P250 amended

120

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 Vital Statistics Act

C.C.S.M. c. V60 amended

121(1)

The Vital Statistics Act is amended by this section.

121(2)

Subsection 3(14) is replaced with the following:

Amending registration after Manitoba declaratory order

3(14)

On receiving a statement respecting a declaratory order of parentage made under Part 2 of The Family Law Act or a predecessor Act that relates to a child born in Manitoba, the director shall, subject to subsection (18), 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 Canadian order — when court recognition not required

3(15)

On receiving a certified copy of an extra-provincial declaratory order of parentage made in Canada that relates to a child born in Manitoba, the director shall amend the birth registration according to the declaratory order, unless the director determines that the circumstances require a court order under section 31 of The Family Law Act. 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 Canadian order — when court recognition required

3(16)

On receiving an extra-provincial declaratory order of parentage made in Canada that relates to a child born in Manitoba, together with the Manitoba order recognizing that order, the director shall, subject to subsection (18), 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.

Amending registration after order made outside Canada

3(17)

On receiving a certified copy of a declaratory order of parentage made outside Canada that relates to a child born in Manitoba, together with

(a) a certified copy of a Manitoba court order recognizing the declaratory order under section 32 of The Family Law Act;

(b) a sworn statement by a lawyer or public official in the extra-provincial jurisdiction as to the effect of the extra-provincial declaratory order as set out in clause 32(1)(c) of The Family Law Act;

(c) any translations required by subsection 32(2) of The Family Law Act; and

(d) any other evidence required by the director;

the director shall 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

3(18)

Despite subsections (14) to (17), 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

3(19)

When the director receives a written acknowledgment of parentage referred to in item 5 of subsection 19(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.

The Youth Drug Stabilization
(Support for Parents) Act

C.C.S.M. c. Y50 amended

122

The definition "parent" in section 1 of The Youth Drug Stabilization (Support for Parents) Act is amended by replacing clause (a) with the following:

(a) a parent under Part 2 of The Family Law Act or an adoptive parent; or

The Family Dispute Resolution (Pilot Project) Act

S.M. 2019, c. 8, Schedule A (unproclaimed Act amended)

123(1)

The Family Dispute Resolution (Pilot Project) Act is amended by this section.

123(2)

Subsection 3(2) is amended

(a) by replacing clause (a) with the following:

(a) a dispute about parenting arrangements, contact or support for which an application may be made under The Family Law Act;

(b) in clause (b), by striking out "The Family Maintenance Act" and substituting "The Family Law Act".

123(3)

Subsection 25(1) is amended by striking out "The Family Maintenance Act" and substituting "The Family Law Act".

PART 10

REPEAL, C.C.S.M. REFERENCE AND
COMING INTO FORCE

Repeal

124

The Family Maintenance Act, R.S.M. 1987, c. F20, except Part VI, is repealed.

C.C.S.M. reference

125

This Act may be referred to as chapter F20 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

126

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


SCHEDULE B

THE FAMILY SUPPORT
ENFORCEMENT ACT

TABLE OF CONTENTS

Section

PART 1
INTRODUCTORY PROVISIONS

1    Definitions

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

7    Not compellable in civil proceeding

PART 3
ENFORCEMENT OF SUPPORT ORDERS

APPLICATION OF ENFORCEMENT PROVISIONS

8    Application of enforcement provisions

9    Filing of separation or other agreement

10    Conflict between support order and family arbitration support award

11    Support recipient to provide registration documents

12    Opting in or out of enforcement provisions

13    Assignment of support orders

14    Court may apply enforcement provisions to other orders

CHANGING SUPPORT OBLIGATIONS BY AGREEMENT

15    Agreement to change support obligations

PAYMENTS TO DIRECTOR AND SUPPORT RECIPIENT

16    Support payor to remit payments to director

17    Director to maintain records

18    Director to record payment and pay support recipient

SUSPENDING ENFORCEMENT

19    Administrative suspension by director

20    Support recipient may request review

21    Director must review if new information available

22    Entitlement to information

23    Suspension by court

24    Enforcement actions not affected by court suspension

25    Transitional

CEASING OR REFUSING ENFORCEMENT

26    Director may refuse to enforce support order

27    Director may cease to enforce

28    Support recipient to notify of change in child status

29    Eligibility review re support for adult children

30    Information re eligibility of adult child

31    Ceasing enforcement ifadult child ineligible

32    Director may enforce reduced support

33    Reduced support according to table

34    Notice to Director of Assistance

35    Enforcement of foreign order

ENFORCEMENT ACTIONS

36    Director to determine default and take action

37    Penalty for default

38    Support recipient may opt out re penalties

39    Director may cancel penalty

40    Various enforcement actions

41    Director may request information

42    Information that may be disclosed

43    Definitions

44    Director may issue support deduction notice

45    Binding effect of support deduction notice

46    Priority of support deduction notice

47    SDN payor's obligations

48    Order to enforce payment

49    Order to determine interests or issues

50    Portion of wages and pension benefits exempt

51    Deemed garnishment for purposes of federal Acts

52    Suspension or cancellation of licence or permit and vehicle registration

53    Order to preserve payor's assets

54    Lien for arrears and ongoing support payments

55    Registration and priority of lien

56    Notice of lien registration

57    Registration in land titles office

58    Court order appointing receiver

59    Court order attaching assets

60    Definitions

61    Enforcement actions re lottery prize

62    Designation of lottery officials

63    Lottery corporation's obligations

64    Protection from liability

65    Interpretation — support payor in default

66    Examination of support payor by director

67    Hearing before judge or master

68    Effect of imprisonment

69    Appeal from master to Q.B. judge

70    Judge or master may proceed with hearing or issue warrant

71    Arrest and release of support payor

72    Appeal of detention order

ENFORCEMENT OF COURT COSTS

73    Court costs may be enforced

TRANSITIONAL

74    Transition — continuation of enforcement

PART 4
MISCELLANEOUS PROVISIONS

75    Action required by court order

76    Rights are additional

77    Support recipient may apply for appointment of receiver

78    No limitation period

79    Death of support payor

80    Director may interpret orders

81    Offsetting child support if two support payors

82    Adjustment of instalments

83    Computer printout as evidence

84    No interest payable by government

85    Money received for support recipient not attachable

86    Support payor may be charged fees

87    Offences

88    Regulations

PART 5
CONDITIONAL AND CONSEQUENTIAL AMENDMENTS

89    Conditional amendments

90-103    Consequential amendments

PART 6
REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE

104    Repeal

105    C.C.S.M. reference

106    Coming into force


THE FAMILY SUPPORT ENFORCEMENT ACT

PART 1

INTRODUCTORY PROVISIONS

Definitions

1

The following definitions apply in this Act.

"administrative suspension" means an administrative suspension made under section 19. (« suspension administrative »)

"approved form" means a form approved by the director. (« formulaire approuvé »)

"child support guidelines" means

(a) the child support guidelines established by regulation under The Family Law Act or The Family Maintenance Act (now repealed); or

(b) the Federal Child Support Guidelines under the Divorce Act (Canada);

whichever guidelines apply. (« lignes directrices sur les pensions alimentaires pour enfants »)

"child support service" has the same meaning as in The Child Support Service Act. (« service des aliments pour enfants »)

"court" means the Court of Queen's Bench or the Provincial Court, unless the context otherwise requires. (« tribunal »)

"default" means a failure by a support payor to make a payment as required by a support order or this Act. (« être en défaut »)

"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 d'exécution »)

"entity" means a group or organization, however structured, and includes a partnership, a corporation, an unincorporated association and a sole proprietorship. (« entité »)

"family arbitration support award" means a family arbitration award under The Arbitration Act that includes child support, spousal support or common-law partner support. (« sentence arbitrale familiale accordant des aliments »)

"former Act" means The Family Maintenance Act (now repealed). (« 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 »)

"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 »)

"minister" means the minister appointed by the Lieutenat Governor in Council to administer this Act. (« ministre »)

"prescribed" means prescribed by regulation. (Version anglaise seulement)

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

"regulation" means a regulation made under this Act. (« règlement »)

"support" means financial support. It includes maintenance, alimony, an alimentary pension and a compensatory payment ordered under section 77 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) a decision of the child support service;

(c) a recalculated child support order made under section 39.1 of the former Act;

(d) a support order as defined in The Inter-jurisdictional Support Orders Act that has been registered as an extra-provincial order or a foreign order under Part 2 of that Act;

(e) 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;

(f) a decision of a child support service in another province or a territory that calculates child support under section 25.01 of the Divorce Act (Canada) or recalculates child support under section 25.1 of that Act;

(g) a decision of a designated jurisdiction as defined in the Divorce Act (Canada) that has the effect of varying a support order made by a court under that Act which has been registered and recognized in accordance with section 19.1 of that Act;

(h) the support provisions of a separation agreement or other agreement filed with the director under section 9 of this Act or with the designated officer under section 53 of the former Act;

(i) an order to which the enforcement provisions have been made applicable by a court under section 14;

(j) an agreement under section 15 (agreement to change support obligations); and

(k) a family arbitration support award. (« ordonnance alimentaire »)

"support payor" means a person required to make payments under a support order. (« débiteur alimentaire »)

"support recipient" means a person entitled to receive payments under a support order and includes

(a) the Director of Assistance, or a person acting under their authority, in relation to support payments assigned to the Director of Assistance;

(b) a government or agency referred to in section 39 of The Inter-jurisdictional Support Orders Act;

(c) a minister, member or agency to whom a support order is assigned under section 20.1 of the Divorce Act (Canada); and

(d) 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. (« créancier alimentaire »)

Act binds the Crown

2

This Act binds the Crown.

Application to existing and future orders and agreements

3

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

Designation of director

4(1)

The minister must designate a person as the director for the purposes of this Act.

Director's mandate

4(2)

The director's general mandate is to monitor, record and enforce payments under support orders in accordance with this Act and the regulations.

Director may delegate

5(1)

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.

References to director

5(2)

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.

Protection from liability

6

An action or proceeding must not 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.

Not compellable in civil proceeding

7

The director or any person acting under the director's authority is not compellable as a witness in a civil action or other proceeding to which the director or person is not a party respecting any document or information obtained, received or made under this Act or the regulations, and may not be compelled to produce such documents.

PART 3

ENFORCEMENT OF SUPPORT ORDERS

APPLICATION OF ENFORCEMENT PROVISIONS

Application of enforcement provisions

8(1)

Except as otherwise provided in or under this Act, the enforcement provisions apply to

(a) a support order made after 1979, unless the support recipient 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 support recipient has opted into enforcement under the former Act or this Act and has not opted out.

