Acts and Regulations

Rule-72 - DIVORCE PROCEEDINGS

Table of contents
Full text
Current to 1 January 2024
PARTICULAR PROCEEDINGS
RULE 72
DIVORCE PROCEEDINGS
72.001Proceedings Commenced in Judicial Districts with a case management model
O.C. 2010-455; O.C. 2018-134
(1)Rule 81 applies to a divorce proceeding commenced under the Act in a Judicial District that has established a case management model for that type of proceeding.
(2)A divorce proceeding that was commenced before the commencement of this paragraph under this rule in any Judicial District that has established a case management model for that type of proceeding shall be dealt with and concluded in accordance with the procedure in force under this rule immediately before the commencement of this paragraph.
O.C. 2010-455; O.C. 2018-134
72.01Application of Other Rules
Unless provided otherwise by statute or by this rule, the rules applicable to an action apply, with the necessary modifications, to a divorce proceeding.
72.02Definitions
In this rule, the words and expressions defined in the Act have the same meaning as in the Act, and, unless the context requires otherwise,
Act means the Divorce Act;
applicable guidelines means applicable guidelines as defined in subsection 2(1) of the Act and includes any amendments made to them;
person-named means a person named as being the person with whom a party is alleged in a petition or counter-petition to have committed adultery;
undefended proceeding means a divorce proceeding in which no Answer has been served and filed, or the Answer has been withdrawn or struck out, or a divorce proceeding in which no Answer to Counter-Petition has been served and filed, or the Answer to Counter-Petition has been withdrawn or struck out and the Petition for Divorce has been discontinued or dismissed.
O.C. 97-640
72.03Joinder of Claims
A claim for relief under the Marital Property Act may be included in a Petition for Divorce, Joint Petition for Divorce or the Counter-Petition portion of an Answer and Counter-Petition.
O.C. 87-568
72.04Petition for Divorce
(1)A divorce proceeding shall be commenced by filing with the Registrar in Fredericton an original and a copy of a Petition for Divorce (Form 72A) or a Joint Petition for Divorce (Form 72B).
(2)The date of filing of a Petition for Divorce or a Joint Petition for Divorce is the day the petition is received at the Registrar’s office.
(3)Except where the spouses commence a divorce proceeding jointly, the party commencing a divorce proceeding shall be called the petitioner, and the opposite party, the respondent.
(4)Where the spouses commence a divorce proceeding jointly, they shall be called the petitioner and the joint petitioner.
(5)A Joint Petition for Divorce shall not contain a claim for any relief other than a divorce and, if applicable, relief to be granted by an order on consent.
(6)A Petition for Divorce that contains a claim for child support, spousal support or division of property shall,
(a) where child support is claimed, set out the number of children under the age of majority, the number of children over the age of majority and the nature and amount of any special expenses claimed,
(b) where spousal support is claimed, set out the amount claimed as spousal support, or
(c) where a division of property is claimed, set out the nature and amount of relief claimed.
(7)A spouse who alleges in a Petition for Divorce that the other spouse has committed adultery is not required to set out in the petition the name of the person with whom the adultery allegedly was committed.
(8)Upon the filing of the original and a copy of a Petition for Divorce or a Joint Petition for Divorce, with the prescribed filing fee, the Registrar shall
(a) stamp the original and copy with the date of filing,
(b) assign to the petition a Divorce Registry number,
(c) sign and seal the petition,
(d) return the original to the spouse who filed it or to that spouse’s solicitor, and
(e) retain and file the copy.
O.C. 97-640; O.C. 2006-228
72.05Service of Petition for Divorce
(1)Unless ordered otherwise, a Petition for Divorce and all documents required to be served with it shall be served on the respondent and, if the petition states the name of a person-named, on that person in the manner provided for in Rule 18 for service of originating process.
(2)A Petition for Divorce that is served personally shall be served by someone other than the petitioner or a person-named.
(3)A Petition for Divorce may be served outside New Brunswick without leave.
(4)Where the court orders substituted service of a Petition for Divorce by publication of a notice in a newspaper, a Notice of Petition for Divorce (Form 72C) shall be used.
(5)The court may dispense with service of a Petition for Divorce on a respondent or other person who cannot be found if it is satisfied that
(a) reasonable efforts have been made to locate the respondent or other person, and
(b) substituted service is not likely to bring the petition to the attention of the respondent or person.
72.06Time for Service of Petition for Divorce
A Petition for Divorce shall be served within 6 months after the date on which it is filed.
