Application for support of dependant
115(1)A court may, upon application, order a person to provide support for his or her dependants and, subject to subsections (1.1) to (1.6), determine the amount thereof.
115(1.1)A court making an order under subsection (1) for the support of a dependant who is a child shall do so in accordance with the regulations respecting orders for child support.
115(1.2)Notwithstanding subsection (1.1), a court may award an amount that is different from the amount that would be determined in accordance with the regulations respecting orders for child support if the court is satisfied
(a)
that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents of a child, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child, and
(b)
that the amount determined in accordance with the regulations respecting orders for child support would be an amount that is inequitable given those special provisions.
115(1.3)Where, pursuant to subsection (1.2), the court awards an amount that is different from the amount that would be determined in accordance with the regulations respecting orders for child support, the court shall record its reasons for doing so.
115(1.4)Notwithstanding subsection (1.1), on the consent of the parents of a child, a court may award an amount that is different from the amount that would be determined in accordance with the regulations respecting orders for child support if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
115(1.5)For the purposes of subsection (1.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the regulations respecting orders for child support.
115(1.6)Notwithstanding subsection (1.5), the court shall not consider the arrangements to be unreasonable because the amount of support to which the parents have consented is not the same as the amount that would otherwise have been determined in accordance with the regulations respecting orders for child support.
115(2)An application for an order for the support of a dependant may be made by the dependant or a parent of the dependant or under subsection (3).
115(3)An application for the support of a dependant may be made by the Minister, with or without the consent of the dependant, against any person liable under this Part to support that dependant if, in respect of the dependant, assistance has been applied for or has been provided under the
Social Welfare Act, or if financial support has been applied for or has been provided under this Act.
115(3.1)Repealed: 2000, c.26, s.113
115(4)Where an application has been made pursuant to subsection (3), a certificate signed or purported to be signed by the Minister stating
(a)
that a person named in the certificate is the dependant of another person named in the certificate;
(b)
that the first named person has applied for or has been provided assistance under the
Social Welfare Act;
(c)
that financial support has been applied for or has been provided under this Act;
(d)
where assistance or support has been provided, the amount of any such assistance or support; or
may be adduced in evidence without proof of the signature or appointment of the person signing it and, when so adduced, in the absence of evidence to the contrary, is proof of the facts stated therein and, where persons named in the certificate have the same name as persons who are party to the proceeding or persons in respect of whom the proceeding has been taken, that the persons named in the certificate are persons who are party to the proceeding or persons in respect of whom the proceeding has been taken.
115(5)The court may set aside a provision for support in any agreement and, subject to subsections (1.1) to (1.6), may determine and order support in an application under subsection (1) notwithstanding that the agreement contains an express provision excluding the application of this section,
(a)
where the provision for support or the exclusion of the right to support results in circumstances that are unconscionable;
(b)
where the provision for support is to a spouse who qualifies for an allowance for support out of public assistance programs; or
(c)
where there has been default in the payment of support under the agreement.
115(6)In determining the amount, if any, of support in relation to need, for a dependant who is neither a child nor a child at or over the age of majority, the court shall consider all the circumstances of the parties, including,
(a)
the assets and means of the dependant and of the respondent and any benefit or loss of benefit under a pension plan or annuity;
(b)
the capacity of the dependant to provide for his or her own support;
(c)
the capacity of the respondent to provide support;
(d)
the age and the physical and mental health of the dependant and of the respondent;
(e)
whether any physical or mental disability or other cause exists that impairs the ability of the dependant to support himself;
(f)
the length of time the dependant and respondent cohabited;
(g)
the needs of the dependant, having regard to the accustomed standard of living while the parties cohabited;
(h)
the measures available for the dependant to become financially independent and the length of time and cost involved to enable the dependant to take such measures;
(i)
the legal obligation of the respondent to provide support for any other person;
(j)
the desirability of the dependant or respondent remaining at home to care for a child;
(k)
any contribution by the dependant to the realization of the career potential of the respondent;
(l)
Repealed: 1997, c.59, s.3
(m)
Repealed: 1997, c.59, s.3
(n)
Repealed: 1997, c.59, s.3
(o)
where the dependant is a spouse, the effect on his or her earning capacity of the responsibilities assumed during cohabitation;
(p)
where the dependant is a spouse, whether the dependant spouse has undertaken the care of another dependant who is of the age of nineteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of the dependant spouse;
(q)
where the dependant is a spouse, whether the dependant spouse has undertaken to assist in the continuation of a program of education for another dependant who is of the age of nineteen years or over and unable for that reason to withdraw from the charge of the dependant spouse;
(r)
where the dependant is a spouse, any housekeeping, child care or other domestic service performed by the spouse for the family, in the same way as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings therefrom to the support of the family;
(s)
any other legal right of the dependant to support other than out of public assistance programs; and
(t)
the conduct of the parties, where such conduct unreasonably precipitates, prolongs or aggravates the need for support or unreasonably affects the ability to pay support.
115(7)For the purposes of paragraph (6)(
i), where the fulfillment by a person of any obligation to support a person pursuant to subsection 112(3) would diminish the entitlement of any person who is or was lawfully married to that person, or of any child of that marriage, to support from that person, the court, in making an order, shall, subject to section 115.1, give primacy to the obligations owed by that person to the person to whom he or she is or was lawfully married and to any child of that marriage.
1986, c.8, s.41; 1988, c.44, s.2; 1993, c.42, s.4; 1994, c.59, s.5; 1997, c.59, s.3; 1998, c.40, s.4; 2000, c.26, s.113; 2000, c.44, s.2; 2008, c.45, s.6; 2016, c.37, s.66; 2019, c.2, s.54