When enforcement may be commenced

8(2)

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 required 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 required to commence enforcement;

(c) in the case of a decision made by the child support service, when the director has received

(i) a copy of the decision made by the child support service, and

(ii) the registration information required to commence enforcement;

(d) 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 required to commence enforcement;

(e) in the case of a support order consisting of the support provisions of an agreement filed with the director under section 9, when the director has received the registration information required to commence enforcement and the director registers the agreement in a court;

(f) 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;

(g) in the case of an order to which the enforcement provisions have been made applicable by a court under section 14, when the director has received

(i) a copy of the order,

(ii) a copy of the court's order under section 14, signed by the court, and

(iii) the registration information required to commence enforcement;

(h) in the case of a family arbitration support award, when the director has received a copy of the award and the registration information required to commence enforcement and either of the following occurs:

(i) the director receives proof that the award has been registered with a court,

(ii) the director registers the award with a court;

(i) in the case of any other support order, or any support order in relation to which the support recipient has opted out of the enforcement provisions, when

(i) the support recipient opts in under section 12, and

(ii) the director has received the registration information required to commence enforcement.

Notice of enforcement by director

8(3)

Subject to the regulations, before commencing the enforcement of a support order, the director must notify the support payor and the support recipient that the support order will be enforced by the director.

Agreement may be filed

9(1)

Either party to a separation agreement or other agreement to which Manitoba law (other than The Inter-jurisdictional Support Orders Act) applies may file the agreement with the director only 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 with the director.

Director to register agreement in court

9(2)

The director must register the agreement in a court as soon as possible after it is filed.

Conflict between support order and agreement

9(3)

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.

Conflict between support order and family arbitration support award

10(1)

For the purpose of applying the enforcement provisions, if a family arbitration support award conflicts with a support order made by a court, the support order prevails.

Exception re family arbitration support award

10(2)

As an exception to subsection (1), the director must cease enforcing a support order made by a court and enforce a family arbitration support award if the following conditions are met:

1.

The support order was made before the family arbitration support award.

2.

The family arbitration support award relates to the same support recipient and support payor as the support order.

3.

The family arbitration support award includes a provision that the support recipient and the support payor agree that the terms of the award will be enforceable by the director instead of the terms of the support order.

4.

The family arbitration award is registered with the court in accordance with subsection 49(9) of The Arbitration Act.

Ceasing enforcement of family arbitration support award

10(3)

The director must cease enforcing a family arbitration support award under subsection (2) if a court makes an order that has the effect of varying the prior support order or varying the support provisions of the family arbitration support award. The director must then enforce the court order.

Support recipient to provide registration documents

11(1)

At the director's request, a support recipient must file completed registration documents, in an approved form, with the director within the prescribed period.

Support recipient deemed to opt out

11(2)

A support recipient who does not file completed registration documents as required is deemed to have opted out of the enforcement provisions.

Support recipient may opt in

12(1)

If the enforcement provisions do not apply to a support order, the support recipient may opt in to 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.

Support recipient may opt out

12(2)

Subject to section 13, the support recipient 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. The enforcement provisions cease to apply to the order on the day the statement is filed.

Notice to support payor

12(3)

When the support recipient opts in to or out of the enforcement provisions, the director must notify the support payor that the enforcement provisions apply, or that they no longer apply, as the case may be, to the support order.

Fee for opting in

12(4)

The director may charge the support recipient a fee, in accordance with the regulations, for a statement filed under subsection (1).

Assignment of support orders

13

If a support recipient is an income assistance recipient, a support order may be assigned to the Director of Assistance and when assigned, the Director of Assistance is entitled to receive the payments due under the support order.

Court may apply enforcement provisions to other orders

14

In addition to the orders set out in 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.

CHANGING SUPPORT OBLIGATIONS BY AGREEMENT

Agreement to change support obligations

15(1)

For the purpose of enforcement under this Act, the support payor and the support recipient may, by an agreement that complies with this section, change prospective support obligations under a support order (the "prior support order") even if the support order was made by a court.

Form and content of agreement

15(2)

The agreement must be in an approved form and must set out the following:

(a) the names of the support payor and the support recipient;

(b) the prior support order being changed and its date;

(c) the income of the support payor;

(d) the income of the support recipient if required by the director;

(e) a description of the changes being made, including the commencement date of the changes, any new support amount, any changed frequency in required payments and any other details necessary for enforcement;

(f) a statement that the agreement may be filed with the director for enforcement.

Agreement to be filed with director

15(3)

Either party to the agreement may file the agreement with the director. The director must provide a copy of the agreement to the court and the child support service as soon as practicable after the agreement is filed.

Termination of agreement

15(4)

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 director, who may resume enforcement of the prior support order.

Notice to court and the child support service

15(5)

The director must give notice of a termination under subsection (4) to the court and the child support service.

No agreement if order assigned

15(6)

An agreement must not be made under this section if the support recipient is not entitled to receive payments under the prior support order because of an assignment under section 13 or any other applicable law.

PAYMENTS TO DIRECTOR AND SUPPORT RECIPIENT

Support payor to remit support payments to director

16(1)

While the enforcement provisions apply to a support order, the support payor must remit each payment under the order to the director in the prescribed manner.

Director may specify manner of payment

16(2)

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 a payment to be remitted in the manner specified by the director.

Excess cash remittance

16(3)

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 future amounts payable by the support payor.

Director to maintain records

17

The director must maintain records to enable the occurrence of a default under a support order to be determined promptly.

Director to record payment and pay support recipient

18(1)

Upon receipt of an amount from a support payor or from another person on a support payor's behalf, 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 support recipient.

Restrictions on paying support recipient

18(2)

The director is not required to issue a payment to the support recipient

(a) in an amount less than $25;

(b) before the support recipient has filed completed registration documents with the director;

(c) before the payment received by the director has been cleared by the financial institution of the support payor or the financial institution of the person who made the payment on the support payor's behalf;

(d) if no amount is currently due and owing to the support recipient; or

(e) if the support recipient cannot be located, after reasonable attempts have been made to locate them.

Payments to support recipient outside Canada

18(3)

In the case of a payment to a support recipient who is located outside Canada, the director may

(a) determine the most efficient way to issue a payment, including issuing a payment on a different schedule than the one set out in the support order; and

(b) if the support recipient agrees in writing, deduct the costs of issuing the payment from the amount payable.

Return payment to support payor if support recipient cannot be located

18(4)

If the director is unable to issue a payment to a support recipient because the support recipient cannot be located after the director has made reasonable attempts to locate the support recipient, the director may return the payment to the support payor.

Transfer to Consolidated Fund

18(5)

If a payment made to the director under the authority of this Act has not been paid to a support recipient or has not been returned to a support payor within five years after having been received, the director may transfer the payment out of the government's trust account for payments received by the director into the Consolidated Fund, and the amount transferred is to be treated as ordinary revenue of the government.

Recovery

18(6)

If a support recipient or support payor establishes that they have a legal claim to a payment transferred to the Consolidated Fund under subsection (5), the minister must pay the amount transferred to the support recipient or support payor from and out of the Consolidated Fund without further or other authority than this Act.

SUSPENDING ENFORCEMENT

Administrative suspension

19(1)

At the request of the support payor, the director may administratively suspend, in whole or in part, enforcement of a support order if the support payor provides information in writing that satisfies the director that the support payor's circumstances warrant the suspension.

Six-month maximum

19(2)

An administrative suspension may be made for a period of not more than six months and may be made subject to any conditions that the director considers appropriate.

Further requests

19(3)

More than one administrative suspension may be made under this section at the request of the support payor.

Notice of administrative suspension

19(4)

If the director grants a request for an administrative suspension, the director must notify the support payor, the support recipient and the court in writing of the administrative suspension and the reasons for it.

Notice of denial of administrative suspension

19(5)

If the director denies a request for an administrative suspension, the director must notify the support payor and the court in writing of the denial and the reasons for it.

End of suspension

19(6)

An administrative suspension ends, and the director may proceed to enforce the support order, immediately after

(a) the last day of the suspension period; or

(b) the support payor fails to comply with a payment or other condition imposed by the suspension;

whichever occurs first.

Notice of failure to comply

19(7)

If an administrative suspension ends because the support payor failed to comply with a payment or other condition imposed by the suspension, the director must inform the support payor, the support recipient and the court in writing as soon as practicable.

Obligation to seek administrative suspension

19(8)

A support payor must request an administrative suspension before applying for a suspension order under section 23.

Support recipient may request review

20(1)

On receiving notice of an administrative suspension under subsection 19(4), the support recipient may request in writing that the director review the administrative suspension and may provide the director with additional written information.

Director may cancel, modify or confirm suspension

20(2)

After reviewing the administrative suspension and any additional written information provided by the support recipient, the director may cancel, modify or confirm the administrative suspension.

Notice of modification or cancellation

20(3)

If an administrative suspension is modified or cancelled, the director must notify the support payor, the support recipient and the court in writing of the modification or cancellation and the reasons for it.

Notice of confirmation

20(4)

If an administrative suspension is confirmed, the director must notify the support recipient of the confirmation.

Director must review if new information available

21(1)

If the director receives information relevant to an administrative suspension that was not available at the time the administrative suspension was made, the director must review the administrative suspension and the new information and may cancel, modify or confirm the administrative suspension.

Notice of modification or cancellation

21(2)

If an administrative suspension is modified or cancelled, the director must notify the support payor, the support recipient and the court in writing of the modification or cancellation and the reasons for it.

Entitlement to information

22

Despite section 42, the support payor and the support recipient are entitled to information under sections 19, 20 and 21 in accordance with the following rules:

1.

A support payor or support recipient is entitled to information only if an administrative suspension has been made by the director.

2.

The support recipient is, on request, entitled to a copy of any written information provided by the support payor.

3.

The support payor is, on request, entitled to a copy of any written information provided by the support recipient.

4.

Neither the support payor nor the support recipient is entitled to a copy of information provided by a third party.

5.

The director may remove any contact, identifying or sensitive information prior to providing a copy of information to the support payor or support recipient.

Suspension of enforcement by court

23(1)

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.

Support payor may apply for suspension order

23(2)

A support payor 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 24, 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.

Service of application

23(3)

The support payor must serve the application, in accordance with the Queen's Bench Rules, on

(a) the support recipient;

(b) the Director of Assistance; and

(c) the director if the support recipient resides or is located outside Manitoba.

Criteria for initial suspension order

23(4)

The court may make a suspension order in response to the application only if the support payor establishes

(a) a valid reason for not paying the amounts owing under the support order; and

(b) that the support payor

(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 plan with the director, after making reasonable efforts to do so.

Period and conditions of suspension order

23(5)

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.

Suspension may be extended

23(6)

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 support payor 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 support payor has applied to the court for the extension and served the application in accordance with subsection (3).

Period and conditions of extension

23(7)

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 support payor

23(8)

If a support payor 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 support payor applied to the court for the further extension and served the application in accordance with subsection (3); and

(b) the support payor establishes that

(i) they have 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 support payor will result if enforcement by the director is not suspended for a longer period.

Period and conditions of further extension

23(9)

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.