72.07Pleadings
(1)In a divorce proceeding, pleadings consist of the Petition for Divorce or the Joint Petition for Divorce and an Answer (Form 72D) and may include a Reply (Form 72E).
(2)In a proceeding by counter-petition, pleadings consist of the Answer and Counter-Petition (Form 72F) and an Answer to Counter-Petition (Form 72G) and may include a Reply to Answer to Counter-Petition (Form 72H).
72.08Answer
(1)A respondent who wishes to oppose a Petition for Divorce or a person-named who wishes to dispute an allegation shall serve an Answer on the petitioner and file it with the Registrar.
(2)Subject to paragraph (4), an Answer shall be served and filed
(a) within 20 days after service of the Petition for Divorce in New Brunswick;
(b) within 30 days after service of the Petition for Divorce elsewhere in Canada or in the United States of America, or
(c) within 60 days after service of the Petition for Divorce anywhere else.
(3)A respondent or a person-named who has been served with a Petition for Divorce and intends to defend the proceeding may serve and file a Notice of Intent to Defend (Form 72I) within the time limited for serving and filing an Answer.
(4)A respondent or a person-named who serves and files a Notice of Intent to Defend within the time limited under paragraph (2) shall have an additional 10 days within which to serve and file an Answer.
O.C. 97-640; O.C. 98-337
A Reply, if any, shall be served and filed with the Registrar within 10 days after service of the Answer.
72.10Counter-Petition
(1)A respondent who claims relief other than dismissal of the Petition for Divorce, with or without costs, shall do so by way of counter-petition.
(2)A counter-petition that contains a claim for child support, spousal support or division of property shall,
(a) where child support is claimed, set out the number of children under the age of majority, the number of children over the age of majority and the nature and amount of any special expenses claimed,
(b) where spousal support is claimed, set out the amount claimed as spousal support, or
(c) where a division of property is claimed, set out the nature and amount of relief claimed.
(3)Where there is a counter-petition, the counterpetition and Answer shall be combined in one document and called Answer and Counter-Petition.
O.C. 97-640
72.10.1Application for Parenting Order or Contact Order with Leave of the Court
O.C. 2021-62
(1)A person who is not a spouse but who is a parent of a child, or who stands in the place of a parent or intends to stand in the place of a parent, may apply for a parenting order, with leave of the court, by filing with an administrator a Notice of Preliminary Motion (Form 37B), an Application (Form 81A) and copies of those documents for every other party.
(2)An Application under paragraph (1) shall be accompanied by an Affidavit in Support of Claim for Parenting Order (Form 81B).
(3)A person may apply for a contact order, with leave of the court, by filing with an administrator a Notice of Preliminary Motion (Form 37B), an Application for Contact Order (Form 81AA) and copies of those documents for every other party.
(4)An Application for Contact Order shall be accompanied by a supporting affidavit.
O.C. 2021-62
72.11Service of Answer and Counter-Petition
(1)An Answer and Counter-Petition shall be served
(a) on the petitioner within the time limited by Rule 72.08, and
(b) on any person-named in the counter-petition, together with a copy of the Petition for Divorce, within 30 days after service on the petitioner.
(2)An Answer and Counter-Petition shall be served in accordance with Rules 18.05, 18.06 and 18.07.
(3)Rule 72.04(7) applies to a counter-petition.
(4)A counter-petition may be served outside New Brunswick without leave.
(5)Rule 72.05(5) applies to the service of a counter-petition on a person-named in the counter-petition.
72.12Answer to Counter-Petition
(1)A petitioner who opposes a counter-petition shall serve on the respondent and file with the Registrar an Answer to Counter-Petition within the time limited for service of a Reply, and where there is a Reply, the Reply and Answer to Counter-Petition shall be combined in one document and called Reply and Answer to Counter-Petition.
(2)A person-named in a counter-petition who disputes an allegation shall serve on the respondent and file with the Registrar an Answer to Counter-Petition within 20 days after service of the Answer and Counter-Petition.
72.13Reply to Answer to Counter-Petition
A Reply to Answer to Counter-Petition, if any, shall be served and filed with the Registrar within 10 days after service of the Answer to Counter-Petition.
72.14Financial Statements
(1)Where a Petition for Divorce contains
(a) a claim for child support,
(i) where income information of the petitioner is required by the applicable guidelines, the petitioner shall, with the Petition for Divorce, serve on the respondent a Financial Statement (Form 72J) and such income information, and
(ii) the respondent shall, with the Answer, serve a Financial Statement and the income information required by the applicable guidelines,
(b) a claim for spousal support, the petitioner shall serve on the respondent a Financial Statement with the Petition for Divorce and the respondent shall serve a Financial Statement with the Answer, and
(c) a claim for division of property, the petitioner shall serve on the respondent a Financial Statement with the Petition for Divorce and the respondent shall serve a Financial Statement with the Answer.