End of suspension

23(10)

Despite the provisions of a suspension order, 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 support payor 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

24(1)

Unless the court orders otherwise, a suspension order under section 23 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 53;

(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;

(f) the provision of information indicating that the support payor is in default under the support order to a personal reporting agency as defined in The Personal Investigations Act.

Effect on existing support deduction notice or garnishing order

24(2)

If

(a) a support deduction notice under section 44 or a garnishing order for support was issued before the enforcement of the support order was suspended by an order under section 23; and

(b) the court required the support payor 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

24(3)

Unless the court orders otherwise, a suspension order under section 23 does not affect

(a) the payment to the support recipient 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 86.

Effect on garnishment of pension benefit credits or PRPP funds

24(4)

Despite any provision to the contrary, a suspension order made under section 23 does not affect a garnishing order served under section 14.1 of The Garnishment Act if the garnishing order is served before the suspension order is made.

Court may order proceeds held

24(5)

As an exception to subsection (4), a suspension order may require the director to hold the proceeds of the garnishing order and not pay them out while the suspension order is in effect.

Transitional provision

25(1)

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, the order continues as if it were a suspension order made under section 23 in respect of enforcement under this Act.

Suspension order made before Dec. 3, 2011

25(2)

If an order suspending enforcement was pronounced before December 3, 2011, the support recipient may apply to the court for an order terminating that order.

CEASING OR REFUSING ENFORCEMENT

Director may refuse to enforce support order

26

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.

Director may cease to enforce

27(1)

Subject to section 34, the director may cease enforcement of a support order if the support recipient fails to provide information or a statutory declaration as required by subsection 41(1) or by an order made under subsection 41(5).

Ceasing enforcement when support recipient cannot be located

27(2)

The director may cease enforcement of a support order if, after making reasonable attempts, the director is unable to locate the support recipient to

(a) issue payment; or

(b) confirm the requirement for continued enforcement of support or arrears.

Support recipient to notify of change in child status

28

A support recipient who has reason to believe that the director is enforcing a support obligation for an adult child when that obligation is no longer eligible for enforcement must immediately notify the director of that fact.

Eligibility review re support for adult children

29(1)

The director may conduct periodic reviews to determine whether an obligation under a support order to pay support for an adult child remains eligible for enforcement.

Considerations

29(2)

In making a determination under subsection (1), the director 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 adult child 24 years of age or older

29(3)

The director must apply a presumption that a support obligation for a child who is 24 years of age or older is not eligible for enforcement unless the support order clearly states that support is to continue to be enforced after the age of 24. For this purpose, a statement in the order to the effect that support is payable until further order of the court is not sufficient to rebut the presumption.

Onus re adult child 24 years and older

29(4)

The support recipient has an onus to prove that a support obligation for a child who is 24 years of age or older remains eligible for enforcement.

When support recipient may be asked for information

30(1)

The director may request the support recipient to provide information to the director sufficient to allow the director to determine whether a support obligation for an adult child remains eligible for enforcement under section 29. The director may request the information from the support recipient when requested to do so by the support payor, but the director may refuse if the frequency of requests for information by the support payor is unreasonable.

When no request for information may be made

30(2)

The director must not request information under subsection (1) if the support order specifies a date on which support for an adult child will terminate.

Support payor to provide information

30(3)

When the support payor has asked the director to request information from the support recipient, the support payor must provide to the director any information, along with supporting documentation, that the support payor has relating to whether the support obligation for the adult child remains eligible for enforcement.

Support recipient's response

30(4)

The support recipient must provide the information requested by the director under subsection (1), along with any supporting documentation, within the time period required by the director.

Entitlement to information

30(5)

Despite section 42 (information that may be disclosed), both the support recipient and the support payor are entitled to a copy of any information the other has provided to the director for the purposes of this section or section 31, but the director may remove any contact or other identifying information from a copy that is provided.

Ceasing enforcement if adult child ineligible

31(1)

If, based on the support recipient's response under subsection 30(4), the director is not satisfied that the support obligation for the adult child remains eligible for enforcement — or if the support recipient fails to respond — the director must cease to enforce the support obligation for that child as of a date determined by the director.

Notice of decision

31(2)

The director must promptly notify the support recipient and the support payor in writing of a decision to continue or cease enforcement and the reason for it.

Director may resume enforcement

31(3)

If the director has ceased enforcement under this section and the support recipient subsequently provides information that satisfies the director that the support obligation for the adult child remains eligible for enforcement, or that it has been re-activated, the director may resume enforcement. But the director must not enforce support payments (other than arrears) due more than 60 days before the date the support recipient provided the required information.

Exception

31(4)

Despite subsection (3), the director may enforce support payments due more than 60 days before the date the support recipient provides the required information if the director determines that extenuating circumstances exist.

Resumption of enforcement for adult child after child support service decision

31(5)

If

(a) the child support service has ceased recalculation of support for an adult child under clause 5(5)(a) of The Child Support Service Act; and

(b) the director subsequently determines it appropriate to resume enforcement under subsection (3);

the director may — using the support payor's and, if applicable, the support recipient's, most recent determination of income contained in a support order — resume enforcement in the amount that would have been payable under the child support guidelines had the adult child been included in the recalculation decision made by the child support service under subsection 5(5) of The Child Support Service Act. The director must not make any adjustments to the amount of special or extraordinary expenses set out in that recalculation decision.

Director to notify child support service

31(6)

The director must notify the child support service if the director has resumed enforcement for an adult child under subsection (5).

Support recipient or support payor may apply to court

31(7)

A support recipient or support payor who disagrees with a decision of the director under this section may apply to a court for a determination as to whether an adult child is entitled to support.

Director may enforce reduced support

32

Subject to section 34, 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 31, 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

33

Subject to section 34, 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 31;

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.

Notice to Director of Assistance

34

If the support receivable under a support order has been assigned to the Director of Assistance, the director must notify the Director of Assistance of

(a) a request for information made to a support recipient under subsection 30(1); or

(b) a decision to cease enforcing the support order or to reduce the amount of support being enforced under the order.

When this section applies — support order filed in reciprocating jurisdiction

35(1)

This section applies when the director has taken steps under clause 40(m) 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

35(2)

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 each of the following conditions are met:

(a) the foreign order relates to the same support recipient and support payor 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

35(3)

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 support payor resides, or until a further order is made.

Arrears if director resumes enforcement of prior order

35(4)

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.

When support has been assigned to Director of Assistance

35(5)

When support receivable under the prior support order has been assigned to the Director of Assistance, the assignment is deemed to apply to support receivable under the foreign order being enforced under this section.

Court application if party objects

35(6)

A support payor or support recipient who objects to any action taken by the director under this section may apply to a court, on notice to the director, for an order respecting the enforcement of the prior support order or the foreign order.

ENFORCEMENT ACTIONS

Director to determine whether support payor is in default

36(1)

If it appears to the director that a support payor is in default under a support order to which the enforcement provisions apply, the director must take any action as the director considers necessary or advisable to determine whether the support payor is in default.

Director to take action on default

36(2)

If satisfied that the support payor is in default, the director must

(a) determine the amount in default;

(b) assess a penalty under section 37; and

(c) take any other action under this Act or any other law as the director considers necessary or advisable to enforce payment of the amount in default.

Payment plan

36(3)

Whether or not any enforcement actions have been taken or could be taken, if the director is satisfied that a support payor is in default, the director may enter into a payment plan with the support payor with respect to the amount in default and any penalty assessed under section 37.

Requirement to provide information

36(4)

Before entering into a payment plan, the director may require the support payor to provide any financial or other information which the director deems necessary.

Arrears due if support payor defaults

36(5)

If the support payor fails to make a payment when it is due under a payment plan, the full amount of the arrears becomes immediately due and payable.

Penalty for default

37(1)

If a support payor

(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 support payor in accordance with the regulations.

Penalty a debt owing

37(2)

The penalty is a debt that the support payor owes to the support recipient.

Director may enforce payment of penalty

37(3)

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) notifying the support payor under section 52 of possible action under The Highway Traffic Act;

(b) issuing a notice to appear under section 66; or

(c) issuing a summons under section 67.

Support recipient may opt out re penalties

38(1)

At the time a support order is registered for enforcement, or at any subsequent time, the support recipient may opt out of the assessment of penalties. The support recipient may subsequently opt back in by notifying the director in writing.

Waiver of penalties

38(2)

The support recipient may waive the right to receive penalties already assessed, in whole or in part, by notifying the director in writing.

Deemed waiver

38(3)

A support recipient is deemed to waive the right to receive penalties already assessed if

(a) the support recipient is deemed to have opted out of enforcement under subsection 11(2);

(b) the support recipient opts out of enforcement under subsection 12(2);

(c) the director ceases to enforce the support order under section 27; or

(d) the director ceases to enforce the support order under a prescribed circumstance.

Effect of opting out or waiver

38(4)

A support recipient who has opted out of the assessment of penalties, or who has waived or has been deemed to have 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.

Director may cancel penalty

39(1)

The director may cancel a penalty, in whole or in part, in any of the following circumstances:

(a) when the director is satisfied that the penalty cannot be collected;

(b) when the amount of the penalty owing is less than the prescribed amount and the support payor

(i) is not in default under a support order, and

(ii) is not required to make periodic payments of support that are to be enforced by the director;

(c) when the support payor does not reside in Manitoba and the support order is registered for the purpose of enforcement in another province, territory or reciprocating jurisdiction;

(d) when the support recipient does not reside in Manitoba and the support 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 support 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 support recipient has waived receipt of penalties under subsection 38(2) or has been deemed to have waived receipt under subsection 38(3).

Court may cancel penalty

39(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 support payor in arrears or their estate, it would be grossly unfair or inequitable not to do so; and

(b) having regard to the interests of the support recipient to whom arrears are owed or their estate, the cancellation is fair and equitable.

Various enforcement actions

40

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 44 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 52,

(i) notify the support payor that action may be taken under section 273.1 of The Highway Traffic Act, or

(ii) issue a request for action to be taken under section 273.2 of The Highway Traffic Act;

(d) apply under section 53 for a court order to preserve assets;

(e) register a lien in the Personal Property Registry under section 55;

(f) register the support order in a land titles office under section 57 and take any action that may be taken under The Judgments Act to enforce the registered order;

(g) take steps to obtain a writ of execution under The Executions Act;

(h) apply under section 58 for the appointment of a receiver to take action as permitted by that section;

(i) apply under section 59 for an order declaring assets over which the support payor exercises authority subject to attachment and execution;

(j) issue a notice under section 66 requiring the support payor to appear before the director;

(k) issue a summons under section 67 requiring the support payor to appear before a judge or master for a hearing under that section;

(l) provide a personal reporting agency, as defined in The Personal Investigations Act, with information indicating that the support payor is in default under the support order but, despite clause 4(e) of that Act, without providing the address of the support recipient;

(m) take steps to have the support order enforced in another jurisdiction;

(n) take any steps that may be taken under a federal law to enforce payments under a support order.

Information about Support Payor
or Support Recipient

Director may request information from support payor or support recipient

41(1)

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 support payor or support recipient, or both of them,

(a) to provide, in writing, all information within their 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 the declaration to the director.

Director may request information from others

41(2)

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 support recipient's whereabouts;

(b) a support payor, including

(i) the support payor's whereabouts,

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

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

(iv) the support payor'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 support payor's pension and pension benefit credits, as defined in subsection 1(1) of The Pension Benefits Act,

(vi) a PRPP account of the support payor, as defined in The Pooled Registered Pension Plans (Manitoba) Act,

(vii) the support payor's income tax returns and assessment notices,

(viii) the support payor's social insurance number,

(ix) circumstances that affect or could affect the amount paid under the support order,

(x) the extent of the support payor'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 support payor and a person referred to in paragraph (A) or (B), and

(xi) any benefits the support payor 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 designated authority under the Divorce Act (Canada) for the purpose of exercising a power or performing a duty or function under sections 18 to 19.1 of that Act.

Requirement to provide information

41(3)

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 has been served.

Failure to comply

41(4)

If a person, the government or another entity fails to comply with subsection (3), the director may take such action as the director considers necessary or advisable, including

(a) applying for an order under subsection (5);

(b) issuing a notice requiring the support payor to appear before the director under section 66; or

(c) issuing a summons requiring the support payor to appear before a judge or master for a hearing under section 67.

Order to provide information

41(5)

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 make a statutory declaration containing the requested information.

Access to information or databanks

41(6)

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 measures to protect information against such risks as unauthorized access, use, disclosure and destruction.

Information to child support service

41(7)

The director may enter into an arrangement with the child support service that enables the service to access information contained in the director's records for the purpose of assisting the service in carrying out its powers and duties under The Child Support Service Act. The arrangement must include reasonable security measures to protect information against such risks as unauthorized access, use, disclosure and destruction of the information.

Information that may be disclosed

42

Information received by the director under this Act is confidential, but the director may

(a) use the information to enforce a support order;

(b) give the information to the child support service for the purpose of assisting it in carrying out its powers and duties;

(c) for the purpose of enforcing a support order, give the information to an appropriate authority in another province, territory or other reciprocating jurisdiction, as defined in The Inter-jurisdictional Support Orders Act;

(d) give information about a support recipient's or support payor's whereabouts and the name and address of a support payor'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, and

(ii) the designated authority under the Divorce Act (Canada) for the purpose of exercising a power or performing a duty or function under sections 18 to 19.1 of that Act;

(e) 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 the designated authority under that Act;

(f) advise the support recipient of the name of another jurisdiction in which the support order is being enforced at the director's request if the director determines it appropriate to do so;

(g) advise the support payor of the name of another jurisdiction at whose request the director is enforcing a support order if the director determines it appropriate to do so; and

(h) disclose personal information about an individual to any person if

(i) the individual has identified the information and consented to its disclosure, and

(ii) the director determines that the disclosure is appropriate.

Support Deduction Notice (SDN)

Definitions

43

The following definitions apply in this section and sections 44 to 51.

"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. (« tiers saisi »)

"support deduction notice" means a notice issued under subsection 44(1). (« avis de retenue des aliments »)

"wages" includes salary, commission 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 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

44(1)

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 support payor to the director under this Act, amounts that are or become owing or otherwise payable by the SDN payor to the support payor. The support deduction notice may be in respect of arrears or periodic payments, or both.

Content of notice — arrears

44(2)

If the director seeks 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

44(3)

If the director seeks 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

44(4)

In prescribed circumstances, the director may adjust, suspend, reactivate or terminate a support deduction notice by giving written notice to the SDN payor. After doing so, the director must notify the support payor in writing of the change.

Duration of support deduction notice

44(5)

A support deduction notice remains in force until

(a) the notice is replaced by another support deduction notice;

(b) the director terminates the notice;

(c) the debt for which the notice was issued is satisfied; or

(d) if the notice applies to wages payable to the support payor, the SDN payor ceases to employ the support payor and no longer owes wages to the support payor.

SDN payor to notify director if employment ends

44(6)

If the support deduction notice binds wages of the support payor, the SDN payor must notify the director if the SDN payor ceases to employ the support payor while the support deduction notice remains in force.

Binding effect of support deduction notice

45(1)

When a support deduction notice is served on the SDN payor, the notice 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 support payor,

(ii) all money that, after the time of service, becomes owing or payable by the SDN payor to the support payor from time to time, and

(iii) all money that is or becomes owing or payable by the SDN payor to the support payor 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 support payor;

(b) all wages that are or become due and payable by the SDN payor to the support payor on or after the first day, other than a holiday, after the day of service; and

(c) the support payor'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 support payor and others jointly

45(2)

For the purpose of subsection (1),

(a) money that, at the time of service, is owing or payable by the SDN payor to the support payor and one or more other persons jointly is presumed to be owing or payable only to the support payor; and

(b) money that, at any time after the time of service, becomes owing or payable by the SDN payor to the support payor and one or more other persons jointly is presumed to become owing or payable at that time only to the support payor.

Priority of support deduction notice

46

A support deduction notice

(a) has the same priority as a garnishing order for support 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 support payor to the SDN payor.

SDN payor to notify support payor and others

47(1)

Upon being served with a support deduction notice, the SDN payor must promptly give a copy of the notice

(a) to the support payor; and

(b) if money is or becomes owing or payable by the SDN payor to the support payor 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

47(2)

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

47(3)

For as long as a support deduction notice remains in force, the SDN payor must remit the amount or amounts payable under the notice 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 support payor,

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 support payor,

whichever is later.

Payment discharges SDN payor's obligation

47(4)

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 support payor; and

(b) in the case of money owing to the support payor and one or more other persons jointly, the SDN payor's obligation to all of them.

SDN payor not to charge fees or costs

47(5)

Except as permitted by the regulations, a SDN payor must not charge the support payor any fee or cost for complying with this Act in relation to a support deduction notice.

Director may apply for order to enforce payment

48(1)

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.

Order to pay

48(2)

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

49(1)

The director, the SDN payor, the support payor 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 support payor's interest in money that is presumed by subsection 45(2) to be owing and payable to the support payor; and

(b) the rights and liabilities of the SDN payor, the support payor or any other interested person.

Burden of proof

49(2)

The burden of establishing that the support payor's interest in the money is less than the amount attached is on the person making the application.

Application deadline

49(3)

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

50(1)

If wages or pension benefits, or both, are attached by a support deduction notice, the total sum of $250 each 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

50(2)

If a support deduction notice attaching wages or pension benefits, or both, is 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.

Support payor may apply to registrar to vary exemption

50(3)

The support payor 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).

Limitation on variation

50(4)

An order under this section must not

(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 each month or any greater prescribed amount.

Support payor may appeal registrar's order

50(5)

The support payor 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

51

The provisions in this Act 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

Definition of "registrar"

52(1)

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

52(2)

If a support payor defaults in payment, the director may

(a) notify the support payor, in accordance with the regulations, that action will be taken under section 273.1 of The Highway Traffic Act without further notice to the support payor unless the support payor complies with this section; or

(b) request the registrar to take action under section 273.2 of The Highway Traffic Act without notice to the support payor.

Content of notice

52(3)

The notice under clause (2)(a) must advise that the action will be taken unless the support payor, within 30 days after the day the notice is served,

(a) pays the arrears in full; or

(b) proposes to the director a payment plan for the arrears that the director considers reasonable.

Suspension or cancellation of driver's licence and vehicle registration

52(4)

If the support payor, after being served with a notice under clause (2)(a),

(a) fails to respond to the notice within 30 days as set out in the notice; or

(b) fails to make a payment under a payment plan proposed by the support payor and accepted by the director;

the director may request the registrar to take action in respect of the support payor under section 273.1 of The Highway Traffic Act (suspension or cancellation of driver's licence or permit and vehicle registration).

Subsequent proposal for payment of arrears

52(5)

If, after the director makes a request under clause (2)(b) or subsection (4), the support payor 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

52(6)

If, after the director makes a request under clause (2)(b) or subsection (4),

(a) the support payor is no longer in default;

(b) the support payor is complying with a new payment plan proposed by the support payor and accepted by the director; or

(c) the support order is no longer being enforced by the director;

the support payor is deemed to be in compliance with this section and the director must notify the registrar of that compliance.

Deemed failure

52(7)

A failure by a support payor to make a payment under a plan proposed by the support payor and accepted by the director is deemed to be a failure to comply with this section.

Arrears due if support payor defaults

52(8)

If the support payor fails to make any payment when it is due under a plan accepted by the director, the full amount of the arrears becomes immediately due and payable.

Preservation Order

Director may apply for order to preserve assets

53(1)

If the director believes that a support payor is likely to evade, hinder or defeat the enforcement of a support order by wasting, dissipating or disposing of assets that the support payor owns, possesses or controls, the director may apply to the Court of Queen's Bench for an order preserving those assets.

Application without notice

53(2)

The application may be made without notice.

Preservation order

53(3)

The judge or master hearing the application may make one or more of the following orders if the judge or master finds that the support payor 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 support payor or any other person to preserve any assets that the support payor owns, possesses or controls;

(b) an order requiring the support payor 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 support payor and another person;

(d) any other order that the judge or master considers appropriate.

Lien on Personal Property

Lien for arrears and ongoing support payments

54(1)

For the purpose of enforcing a support order, the director has a lien on every estate or interest in the personal property of the support payor, including personal property acquired by the support payor after the order was made or after a payment under the order became due.

Extent of security

54(2)

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.

When lien takes effect

54(3)

The lien takes effect in relation to the support payor's personal property when the director registers a financing statement in the Personal Property Registry under section 55.

Priority not lost

54(4)

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.

Director may register lien

55(1)

If a support payor is in default under a support order, the director may register the lien created by section 54 against the support payor'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 support payor; and

(c) any other prescribed matter.

Effect of registration

55(2)

Upon registration of the lien,

(a) the director is deemed to be a secured party under The Personal Property Security Act and the support payor is deemed to be a debtor under that Act;

(b) the support payor is deemed to have signed a security agreement stating that a security interest is taken in all of the support payor'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 support payor 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.

Priority of lien

55(3)

The lien has priority over every security interest and every claim to or right in the personal property of the support payor 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 support payor obtained possession of the collateral or within 15 days after the support payor 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

55(4)

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 support payor of lien registration

56

Within 15 days after registering a financing statement under section 55, the director must serve a notice on the support payor stating

(a) that the director has a lien against the support payor's personal property with respect to a 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 support payor's personal property 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 support payor may obtain further information.

Registration Against Real Property

Registration in land titles office

57(1)

The director may register a support order in any Manitoba land titles office. Upon registration, the order is deemed to be an order to which sections 9 and 21 of The Judgments Act apply.