(2)Where a claim
(a) for child support is not made in the Petition for Divorce, but is made in a counter-petition,
(i) where income information of the respondent is required by the applicable guidelines, the respondent shall, with the Answer and Counter-Petition, serve a Financial Statement and such income information, and
(ii) the petitioner shall, with the Answer to Counter-Petition, serve a Financial Statement and the income information required by the applicable guidelines,
(b) for spousal support is not made in the Petition for Divorce, but is made in a counter-petition, the respondent shall serve a Financial Statement with the Answer and Counter-Petition, and the petitioner shall serve a Financial Statement with the Answer to Counter-Petition, and
(c) for division of property is not made in the Petition for Divorce, but is made in a counter-petition, the respondent shall serve a Financial Statement with the Answer and Counter-Petition, and the petitioner shall serve a Financial Statement with the Answer to Counter-Petition.
(3)Subject to paragraph (5), a party who does not intend to defend a claim
(a) for child support shall nevertheless serve a Financial Statement and the income information required by the applicable guidelines within the time limited for the service of an Answer or Answer to Counter-Petition, as the case may be, or
(b) for spousal support shall nevertheless serve a Financial Statement within the time limited for the service of an Answer or Answer to Counter-Petition, as the case may be,
but the failure of a party to do so does not prevent the other party from setting the action down for trial.
(4)Where the parties have agreed on relief to be granted with respect to child support, spousal support and division of property, Financial Statements and, in the case of child support, income information required by the applicable guidelines are not required to be served unless ordered otherwise.
(5)Where a party fails to serve a Financial Statement or income information required under this subrule, the other party may apply, without notice, for an order requiring service of a Financial Statement or such income information within a specified time.
(6)Where a party fails to comply with an order to serve a Financial Statement or income information required under this subrule
(a) the court may dismiss the party’s action or strike out the party’s Answer or Answer to Counter-Petition;
(b) a judge may make a contempt order against the party; and
(c) the court may draw an inference against the party and impute income to the party in such amount as it considers appropriate.
(7)A party may cross-examine the other party on his or her Financial Statement or, where there is a claim for child support, on his or her income information required by the applicable guidelines
(a) on the hearing of a motion for interim relief and the cross-examination may be used in evidence at the trial in the same manner as an examination for discovery,
(b) on examination for discovery, and
(c) at trial.
(8)Where public disclosure of information contained in a statement required under this subrule would probably create hardship, the court may order that the statement and any cross-examination upon it be treated as confidential and not form part of the public record.
(9)A party who has delivered a statement required under this subrule and subsequently discovers
(a) that any information in the statement or any answer on cross-examination on it was incorrect or incomplete when made, or
(b) that there has been a material change in any information contained in the statement or given on cross-examination,
shall forthwith provide information concerning the change or correction in writing to the other party, and Rules 32.09(2) and (3) apply, with the necessary modifications.
O.C. 97-640; O.C. 2010-455
72.15Examination of Person-Named
A person-named may also be examined for discovery.
O.C. 2010-455
72.16Interim Relief
(1)A Notice of Motion for
(a) suit money,
(b) an interim order for child support or spousal support, an interim parenting order or an interim contact order, or
(c) an interim order under the Marital Property Act,
may be served with a Petition for Divorce, an Answer and Counter-Petition or an application for corollary relief or at any time thereafter.
(1.1)Where a motion under this subrule includes a motion for an interim order for child support, Rule 72.22.1 applies with the necessary modifications.
(2)Subject to paragraph (1.1), a Notice of Motion for interim relief shall set out the precise relief sought, including the amount of support claimed for each person.
(3)On a motion for suit money the court shall determine what amount is necessary to cover the party’s reasonable fees and expenses incidental to a divorce proceeding and, unless the court is satisfied that the party has sufficient separate means or other good cause exists for not granting the motion, may order the other party to pay or secure that amount to the party making the motion.
(4)The court may make such further orders for the payment or security of additional suit money as it considers necessary.
(5)On a motion under this subrule the court may conduct a pre-trial conference before disposing of the motion.
(6)Rule 73.12 applies, with the necessary modifications, to a pre-trial conference under paragraph (5).
(7)Where a party fails to comply with an order for interim relief and the court is satisfied that the party is able to comply with the order, the court may postpone the trial of the action or strike out any pleading or affidavit of the party in default.
O.C. 87-568; O.C. 97-640; O.C. 2021-62
72.17Place of Trial
(1)Unless ordered otherwise under Rule 45.02, trial shall take place in the judicial district in which one of the parties habitually resides.
(2)The petitioner or the petitioner and the joint petitioner shall specify the place of trial in the petition.
O.C. 2006-228; O.C. 2021-62
72.18Setting Down for Trial and Proof of Facts by Affidavits
(1)A divorce proceeding shall be set down for trial by filing a trial record with the administrator of the Family Division of the court in the judicial district where the proceeding is to be tried and, subject to paragraph (8), the administrator shall
(a) in consultation with a judge, fix a date for trial, and
(b) notify the petitioner or the petitioner and the joint petitioner, as the case may be, and the respondent if he or she has delivered an Answer, or their solicitors, of
(i) the date so fixed, and
(ii) any direction given under paragraph (8).
(2)In a divorce proceeding the trial record shall contain
(a) an index,
(b) the original Petition for Divorce or Joint Petition for Divorce and proof of its service,
(c) a copy of all other pleadings including those relating to any counter-petition,
(d) a certified copy of the report received by the Registrar from the Central Divorce Registry,
(e) a copy of any order extending time, permitting substituted service or dispensing with service and the affidavits in support of the order,
(f) if applicable, copies of all Financial Statements, of all income information required by the applicable guidelines and of any written agreements relating to relief claimed by either party if those agreements are not attached to the petition,
(g) any affidavits to be presented, and
(h) the documents referred to in Rules 47.06(1)(c) to (h).
(3)A respondent who sets a divorce proceeding down for trial shall include in the trial record a copy of the Petition for Divorce and the petitioner shall file the original Petition for Divorce with the court at the commencement of the trial.
(4)Where an Answer or an Answer to Counter-Petition is served after an undefended proceeding has been set down for trial, or where any pleading is amended after a divorce proceeding has been set down for trial, the party who set the proceeding down for trial shall forthwith file a copy with the administrator who shall attach it to the trial record.
(5)Pre-trial briefs are not required
(a) where the petition is made jointly by both spouses,
(b) in an undefended proceeding, or
(c) where the parties have settled all issues between them.
(6)A petitioner in an undefended proceeding who wishes to have the proceeding considered on the basis of affidavit evidence shall include in the trial record a Request for Divorce (Form 72K) and an affidavit of the petitioner prepared in accordance with paragraph (9) and sworn to not more than 5 days before the trial record is filed or such longer period as the judge may allow.
(7)Where there is a Joint Petition for Divorce, the petitioner and the joint petitioner may include in the trial record a Request for Divorce and a joint affidavit or separate affidavits prepared in accordance with paragraph (11) and sworn to not more than 14 days before the trial record is filed or such longer period as the judge may allow.
(8)The administrator upon receiving a trial record containing a Request for Divorce shall submit it to a judge for consideration and the judge may do one or more of the following:
(a) render any judgment to which the petitioner is, or the petitioner and the joint petitioner are, entitled;
(b) direct the petitioner or counsel for the petitioner to appear in court with or without notice to the respondent or, in the case of the petitioner and the joint petitioner, direct them or their counsel to appear in court;
(c) direct that further evidence be presented; or
(d) direct the administrator to fix a date for trial on oral evidence.