Judgments Act exemptions do not apply

57(2)

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

58(1)

If a support payor 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

58(2)

The judge or master hearing the application may make an order that appoints 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 support payor;

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

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

(d) take all steps necessary to pursue any action that is available to the support payor;

(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

58(3)

If a support payor 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 prior application.

Exemptions under Garnishment Act

58(4)

The wages of the support payor that may be collected by the 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 Support Payor

Director may apply for order attaching assets of corporation or other person

59(1)

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 support payor under a support order if

(a) the support payor is in default under the support order; and

(b) the director believes that the support payor is exercising authority over the assets of the corporation or other person.

Application without notice

59(2)

The application may be made without notice.

Court order

59(3)

If the judge hearing the application is satisfied that the support payor 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 support payor and directs that the assets or any specific portion of them be subject to garnishment, execution or an order of receivership under section 58, as the case may be, for the purpose 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

59(4)

For the purpose of this section, a support payor is deemed to be exercising authority over the 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 support payor, or another person on the support payor's 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 support payor, or another person on the support payor's behalf, is in a position to compel or otherwise influence the corporation or other person

(i) to use or otherwise deal with the assets as directed by the support payor or another person on the support payor's behalf, or

(ii) to permit the support payor, or another person on their 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

Definitions

60

The following definitions apply in this section and sections 61 to 64.

"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 officer of the lottery corporation designated under section 62. (« représentant de la Société »)

"lottery prize" means a prize in a lottery scheme that is a monetary prize of $1,001 or more, or a non-monetary prize having a fair market value of $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 »)

Enforcement actions re lottery prize

61

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 support payor, do one or more of the following:

(a) issue a support deduction notice under section 44;

(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

62

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 63.

Lottery corporation's response to claim for prize

63(1)

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 that is required in the regulations; and

(b) take possession of the lottery ticket.

Lottery official to search records

63(2)

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 support payor.

Director to allow searches of records

63(3)

The director must allow a lottery official to search the director's records of the names of support payors and other identifying information about support payors for the purpose of determining whether a Manitoba claimant is a support payor.

If claimant listed in records as a support payor

63(4)

If a search under subsection (2) indicates that the Manitoba claimant is a support payor, the lottery corporation must

(a) immediately notify the director, in writing and 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.

Substitution of lottery prize

63(5)

If a Manitoba claimant for a non-monetary prize is a support payor, the lottery corporation must substitute a monetary prize at the director's request.

Confidentiality

63(6)

An employee, officer or agent of the lottery corporation must not use or disclose any information provided or obtained from the director's records except for the purposes of this section.

Protection from liability

64

An action or a proceeding must not 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 62 or 63.

Court Proceedings Commenced by Summons

Interpretation — support payor in default

65

For the purposes of sections 66 and 67, a support payor is in default if the support payor

(a) is in arrears under a support order; or

(b) fails to provide information or a statutory declaration as required by subsection 41(1) or by an order made under subsection 41(5).

Examination of support payor by director

66(1)

The director may issue a notice to appear to a support payor requiring the support payor

(a) to appear before the director in person at the place stated in the notice to appear, or by telephone or other means acceptable to the director, at the time stated in the notice to appear, to be examined in respect of

(i) the support payor's default, and

(ii) the support payor's employment, income, assets and financial circumstances; and

(b) at or before the examination, to complete and file with the director a financial statement in a form satisfactory to the director, along with any other requested information.

Action by director

66(2)

At the conclusion of the examination, the director may do one or more of the following:

(a) refer the matter for enforcement;

(b) summon the support payor to appear for a hearing under section 67;

(c) if the support payor has proposed a payment plan that the director considers reasonable, require the support payor to make payments in accordance with the plan;

(d) adjourn the examination with or without conditions to allow

(i) the support payor to retain counsel,

(ii) the support payor to pay the arrears,

(iii) the support payor to file and serve an application for a variation of the support order and cancellation of the arrears,

(iv) the support payor to reach a settlement with the support recipient,

(v) the support payor to provide such further evidence as the director requires, including evidence of employment status,

(vi) the director to recalculate the amount in arrears if the amount has been brought into question by the support payor, or

(vii) the director to provide the child support service with information to enable the service to recalculate child support.

Arrears due if support payor defaults

66(3)

If the support payor 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.

Show cause hearing before judge or master

67(1)

The director may issue a summons, to be served personally or in any other manner a judge or master may direct, requiring a support payor

(a) to appear before a judge or master at the time and place stated in the summons to

(i) be examined in respect of the support payor's financial means and other circumstances, and

(ii) show cause why the support payor'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.

Powers of judge or master

67(2)

The judge or master 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 support payor:

(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 support payor is found to be wilfully in default;

(b) determines whether the support payor 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 support payor to pay the arrears in full by a specified date;

(d) requires the support payor 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 support payor cannot at that time make payments on the arrears, or

(ii) the support payor 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 support payor 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 support payor to deposit security in a form other than money to ensure compliance with the support order;

(h) dismisses the proceedings.

Imprisonment served intermittently

67(3)

If a term of imprisonment is imposed under clause (2)(a), the imprisonment may be ordered to be served intermittently at such times as are specified in the order.

Support payor has burden of proof

67(4)

For the purpose of clause (2)(a), the burden of proving that the default is not wilful is on the support payor.

Arrears due if support payor defaults

67(5)

If the support payor 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.

Additional penalties

67(6)

When making an order under clause (2)(c) or (d), the judge or master may make an order that requires the support payor 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 support payor's obligations under the order.

Continuation of adjourned hearing

67(7)

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.

Disposition of security

67(8)

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 support payor's obligations under the order have been discharged, must be returned to the support payor after deducting such administration costs as the judge or master considers appropriate.

Interest on security deposit

67(9)

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 support payor.

Support payor may be imprisoned for failing to provide security

67(10)

If a support payor who is ordered under clause (2)(f) or (g) or subsection (6) to provide security fails to provide it, the judge or master who made the order may order the support payor to be imprisoned for a term of not more than 30 days or until the security is provided.

Effect of imprisonment

68

The imprisonment of a support payor does not reduce or discharge the support payor's arrears.

Appeal from master to Q.B. judge

69

An order of a master under section 67 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 must be based on the record of the evidence that resulted in the order under appeal.

Judge or master may proceed with hearing or issue warrant

70

If a support payor fails to appear before a judge or master at a hearing under section 67 as required by

(a) a summons issued under section 67;

(b) a promise to appear given under subsection 71(2);

(c) an undertaking given under subsection 71(2) or (4);

(d) a recognizance entered into under subsection 71(5); or

(e) a condition of an adjournment ordered for such a hearing;

a judge or master may proceed with the hearing in the support payor's absence or issue a warrant for the support payor's arrest for the purpose of ensuring their attendance at the hearing.

Definitions

71(1)

The following definitions apply in this section.

"justice" means a judge of the Provincial Court, a master, the deputy registrar of the Court of Queen's Bench 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 their arrest. (« responsable »)

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

Arrested support payor to be released on promise or undertaking

71(2)

If a support payor is arrested pursuant to a warrant issued under section 70, the arresting peace officer or the officer in charge must, if the director is not opposed to the support payor's release, release the support payor on the support payor giving a promise to appear or an undertaking to appear at the hearing in question.

Arrested support payor to be brought before justice

71(3)

In the case of a support payor 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 support payor before a justice.

Release on undertaking

71(4)

The justice must order the release of the support payor 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 support payor's attendance at the hearing, detaining the support payor or requiring a recognizance is justified.

Release on recognizance

71(5)

If the director shows cause why a recognizance is justified to ensure the support payor's attendance at the hearing, the justice may order the support payor's release if the support payor 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 support payor's attendance at the hearing; and

(b) specifies in the order.

Order for detention

71(6)

If the director shows cause why detention of the support payor is justified to ensure the support payor's attendance at the hearing in question, the justice must order the support payor to be detained in custody until the completion of the hearing.

Director may show cause in writing

71(7)

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.

Appeal

72

An order under section 71 may be appealed to a judge of the Court of Queen's Bench.

ENFORCEMENT OF COURT COSTS

Court costs may be enforced

73(1)

The payment of court costs, as defined by regulation, may be enforced by the director in accordance with the regulations.

Regulations re court costs

73(2)

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 support payor to a support recipient or by a support recipient to a support payor, 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 PROVISIONS

Transition — continuation of enforcement

74

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 support payor as if it had been assessed or charged under this Act.

PART 4

MISCELLANEOUS PROVISIONS

Action required by court order

75

If the director is required by a court order to take any action, the director is not required to take that action until the director has received a copy of the order signed by the court.

Rights are additional

76

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

Support recipient may apply for appointment of receiver

77

In addition to any other remedy a support recipient may have for the enforcement of a support order, a support recipient may apply to a court for the appointment of a receiver. Section 58 applies, with necessary changes, to the application and, for this purpose, subsection 58(3) is to be read without reference to "under this Act".

No limitation period

78

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 support payor under subsection 37(1) or fees charged to the support payor under subsection 86(1).

Death of support payor

79(1)

If a support payor is in default under a support order at the time of their death, the amount in default is a debt of the estate and is recoverable by the support recipient in the same manner as any other debt recoverable from the estate.

Death of support recipient — effect on child support

79(2)

If support is payable for a child under a support order at the time of the support recipient's death, the personal representative of the deceased may sign and file with the director a statement in an approved form indicating that the enforcement provisions are to continue to apply to the child support provisions of the support order. On the filing of the statement, the enforcement provisions continue to apply to the child support provisions of the support order, but the director must make the child support payments payable to the estate of the support recipient.

Death of support recipient — effect on other support provisions

79(3)

If a support payor is in default under a support order with respect to payments other than support for a child at the time of the support recipient'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 the statement, the enforcement provisions continue to apply to the recovery of the arrears.

Death of child

79(4)

If support 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 support recipient. Upon receiving proof of the child's death, the director must cease enforcing support for the child as of the date of death or, if support is payable for more than one child, adjust the support payable as of the date of death in accordance with section 32 or 33, if possible.

Director may interpret orders

80(1)

The director may interpret a support order or other order for the purpose of enforcement under this Act.

Clarification of support order or other order

80(2)

If a support payor or support recipient does not agree with the director's interpretation of a support order or other order, the onus is on the support payor or support recipient to apply to a court to have the order clarified.

Offsetting child support if two support payors

81

If two support payors are required to pay child support to each other under a support order, the director may subtract the lower obligation from the higher one and enforce payment of the difference.

Adjustment of instalments

82

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.

Computer printout as evidence

83(1)

In any proceeding, a computer printout showing, as of the date of the printout, the state of the director's account of money paid or owing by the support payor or received by the support recipient under a support order is admissible in evidence as proof of the state of the account as of the date of the printout unless the contrary is shown.