(9)A petitioner’s affidavit included in a trial record under paragraph (6) shall
(a) identify the parties to the divorce proceeding and establish that one of the parties was habitually resident in New Brunswick for at least one year immediately preceding the date on which the proceeding was commenced,
(b) provide the respondent’s last known address and state the means by which the address is known,
(c) contain sufficient information for the court to satisfy itself that
(i) there is no possibility of the reconciliation of the spouses, or
(ii) the circumstances of the case are of such a nature that it would clearly not be appropriate for the court to satisfy itself with respect to clause (i),
(d) confirm that all the information in the Petition for Divorce is correct, except as specified in the affidavit,
(e) if no certificate of marriage is attached to the Petition for Divorce, exhibit a certificate of marriage or state
(i) what efforts have been made to obtain a certificate and why it is impossible to obtain one,
(ii) the date and place of marriage, and
(iii) sufficient facts to prove the marriage,
(f) set out particulars of the grounds for divorce,
(g) state that there has been no agreement or conspiracy to which the petitioner is either directly or indirectly a party for the purpose of subverting the administration of justice, including any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court,
(h) where a divorce is sought in circumstances described in paragraph 8(2)(b) of the Act, state that the petitioner has not condoned or connived at the act or conduct complained of, or, if there has been condonation or connivance on the part of the petitioner, set out the circumstances that indicate that the public interest would be better served by granting the divorce,
(i) provide particulars of the present and proposed allocation of parenting time and decision-making responsibility with respect to each child of the marriage, if different from those set out in the petition,
(j) if the petitioner claims spousal support, provide particulars of his or her needs and of the respondent’s means, with reference to the Financial Statements filed in the action, and set out particulars of any change in circumstances since the Financial Statements were filed,
(j.1) if the petitioner claims child support, provide particulars of any circumstances that the petitioner is relying upon to support his or her claim, with reference to the Financial Statements filed in the action and income information required by the applicable guidelines filed in the action, and set out particulars of any change in circumstances since the Financial Statements and income information were filed,
(k) if the petitioner does not claim a division of property, confirm that he or she does not wish to claim a division of property at this time and state that he or she is aware that no application for a division of property under the Marital Property Act shall be made later than 60 days after the divorce takes effect except under the circumstances set out in subsection 3(4) of the Marital Property Act,
(l) if the petitioner wishes to include in the judgment provisions of a domestic contract, separation agreement, minutes of settlement, previous court order or any other document, refer to the document as an exhibit and refer to the specific provisions to be included,
(m) if the petitioner claims costs, set out sufficient facts to enable the court to determine whether costs should be awarded, and
(n) if the petitioner seeks to have the divorce take effect earlier than the thirty-first day after the day on which judgment is rendered, set out the special circumstances that justify the earlier effective date, and attach as an exhibit the parties’ Agreement Not to Appeal (Form 72L).
(10)An affidavit made by a respondent in support of a Request for Divorce shall
(a) state that the respondent is the petitioner’s spouse,
(b) provide the respondent’s address for service of the judgment,
(c) Repealed: O.C. 99-699
(d) comply with the requirements of clauses (9)(c), (d), (g), (h), (i), (j) and (j.1), and
(e) if the respondent does not claim a division of property, confirm that he or she does not wish to claim a division of property at this time and state that he or she is aware that no application for a division of property under the Marital Property Act shall be made later than 60 days after the divorce takes effect except under the circumstances set out in subsection 3(4) of the Marital Property Act.
(11)The affidavit or affidavits in support of a Joint Petition for Divorce shall comply with the requirements of clauses (9)(a), (c), (d), (e), (f), (i) and (n) and
(a) state that there has been no agreement or conspiracy to which either spouse is either directly or indirectly a party for the purpose of subverting the administration of justice, including any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court,
(b) if the spouses do not claim a division of property, confirm that they do not wish to claim a division of property at this time and state that they are both aware that no application for a division of property under the Marital Property Act shall be made later than 60 days after the divorce takes effect except under the circumstances set out in subsection 3(4) of the Marital Property Act, and
(c) if the spouses wish to include in the judgment provisions of a domestic contract, separation agreement, minutes of settlement, previous court order or any other document, refer to the document as an exhibit and refer to the specific provisions to be included.
(12)Where a counter-petition is undefended and the respondent wishes to have the proceeding considered on the basis of affidavit evidence, paragraphs (6), (8), (9) and (10) apply with the necessary modifications.
(13)Where the parties have settled all issues between them and the petitioner or respondent wishes to have the proceeding considered on the basis of affidavit evidence, paragraphs (6), (8), (9) and (10) apply with the necessary modifications.
O.C. 90-120; O.C. 97-640; O.C. 99-699; O.C. 2006-228; O.C. 2010-455; O.C. 2021-62
72.19Adjournments
(1)Where, before hearing evidence, the court adjourns the proceeding under subsection 10(2) of the Act, a motion for resumption of the proceeding under subsection 10(3) of the Act may be made to any judge.
(2)Where, after hearing evidence, the court adjourns the proceeding under subsection 10(2) of the Act, a motion for resumption of the proceeding under subsection 10(3) of the Act shall be made to the judge who adjourned the proceeding.
72.20Judgments and Orders
(1)This subrule applies to divorce proceedings commenced on or after June 1, 1986.
(2)When a judgment granting a divorce is rendered, the Registrar shall prepare, sign and enter a Divorce Judgment (Form 72M).
(3)When a judgment granting a divorce is rendered ordering that a divorce take effect earlier than the thirty-first day after the day on which the judgment is rendered, the Divorce Judgment shall be in Form 72N.