Notice of certificate not required

83(2)

Despite subsection 49(3) of The Manitoba Evidence Act, a party intending to produce the printout may do so without prior notice to the other party.

No interest payable

84

No interest is payable by the government on money received by the director for the support recipient's benefit.

Money received for support recipient's benefit not attachable

85

Despite any other Act, money received by the director for a support recipient's benefit is not attachable by any other person or entity.

Director may charge fees to support payor

86(1)

The director may charge fees to a support payor 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 support payor's financial institution.

The fees are to be determined in accordance with the regulations.

Enforcing payment of fees

86(2)

The payment of fees charged under this section may be enforced in the same manner as a penalty imposed under section 37.

Money to be applied first to amounts payable to support recipient

86(3)

Money received or collected by the director may be applied to the amounts charged to a support payor under this section only if

(a) the support payor is not in arrears under a support order to which the enforcement provisions apply; and

(b) no penalty is owing under section 37.

Recovery of outstanding fees

86(4)

The director may enforce the payment of fees charged to a support payor under this section even if the director is no longer enforcing a support order against the support payor.

Cancellation of fee

86(5)

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 person in arrears or their estate, it would be grossly unfair and inequitable not to do so.

Director may reduce or cancel fees

86(6)

The director may reduce or cancel fees if

(a) the director is satisfied that the outstanding fees cannot be collected;

(b) the support payor does not reside in Manitoba and the support order is registered for the purpose of enforcement in another province, territory or reciprocating jurisdiction; or

(c) the director is satisfied that the reduction or cancellation is reasonable in the circumstances.

Offence — false statutory declaration

87(1)

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

87(2)

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 a term of not more than one year, or both.

Regulations

88

The Lieutenant Governor in Council may make regulations

(a) respecting the powers and duties of the director under this Act;

(b) prescribing fees, including

(i) the fee that may be charged to a support recipient for the filing of a statement to opt into the enforcement provisions,

(ii) the fees that may be charged to a support payor 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 payment plans under subsection 36(3);

(g) respecting the penalties to be imposed under section 37, 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;

(h) respecting support deduction notices under sections 44 to 51, including

(i) respecting the SDN payor's required response to a notice,

(ii) prescribing circumstances in which the director may adjust, suspend, reactivate or terminate a support deduction notice,

(iii) allowing a SDN payor to charge the support payor 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,

(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 63 (lottery prizes), respecting the collection and use of information about Manitoba claimants, and the use of the director's records about support payors, to determine if a claimant is a support payor;

(j) respecting records, including the form and content of records and the manner in which they must be maintained by the director;

(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, request or other document issued, served, given or filed under the former Act;

(l) prescribing anything referred to in this Act as being prescribed;

(m) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

PART 5

CONDITIONAL AND
CONSEQUENTIAL AMENDMENTS

CONDITIONAL AMENDMENTS

Conditional amendment

89(1)

This section applies if Schedule A of The Disability Support Act and Amendments to The Manitoba Assistance Act, S.M. 2021, c. 60, is in force on the day this Act comes into force or comes into force on or after the day this Act comes into force.

89(2)

Section 1 of this Act is amended

(a) by adding the following definition:

"Director of Disability Support" means the director designated under section 13 of The Disability Support Act; (« directeur du soutien pour personne handicapée »)

(b) by replacing the definition "support recipient" with the following:

"support recipient" means a person entitled to receive payments under a support order, and includes

(a) the Director of Assistance, or a person acting under their authority, in relation to support payments assigned to the Director of Assistance;

(b) the Director of Disability Support, or a person acting under their authority, in relation to support payments assigned to the Director of Disability Support;

(c) a government or agency referred to in section 39 of The Inter-jurisdictional Support Orders Act;

(d) a minister, member or agency to whom a support order is assigned under section 20.1 of the Divorce Act (Canada); and

(e) 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. (« créancier alimentaire »)

89(3)

Section 13 of this Act is replaced with the following:

Assignment of support orders

13

If a support recipient is an income assistance recipient, a support order may be assigned to the Director of Assistance or the Director of Disability Support, as the case may be, and when assigned, the Director of Assistance or the Director of Disability Support is entitled to receive the payments due under the support order.

89(4)

Clause 23(3)(b) of this Act is amended by adding "and the Director of Disability Support" after "Assistance".

89(5)

Section 34 of this Act is replaced with the following:

Notice to Director of Assistance or Disability Support

34

If the support receivable under a support order has been assigned to the Director of Assistance or the Director of Disability Support, the director must notify, as the case may be, the Director of Assistance or the Director of Disability Support of

(a) a request for information made to a support recipient under subsection 30(1); or

(b) a decision to cease enforcing the support order or to reduce the amount of support being enforced under the order.

89(6)

Subsection 35(5) of this Act is replaced with the following:

If support has been assigned to Director of Assistance or Disability Support

35(5)

When support receivable under the prior support order has been assigned to the Director of Assistance or the Director of Disability Support, the assignment is deemed to apply to support receivable under the foreign order being enforced under this section.

CONSEQUENTIAL AMENDMENTS

The Child Support Service Act

C.C.S.M. c. C96 amended

90(1)

The Child Support Service Act is amended by this section.

90(2)

Subsection 3(6) is amended by striking out "designated officer under The Family Maintenance Act" and substituting "director under The Family Support Enforcement Act".

90(3)

Subsection 3(8) is amended by striking out "The Family Maintenance Act" and substituting "The Family Support Enforcement Act".

90(4)

Clause 5(5)(a) is replaced with the following:

(a) if the child support service has been notified that the director under The Family Support Enforcement Act has ceased to enforce support for one or more children under section 31 of that Act;

90(5)

The following is added after subsection 5(5):

Resuming recalculation for adult children

5(5.1)

The child support service may resume recalculation of support for an adult child if the recipient satisfies the child support service that support for the adult child is eligible for recalculation.

Period of time ineligible for recalculation

5(5.2)

The child support service must not recalculate support for an adult child respecting the period of time between

(a) the day when recalculation ceased under subsection (5); and

(b) the day when recalculation resumed under subsection (5.1).

Exception

5(5.3)

Despite subsection (5.2), if the child support service has been notified that the director under The Family Support Enforcement Act has determined under subsection 31(5) of that Act that the adult child has resumed eligibility for enforcement, the child support service may recalculate as of the date determined by the director.

90(6)

Subsection 5(6) is amended

(a) in the section heading, by striking out "Family Maintenance Act" and substituting "Family Support Enforcement Act"; and

(b) by striking out "subsection 53.2(3) of The Family Maintenance Act" and substituting "subsection 15(3) of The Family Support Enforcement Act".

90(7)

Subsection 5(7) is amended by striking out "designated officer under The Family Maintenance Act" and substituting "director under The Family Support Enforcement Act".

90(8)

Subsection 5(9) is amended by striking out "The Family Maintenance Act" and substituting "The Family Support Enforcement Act".

90(9)

Subsection 7(3) is amended by striking out "designated officer under The Family Maintenance Act" and substituting "director under The Family Support Enforcement Act".

90(10)

Section 10 is amended, in the part before clause (a), by striking out "designated officer under The Family Maintenance Act" and substituting "director under The Family Support Enforcement Act".

The Court of Queen's Bench Act

C.C.S.M. c. C280 amended

91

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

C.C.S.M. c. D12 amended

92

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

C.C.S.M. c. E116 amended

93

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

C.C.S.M. c. E160 amended

94(1)

The Executions Act is amended by this section.

94(2)

The definition "judgment" in subsection 1(1) is amended by striking out "maintenance order as defined in Part VI of The Family Maintenance Act" and substituting "support order as defined in The Family Support Enforcement Act".

94(3)

Subsection 19.1(1) is amended

(a) in the section heading, by striking out "maintenance" and substituting "support"; and

(b) by striking out "a designated officer under Part VI of The Family Maintenance Act" and substituting "the director under The Family Support Enforcement Act".

94(4)

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".

94(5)

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".

94(6)

Subsection 23(1) is amended, in the part before clause (a), by striking out "by The Family Maintenance Act" and substituting "in this Act".

94(7)

The following is added after subsection 23(2):

Exemptions do not apply to support order

23(3)

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

C.C.S.M. c. F175 amended

95

Clauses 37(1)(k) and 44(1)(k) of The Freedom of Information and Protection of Privacy Act are amended by striking out "maintenance order under The Family Maintenance Act" and substituting "support order under The Family Support Enforcement Act".

The Garnishment Act

C.C.S.M. c. G20 amended

96(1)

The Garnishment Act is amended by this section.

96(2)

Subsection 4.2(3) of the English version is amended by striking out "maintenance orders" and substituting "support orders".

96(3)

Section 7 of the English version is amended

(a) in the section heading, by striking out "maintenance" and substituting "support"; and

(b) by striking out "maintenance order" and substituting "support order".

96(4)

Subclause 8(1)(a)(iii) is amended by striking out "designated officer" and substituting "director under The Family Support Enforcement Act".

96(5)

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".

96(6)

Subsection 12(3) is amended

(a) in the section heading, by striking out "alimony, etc." and substituting "support"; and

(b) in the English version, by striking out "maintenance order" and substituting "support order".

96(7)

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 "maintenance order enforced by a designated officer under Part VI of The Family Maintenance Act" and substituting "support order enforced by the director under The Family Support Enforcement Act".

96(8)

Subsection 12.1(2) is amended by striking out "designated officer" wherever it occurs and substituting "director".

96(9)

Subsection 12.1(3) is amended, in the part before clause (a), by striking out "designated officer" and substituting "director".

96(10)

Subsection 12.1(5) is amended by striking out "designated officer" and substituting "director".

96(11)

The centred heading before section 13 of the English version is amended by striking out "MAINTENANCE" and substituting "SUPPORT".

96(12)

Sections 13 to 13.2 are replaced with the following:

Definitions

13

The following definitions apply in this section and sections 13.1 to 14.3.

"creditor" means a support recipient under The Family Support Enforcement Act. (« 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 support payor under The Family Support Enforcement Act. (« débiteur judiciaire »)

"support order" means a support order as defined in The Family Support Enforcement Act. (« ordonnance alimentaire »)

Binding effect of garnishment for support

13.1(1)

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;

(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

13.1(2)

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

13.1(3)

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

13.2(1)

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.

Burden of proof

13.2(2)

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.

Application deadline

13.2(3)

An application for an order under this section must be made within 21 days after the garnishing order is served on the garnishee.

96(13)

Subsection 13.3(1) is amended by striking out "pursuant to section 13.1 or subsection 13.2(1)" and substituting "for support".

96(14)

Subsection 13.3(2) is repealed.

96(15)

Subsection 13.3(3) is amended by replacing the part before clause (a) with the following:

Garnishee's entitlement to costs

13.3(3)

The garnishee under a garnishing order for support is not entitled to costs for complying with the order except for

96(16)

Section 13.4 is repealed.