(4)When the court makes an order granting corollary relief, the Registrar shall prepare, sign and enter a separate formal order embodying the corollary relief.
(5)Unless service is dispensed with by the judge who presides at the hearing, the Registrar shall forthwith serve a copy of the Divorce Judgment and of any separate formal order for corollary relief on the respondent by ordinary mail at such address as the judge directs.
(6)A Certificate of Divorce issued under subsection 12(7) of the Act shall be in Form 72O.
O.C. 2010-455
72.21Repealed
Repealed: O.C. 2021-62
O.C. 2021-62
72.22Motion to Vary, Rescind or Suspend
(1)Subject to Rule 72.22.1, a motion to vary, rescind or suspend a support order, a parenting order or a contact order or to obtain such an order after a divorce shall be made by Notice of Motion (Form 37A).
(2)On a motion under paragraph (1) respecting a support order
(a) the party giving notice shall serve a Financial Statement with the Notice of Motion, and
(b) the party served with the Notice of Motion shall serve the party giving notice with a Financial Statement at least two days before the hearing of the motion.
(3)On a motion under paragraph (1) respecting a parenting order the court may order the parties to serve Financial Statements within a specified time.
O.C. 97-640; O.C. 2021-62
72.22.1Motion to Vary, Rescind or Suspend Child Support Order
O.C. 97-640
(1)A motion to vary, rescind or suspend a child support order or to obtain such order after a divorce shall be made by Notice of Motion (Form 72U).
(2)A Notice of Motion shall
(a) state the names and ages of the children to whom the support order applies,
(b) state the relief sought,
(c) state the grounds to be argued, and
(d) list the documentary evidence to be used at the hearing of the motion.
(3)A Notice of Motion shall be accompanied by
(a) any affidavits to be used at the hearing by the person giving notice, and
(b) where the applicable guidelines require income information of the person giving notice, such income information and a Financial Statement.
(4)A Notice of Motion, together with the affidavits, income information and Financial Statement required under paragraph (3), shall be filed with the administrator of the Family Division in the judicial district in which the motion is to be heard.
(5)At least 25 days before the date of the hearing, the party giving notice shall serve the other party with the Notice of Motion, affidavits, income information and Financial Statement.
(6)Within 20 days after being served, the party served with the Notice of Motion shall file with the administrator and serve on the party giving notice
(a) any affidavits to be used at the hearing by the party served with the Notice of Motion,
(b) where the applicable guidelines require income information of the party served with the Notice of Motion, such income information and a Financial Statement, and
(c) where the party served with the Notice of Motion wishes to oppose the variation, rescission or suspension of the child support order or to assert a right or claim, a Reply (Form 72V).
(7)Where, as a result of a Reply under clause (6)(c), the party served with the Reply is required to provide income information by the applicable guidelines, the party served with the Reply shall file with the administrator and serve on the other party such income information and a Financial Statement at least 3 days before the date of the hearing.
(8)Except as otherwise provided in this subrule, Rules 37 and 39 apply with the necessary modifications to a motion under this subrule.
O.C. 97-640; O.C. 98-337; O.C. 2006-228
72.22.2Consent Order
O.C. 97-640
(1)Notwithstanding Rule 72.22.1, where the parties consent to the variation, rescission or suspension of a child support order, they shall file with the administrator, in the judicial district in which one of the parties habitually resides, a consent order signed by both parties and accompanied by a copy of the child support order and any income information required by the applicable guidelines.
(2)The administrator shall submit a consent order to a judge for consideration.
(3)The judge may do one or more of the following:
(a) make an order;
(b) direct that further evidence be presented; and
(c) direct the administrator to set a date and time for a hearing of the oral evidence.
(4)When an order is made under clause (3)(a), the administrator shall forward the original to the Registrar.
O.C. 97-640; O.C. 2021-62
72.22.3Motion on Change in Place of Residence or Relocation
O.C. 2021-62
(1)For the purpose of subsection 16.8(3) or 16.9(3) of the Act, a person who has parenting time or decision-making responsibility in respect of a child and who intends to change their place of residence or to undertake a relocation, as the case may be, may make a motion without notice seeking an order for
(a) an exemption from the requirement to give notice of a change in place of residence or of a relocation, or
(b) a modification to the requirement to give notice of a change in place of residence or of a relocation.
(2)For the purpose of subsection 16.96(3) of the Act, a person who has contact with a child under a contact order who intends to change their place of residence may make a motion without notice seeking an order for 
(a) an exemption from the requirement to give notice of a change in place of residence, or
(b) a modification to the requirement to give notice of a change in place of residence.