96(17)

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 the order was obtained

(i) by the creditor, or

(ii) 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;

96(18)

Subsection 13.5(2) is amended by striking out "against wages obtained under clause 13.1(b) or section 13.4" and substituting "for support that applies to wages".

96(19)

Section 13.6 is amended, in the part before clause (a), by striking out "under section 13.1, subsection 13.2(1) or section 13.4" and substituting "for support".

96(20)

Section 13.7 is amended by striking out "obtained to enforce a maintenance order" and substituting "for support".

96(21)

Subsection 14(1) is amended by striking out everything after "subject to garnishment" and substituting "by a garnishing order for support.".

96(22)

The section heading for subsection 14(2) is replaced with "Pension benefits garnishable like wages".

96(23)

Subsection 14.1(2) of the English version is amended by striking out "maintenance" and substituting "support".

96(24)

Subsection 14.1(3) is amended, in the part before clause (a), by striking out "obtained to enforce a maintenance order" and substituting "for support".

96(25)

Subsection 14.1(6) is amended

(a) in the section heading, by striking out "designated officer" and substituting "director"; and

(b) by striking out everything after "only" and substituting "by the director acting on behalf of a creditor.".

96(26)

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".

96(27)

Clause 14.2(2)(b) is amended by striking out "designated officer" and substituting "director".

96(28)

Subsection 14.2(4) is amended

(a) in the section heading, by striking out "Designated officer" and substituting "Director";

(b) by striking out "designated officer" and substituting "director"; and

(c) by striking out "the officer" and substituting "the director".

96(29)

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 "person entitled to maintenance under the maintenance order" and substituting "creditor".

96(30)

Clauses 14.3(b) and (c) are amended by striking out "person entitled to payment under the maintenance order" and substituting "creditor under the support order".

96(31)

Section 14.5 of the English version is amended by striking out "(priority of garnishment orders to enforce maintenance orders)" and substituting "(priority and duration of garnishing order)".

96(32)

Clause 15(d) is amended by striking out "designated officer," and substituting "director".

The Highway Traffic Act

C.C.S.M. c. H60 amended

97(1)

The Highway Traffic Act is amended by this section.

97(2)

Subsection 273.1(1) is replaced with the following:

Definition of "director"

273.1(1)

In this section and section 273.2, "director" means the director under The Family Support Enforcement Act.

97(3)

Subsection 273.1(2) is amended

(a) in the section heading of the English version, 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.".

97(4)

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,".

97(5)

Subsection 273.2(3) is replaced with the following:

Acceptance of premium by MPIC

273.2(3)

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.

97(6)

Clause 279(3)(c) of the English version is amended by striking out "maintenance" and substituting "support".

The Reciprocal Enforcement of Judgments Act

C.C.S.M. c. J20 amended

98

Section 1 of The Reciprocal Enforcement of Judgments Act is amended

(a) in the part after clause (b) of the definition "judgment" of the English version, by adding "or support" after "maintenance" wherever it occurs; and

(b) in the definition "jugement" of the French version

(i) by striking out "de pension alimentaire" and substituting "d'aliments", and

(ii) by striking out "déclarative".

The Parents' Maintenance Act

C.C.S.M. c. P10 amended

99

Section 7 of The Parents' Maintenance Act is replaced with the following:

Enforcement

7

An order made under this Act may be enforced under The Family Support Enforcement Act.

The Pension Benefits Act

C.C.S.M. c. P32 amended

100(1)

The Pension Benefits Act is amended by this section.

100(2)

Subsection 21.3(2) is amended, in the part before clause (a), by striking out "maintenance order within the meaning of that Act, to an order under section 59.3 of The Family Maintenance Act" and substituting "support order within the meaning of that Act, to a preservation order under section 53 of The Family Support Enforcement Act".

100(3)

Subsection 21.3.1(1) is amended, in the part before clause (a),

(a) in the English version, by striking out "maintenance order" and substituting "support order"; and

(b) by striking out "section 59.3 of The Family Maintenance Act" and substituting "section 53 of The Family Support Enforcement Act".

100(4)

Subsection 21.3.2(1) is amended

(a) in the English version, by striking out "maintenance order" and substituting "support order"; and

(b) by striking out "section 59.3 of The Family Maintenance Act" and substituting "section 53 of The Family Support Enforcement Act".

100(5)

Subsection 21.4(2) is amended, in the part before clause (a), by striking out "maintenance order within the meaning of that Act, to an order under section 59.3 of The Family Maintenance Act" and substituting "support order within the meaning of that Act, to a preservation order under section 53 of The Family Support Enforcement Act".

100(6)

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.

100(7)

Section 31.1 of the English version is amended, in the part before clause (a), by striking out "maintenance order" and substituting "support order".

100(8)

Clauses 38.1(b) and (c) are replaced with the following:

(b) a request for information under section 41 of The Family Support Enforcement Act; and

(c) a preservation order under section 53 of The Family Support Enforcement Act to preserve assets.

The Personal Investigations Act

C.C.S.M. c. P34 amended

101(1)

The Personal Investigations Act is amended by this section.

101(2)

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".

101(3)

Clause 4(e) is amended by striking out "designated officer under The Family Maintenance Act" and substituting "director under The Family Support Enforcement Act".

The Registered Retirement Savings
Protection Act

C.C.S.M. c. R116 amended

102

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;

The Tax Administration
and Miscellaneous Taxes Act

C.C.S.M. c. T2 amended

103

Clause 68(7)(a) of the English version of The Tax Administration and Miscellaneous Taxes Act is amended by striking out "maintenance" and substituting "support".

PART 6

REPEAL, C.C.S.M. REFERENCE AND
COMING INTO FORCE

Repeal

104

Part VI (Enforcement of Maintenance Orders) of The Family Maintenance Act is repealed.

C.C.S.M. reference

105

This Act may be referred to as chapter F26 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

106

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


SCHEDULE C

THE INTER-JURISDICTIONAL SUPPORT ORDERS AMENDMENT ACT

C.C.S.M. c. I60 amended

1

The Inter-jurisdictional Support Orders Act is amended by this Act.

2

Section 1 is amended

(a) by adding the following definitions:

"child support service" has the same meaning as in The Child Support Service Act; (« service des aliments pour enfants »)

"director" has the same meaning as in The Family Support Enforcement Act; (« directeur »)

(b) in the definition "designated authority",

(i) by striking out "persons" and substituting "entity", and

(ii) by adding "or entity" after "includes a person";

(c) by repealing the definition "designated officer"; and

(d) by replacing the definition "support order" with the following:

"support order" means

(a) an order made by a court or an administrative body requiring the payment of support,

(b) the provisions of a written agreement requiring the payment of support if those provisions are enforceable in the jurisdiction in which the agreement was made as if they were contained in an order of a court of that jurisdiction, or

(c) a family arbitration support award as defined in The Family Support Enforcement Act, or a comparable arbitration award made in a reciprocating jurisdiction if the award is enforceable as a court order in that jurisdiction,

and includes the calculation or recalculation by an administrative body of the payment of support for a child, if the decision respecting calculation or recalculation is enforceable as a court order in the jurisdiction in which it was made. (« ordonnance alimentaire »)

3

Section 4 of the French version is amended by striking out "verser" and substituting "payer".

4

Clause 5(2)(d) is amended

(a) in the part before subclause (i), by striking out "sworn"; and

(b) in paragraph (iv)(A) of the French version, by striking out "pour un enfant" and substituting "au profit d'un enfant".

5(1)

Subsection 7(1) of the English version is amended by striking out "a respondent" and substituting "the respondent".

5(2)

Subsection 7(3) is replaced with the following:

Forwarding provisional order

7(3)

If a provisional order is made, the Manitoba court must send the following documents to the designated authority, who must then forward the documents to the appropriate authority in the reciprocating jurisdiction:

(a) three certified copies of the provisional order;

(b) the support application under subsection 5(2) or documents corresponding to a support application;

(c) any other document the claimant filed with the Manitoba court when applying for the provisional order.

5(3)

Subsection 7(5) is amended by striking out "a proper officer of the Manitoba court must forward to the court in the reciprocating jurisdiction" and substituting "the Manitoba court must forward to the designated authority".

6(1)

Subsection 9(1) is replaced with the following:

Notice of hearing

9(1)

If the designated authority receives a support application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent named in the support application habitually resides in Manitoba, the designated authority must file the application with the Manitoba court, accompanied by a notice of hearing and any required supporting documents provided by the designated authority.

Exception re child support

9(1.1)

If a support application concerns only support for a child, the designated authority may forward the application to the child support service for a calculation of the amount of support to be paid, in which case subsection (1) does not apply.

If child support service unable to make calculation

9(1.2)

If the child support service is unable to make a calculation decision on a support application that has been forwarded to it, the child support service must return the support application to the designated authority, who must then file it with the Manitoba court under subsection (1).

Service

9(1.3)

Where the designated authority files a support application with the Manitoba court, the court registrar must serve or arrange to serve the documents on the respondent in accordance with the regulations. Service of the documents on the claimant is not required.

Respondent to file response with Manitoba court

9(1.4)

The respondent must file a response with the Manitoba court in accordance with the regulations.

6(2)

Subsection 9(2) is amended by replacing everything before clause (a) with the following:

Forwarding support application

9(2)

If the respondent is not served in accordance with subsection (1.3) and the designated authority knows or believes that the respondent is habitually resident in another reciprocating jurisdiction in Canada, the designated authority

6(3)

Subsection 9(3) is replaced with the following:

Returning support application to reciprocating jurisdiction

9(3)

The designated authority must return a support application to the appropriate authority in the originating reciprocating jurisdiction, along with any available information respecting the location and circumstances of the respondent, if

(a) the designated authority is unable to determine where the respondent resides; or

(b) the respondent has not been served in accordance with subsection (1.3) and the designated authority knows or believes that the respondent is habitually resident in a jurisdiction outside Canada.

7

The following is added after subsection 10(2):

Evidence by telephone or other technology

10(2.1)

The Manitoba court may receive evidence under this section from a party or a witness by telephone or other means of technology, unless the circumstances are such that it would clearly not be appropriate to do so.

8

The following is added after subsection 11(3):

Payment of parentage test

11(4)

A party who requests a parentage test for the purpose of a determination of parentage under this section must pay the cost of the test, unless the court orders otherwise.

Meaning of "parentage test"

11(5)

In subsection (4), "parentage test" has the same meaning as in subsection 26(1) of The Family Law Act.

9(1)

Subsection 12(1) of the French version is amended by striking out "des enfants" and substituting "au profit d'un enfant" in the section heading.

9(2)

Subsection 12(2) of the French version is amended by striking out "versé pour un enfant" and substituting "payé au profit d'un enfant".

10

Subsection 13(4) is amended by striking out "its order" and substituting "its decision".

11(1)

Subsection 14(1) is amended by striking out "provide the information or documents required under clause 9(1)(b)" and substituting "file a response in accordance with subsection 9(1.4)".

11(2)

Subsection 14(2) is repealed.

12

Section 15 is replaced with the following:

Forwarding order to designated authority

15(1)

After making an order under this Division, the Manitoba court must forward a certified copy of the order and reasons, if any, to the designated authority.

Forwarding order to reciprocating jurisdiction

15(2)

On receiving the certified copy of an order and reasons, if any, the designated authority must forward a copy of the order and any reasons to the appropriate authority in the reciprocating jurisdiction as soon as practicable.

Copy to respondent

15(3)

If the order was made in the absence of the respondent, the designated authority must also send a copy of the order and reasons, if any, to the respondent in accordance with the regulations.

13

The following is added after subsection 17(2):

Designated authority may request certified copy

17(3)

If the designated authority considers it appropriate, it may request the appropriate authority or the party who resides in the reciprocating jurisdiction to provide a certified copy of an extra-provincial order or a foreign order. In that case, the designated authority may decline to forward a copy of the order to the Manitoba court until the certified copy is received.

14

Subsection 18(4) is amended by striking out "designated officer" wherever it occurs and substituting "director".

15(1)

Subsection 19(1) of the French version is amended by striking out "verser" and substituting "payer".

15(2)

Clause 19(3)(b) is replaced with the following:

(b) set aside the registration if the Manitoba court

(i) determines that, in the proceeding in which the foreign order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard,

(ii) determines that the foreign order is contrary to the public policy of Manitoba,

(iii) determines that the court that made the foreign order did not have jurisdiction to make the order, or

(iv) is not satisfied with the authenticity or integrity of the foreign order.

15(3)

The following is added after subsection 19(3):

Court must request certified copy if authenticity unsatisfactory

19(3.1)

The Manitoba court may set aside the registration of a foreign order under subclause (3)(b)(iv) only if it has requested a certified copy of the order and one has not been received.

16

The following is added after section 20:

Foreign order deemed to be extra-provincial order where previous registration

20.1(1)

A foreign order received by the designated authority under this Part is deemed to be an extra-provincial order, and subsections 19(2) to (6) and section 20 do not apply if that order

(a) was previously registered in another province or territory under an Act that corresponds to this Act; and

(b) the registration has not been set aside in that province or territory.

Application to set aside registration of deemed extra-provincial order

20.1(2)

Despite subsection (1), the respondent may apply to the Manitoba court under subsection 19(2) if the respondent did not receive notice of registration in the province or territory where the order was previously registered.

17

Subsection 25(2) is amended

(a) in clause (b), by adding ", unless the designated authority advises the applicant that a non-certified copy is acceptable" at the end; and

(b) in clause (e), in the part before subclause (i), by striking out "sworn".

18(1)

Subsection 27(1) of the English version is amended by striking out "a respondent" and substituting "the respondent".

18(2)

Subsection 27(3) is replaced with the following:

Forwarding provisional order of variation

27(3)

If a provisional order of variation is made, the Manitoba court must send the following documents to the designated authority, who must then forward the documents to the appropriate authority in the reciprocating jurisdiction:

(a) three certified copies of the provisional order of variation;

(b) the support variation application under subsection 25(2) or documents corresponding to a support variation application;

(c) any other document the claimant filed with the Manitoba court when applying for the provisional order of variation.

18(3)

Subsection 27(5) is amended by striking out "a proper officer of the Manitoba court must forward to the court in the reciprocating jurisdiction" and substituting "the Manitoba court must forward to the designated authority".

19(1)

Subsection 29(1) is replaced with the following:

Notice of hearing

29(1)

If the designated authority receives a support variation application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent named in the support variation application habitually resides in Manitoba, the designated authority must file the application with the Manitoba court, accompanied by a notice of hearing and any required supporting documents provided by the designated authority.

Exception re child support

29(1.1)

If a support variation application concerns only support for a child, the designated authority may forward the application to the child support service for a recalculation of an amount to be paid, in which case subsection (1) does not apply.

If child support service unable to make recalculation

29(1.2)

If the child support service is unable to make a recalculation decision on a support variation application that has been forwarded to it, the child support service must return the support variation application to the designated authority, who must then file it with the Manitoba court under subsection (1).

Service

29(1.3)

Where the designated authority files a support variation application with the Manitoba court, the court registrar must serve or arrange to serve the documents on the respondent in accordance with the regulations. Service of the documents on the applicant is not required.

Respondent to file response with Manitoba court

29(1.4)

The respondent must file a response with the Manitoba court in accordance with the regulations.

19(2)

Subsection 29(2) is amended by replacing everything before clause (a) with the following:

Forwarding support variation application

29(2)

If the respondent is not served in accordance with subsection (1.3) and the designated authority knows or believes that the respondent is habitually resident in another reciprocating jurisdiction in Canada, the designated authority

19(3)

Subsection 29(3) is replaced with the following:

Returning support variation application to reciprocating jurisdiction

29(3)

The designated authority must return a support variation application to the appropriate authority in the originating reciprocating jurisdiction, along with any available information respecting the location and circumstances of the respondent, if

(a) the designated authority is unable to determine where the respondent resides; or

(b) the respondent has not been served in accordance with subsection (1.3) and the designated authority knows or believes that the respondent is habitually resident in a jurisdiction outside Canada.

20

The following is added after subsection 30(2):

Evidence by telephone or other technology

30(2.1)

The Manitoba court may receive evidence under this section from a party or a witness by telephone or other means of technology, unless the circumstances are such that it would clearly not be appropriate to do so.

21(1)

Subsection 31(1) of the French version is amended by striking out "des enfants" and substituting "au profit d'un enfant" in the section heading.

21(2)

Subsection 31(2) of the French version is amended by striking out "versé pour un enfant" and substituting "payé au profit d'un enfant".

21(3)

Subsection 31(2.1) is amended by striking out ", Manitoba Regulation 59/98".

22

Subsection 32(4) is amended by striking out "its order" and substituting "its decision".

23(1)

Subsection 33(1) is amended

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

(b) by striking out "provide the information or documents required under clause 29(1)(b)" and substituting "file a response in accordance with subsection 29(1.4)".

23(2)

Subsection 33(2) is repealed.

24

Section 34 is replaced with the following:

Forwarding order to designated authority

34(1)

After making an order under this Division, the Manitoba court must forward a certified copy of the order and reasons, if any, to the designated authority.

Forwarding order to reciprocating jurisdiction

34(2)

On receiving the certified copy of an order and reasons, if any, the designated authority must as soon as practicable forward a copy of the order and any reasons to the appropriate authority in the reciprocating jurisdiction in which the applicant is resident and if the support order was originally made in another reciprocating jurisdiction, to the appropriate authority in that jurisdiction.

Copy to respondent

34(3)

If the order was made in the absence of the respondent, the designated authority must also send a copy of the order and reasons, if any, to the respondent in accordance with the regulations.

25

Subsection 35(2) is amended

(a) in the section heading, by striking out "Family Maintenance Act" and substituting "Family Law Act"; and

(b) by striking out "The Family Maintenance Act" and substituting "The Family Law Act".

26

The following is added after subsection 36(2):

Notice of appeal to designated authority

36(2.1)

In addition to the service requirements under the Court of Appeal Rules, notice of an appeal under subsection (2) must be given to the designated authority within 10 days after the appeal is commenced.

27(1)

Subsection 37(1) is amended by adding "or entities" after "persons".

27(2)

Subsection 37(2) is amended

(a) by striking out "A person appointed" and substituting "A person or entity appointed"; and

(b) by striking out "other person or persons" and substituting "other person or entity".

28(1)

Subsection 37.1(1) is amended

(a) in the section heading, by striking out "designated officer" and substituting "director"; and

(b) in the part before clause (a), by striking out "designated officer" and substituting "director".

28(2)

Subsection 37.1(2) is amended by striking out "designated officer" and substituting "director".

29

Section 37.2 is amended by renumbering it as subsection 37.2(1) and adding the following as subsections 37.2(2) and (3):

Contact or other identifying information

37.2(2)

The designated authority may remove contact information or other identifying information from any document that is used and disclosed in accordance with subsection (1).

Order re confidentiality

37.2(3)

The Manitoba court may, on its own motion or on application from a party or the designated authority, order that any information provided for the purpose of a proceeding under this Act be kept confidential and not form part of the public record.

30

The following is added after subsection 38(1):

Electronic transmission of documents

38(1.1)

An order or document referred to in this section may be transmitted electronically with the approval of the appropriate authority of the reciprocating jurisdiction.

31

Section 40 is amended by adding "and form" after "Terminology" in the section heading.

32

Subsection 41(3) is replaced with the following:

Sworn or affirmed documents

41(3)

Statements in writing sworn to or affirmed by the maker and depositions or transcripts of evidence taken in a reciprocating jurisdiction may be received in evidence by the Manitoba court under this Act, whether or not section 63 (document sworn outside province) of The Manitoba Evidence Act has been complied with.

Unsworn or unaffirmed documents

41(4)

Despite section 63 (document sworn outside province) of The Manitoba Evidence Act, if a document from a reciprocating jurisdiction corresponding to a support application under subsection 5(2) or a support variation application under subsection 25(2) has not been sworn to or affirmed, the Manitoba court may receive the document in evidence under this Act — as proof of the content of the document in the absence of evidence to the contrary — if the following conditions are met:

1.

The document includes a statement by the claimant or applicant declaring that the matters set out in the document are true.

2.

The document was transmitted by an appropriate authority in a reciprocating jurisdiction to the designated authority in accordance with the regulations.

If authenticity or integrity at issue

41(5)

If the Manitoba court is not satisfied with the authenticity or integrity of a document referred to in subsection (4), it may require the claimant or applicant to do any of the following:

(a) swear to or affirm the document;

(b) provide a sworn or affirmed statement that the matters set out in the document are true;

(c) appear before the Manitoba court by telephone or other means of technology to swear or affirm that the matters set out in the document are true or to give oral evidence.

Designated authority may receive documents electronically

41.1

Subject to the regulations, the designated authority may receive orders or documents transmitted electronically from an appropriate authority in a reciprocating jurisdiction.

33

The following is added after section 42:

Applicable provincial law for Divorce Act

42.1

The provisions of this Act and the regulations are deemed to be the applicable provincial law for the purposes of subsections 18.1(2), 19(2) and 19.1(2) of the Divorce Act (Canada) except where the Court of Queen's Bench Rules include specific rules for proceedings under sections 18 to 19.1 of the Divorce Act (Canada).

34

Section 44.1 is repealed.

Transitional

35(1)

In this section, "former Act" means The Inter-jurisdictional Support Orders Act as it read immediately before the coming into force of this Act.

35(2)

The amendments made by this Act apply to any proceedings commenced under the former Act that are not concluded before this Act comes into force.

Coming into force

36

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