(3)A motion under paragraph (1) or (2) shall be made by Notice of Motion (Form 37A) accompanied by a supporting affidavit.
(4)The person giving notice shall file the Notice of Motion and the affidavit with the administrator of the Family Division in the judicial district where the person habitually resides.
(5)A person who has parenting time or decision-making responsibility in respect of a child and who intends to undertake a relocation who receives a notice of objection to relocation under clause 16.91(1)(b)(i)(A) of the Act may make a motion to 
(a) vary, rescind or suspend a parenting order, or
(b) obtain a parenting order after a divorce.
(6)A person who has parenting time or decision-making responsibility in respect of a child who objects to a relocation may state their objection by making a motion to 
(a) vary, rescind or suspend a parenting order, or
(b) obtain a parenting order after a divorce.
(7)A motion under paragraph (5) shall be made by filing the following: 
(a) a Notice of Motion (Form 37A) accompanied by a supporting affidavit;
(b) a copy of the notice of relocation; and
(c) a copy of the notice of objection to relocation.
(8)A motion under paragraph (6) shall be made by filing the following: 
(a) a Notice of Motion (Form 37A) accompanied by a supporting affidavit; and
(b) a copy of the notice of relocation.
(9)A Notice of Motion and any accompanying documents referred to in paragraph (7) or (8) shall be filed with the administrator of the Family Division in the judicial district where one of the parties habitually resides.
(10)A party who files a Notice of Motion shall serve a copy of it and of any accompanying documents on the other persons who have parenting time and decision-making responsibilities with respect to the child in the manner provided for in Rule 18 for the service of originating process.
(11) A party served with a Notice of Motion shall serve on the party who filed it an affidavit in response at least two days before the hearing of the motion.
O.C. 2021-62
72.22.4Inter-jurisdictional Proceedings
O.C. 2021-62
(1)The following definitions apply in this subrule.
designated authority means a person or entity designated by a province to exercise the powers or perform the duties and functions set out in sections 18.1 to 19.1 of the Act.
designated jurisdiction means a jurisdiction outside Canada that is designated as a reciprocating jurisdiction by regulation under the Interjurisdictional Support Orders Act.
responsible authority means a person or entity in a designated jurisdiction that performs functions that are similar to those functions performed by a designated authority.
(2)An inter-jurisdictional proceeding is commenced when an applicant who is habitually resident in New Brunswick files with the administrator of the Family Division in the judicial district in which the applicant habitually resides an application for a support order or an application for the variation of a support order in the form required by the designated authority for New Brunswick.
(3)On receiving an application under paragraph (2), the administrator shall review the application and ensure it is complete and then forward it and any accompanying documents to the office of the Registrar.
(4)On receiving an application under paragraph (3), the Registrar shall forward the application and any accompanying documents to the designated authority for the province in which the applicant believes the respondent is habitually resident or to the responsible authority in the designated jurisdiction in which the applicant believes the respondent is habitually resident, as the case may be.
(5) On receiving an inter-jurisdictional application for a support order or for the variation of a support order from an applicant who is habitually resident outside New Brunswick, the Registrar shall forward the application and accompanying documents to the administrator of the Family Division in the judicial district in which the respondent habitually resides.
(6)On receiving an application under paragraph (5), the administrator shall serve a copy of the application and of any accompanying documents on the respondent in the manner provided for in Rule 18 for service of originating process, together with a notice setting out the manner in which the respondent shall respond to the application, including the place and time the respondent is required to appear as well as any documents or other information required to be provided. 
(7)A respondent served under paragraph (6) who wishes to oppose the application or who wishes to assert a right or a claim shall file a response in the form required by the designated authority for New Brunswick within 20 days after being served with the application.
(8)On receiving a request for further evidence from a designated authority or a responsible authority under subsection 18.1(13) or 19(11) of the Act, the Registrar shall communicate the request to the applicant, who is required to provide the information in an affidavit within the time set out by the designated authority or responsible authority, as the case may be, or, if no time has been specified, within twelve months after receiving the request.
(9) If an applicant serves a Notice of Motion (Form 37A or Form 72U) that seeks to vary a support order under the Act on a respondent who habitually resides in another province or territory of Canada, the respondent may, within 40 days after being served, send to the administrator of the Family Division in the judicial district where the Notice of Motion was filed a request that the Notice of Motion be converted into an application for the variation of a support order under paragraph (2).
(10)Subject to subsection 18.2(3) of the Act, on receiving a request under paragraph (9), the administrator shall consider the Notice of Motion to be an application for the variation of a support order under paragraph (2), and shall review it and ensure it is complete and forward it and any accompanying documents to the office of the Registrar.
(11)Paragraphs (4) and (8) of this subrule apply with the necessary modifications to a Notice of Motion that is converted under paragraph (10) to an application for the variation of a support order.
O.C. 2021-62
72.23Registration of Orders or Decisions made elsewhere in Canada
O.C. 2021-62
(1)If an order has been made by another court in Canada under section 15.1, 15.2, 16.1, 16.5, 17 or 19 of the Act or a decision has been made by a provincial child support service in Canada under section 25.01 or 25.1 of the Act, registration of the order or decision under section 20 of the Act may be effected by filing a certified copy accompanied by the fee prescribed under Rule 72.24 in the office of the Registrar.
(2)The certified copy referred to in paragraph (1) may be filed by forwarding it to the Registrar by ordinary mail with a written request that it be registered.
O.C. 98-337; O.C. 2021-62
72.23.1Recognition of Decisions made outside Canada
O.C. 2021-62
(1)The following definitions apply in this subrule.
competent authority means a tribunal or other entity in a jurisdiction outside Canada that has the authority to make a decision under the law of the jurisdiction respecting any subject matter that could be dealt with under the Act.
designated jurisdiction means a jurisdiction outside Canada that is designated as a reciprocating jurisdiction by regulation under the Interjurisdictional Support Orders Act.
(2)A decision of a designated jurisdiction may be registered under section 19.1 of the Act and a decision made by a competent authority may be recognized under section 22.1 of the Act by filing a certified copy of the decision accompanied by the fee prescribed under Rule 72.24 in the office of the Registrar.
(3)On receiving a decision for filing under paragraph (2), the Registrar shall forward a copy to the administrator of the Family Division in the judicial district in which the respondent habitually resides.
(4)On receiving a decision under paragraph (3), an administrator shall
(a) register it as an order of the court and send notice of the registration by registered mail to all parties who are habitually resident in New Brunswick, and
(b) file it in accordance with paragraph 5(1)(b) of the Support Enforcement Act, in the case of a decision registered under section 19.1 of the Act.
(5)A party who wishes to set aside the registration of a decision may file a Notice of Motion (Form 37A) accompanied by a supporting affidavit within 30 days after receiving notice under clause (4)(a).
(6)If a Notice of Motion to set aside a registration is filed under paragraph (5), the court may
(a) confirm the registration, or
(b) set aside the registration, if the court determines that
(i) a party did not have proper notice of the proceeding or was not afforded a reasonable opportunity to be heard in the proceeding outside Canada in which the decision was made,
(ii) the decision is contrary to public policy in New Brunswick, or
(iii) the designated jurisdiction or competent authority, as the case may be, did not have jurisdiction to make the decision.
(7)The administrator of the Family Division in the judicial district in which a decision is made under paragraph (6) shall forward a copy to the parties and to the Registrar by registered mail.
O.C. 2021-62
72.24Fees
(1)A party to a divorce proceeding shall pay to the Registrar
(a) on filing a Petition for Divorce or a Joint Petition for Divorce, a fee of $100.00, and
(b) on filing an Answer or an Answer and Counter- Petition, a fee of $20.00.
(2)The Registrar shall waive payment of a fee under paragraph (1) if
(a) the solicitor for the party certifies that remuneration for legal services in the proceeding has not been and will not be paid and payment of the fee would impose financial hardship,
(b) the solicitor for the party files a Certificate of Solicitor (Form 72FF) with the Registrar at the same time as the Petition for Divorce, Joint Petition for Divorce, Answer or Answer and Counter-Petition is filed, or
(c) the party is a recipient of assistance under the Family Income Security Act.
(2.1)Where the Registrar waives payment of a fee under paragraph (2), the administrator shall waive payment of a fee under Rule 78.01(e), (f), (g), (h), (i), (j) or (k).
(3)A party filing an order or a decision under Rule 72.23 or a decision under Rule 72.23.1 shall pay to the Registrar a fee of $5.00.
(4)A person to whom a Certificate of Divorce is issued shall pay to the Registrar a fee of $7.00.
O.C. 95-635; O.C. 2002-349; O.C. 2010-455; O.C. 2021-62
72.25Repeal
72.25Rule 72 respecting Divorce Proceedings made by the Judges of the Court of Queen’s Bench on August 28, 1981 is repealed.
72.26Commencement
72.26This Rule comes into force on September 1, 1987.
Rule 72: O.C. 87-380