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Regulation number	Title
2020, c.23	Family Law Act

Under subsection 88(1) of the Family Law Act, the Lieutenant-Governor in Council makes the following Regulation:

1This Regulation may be cited as the Child Support Recalculation Service Regulation – Family Law Act.

Definitions and interpretation

2(1)The following definitions apply in this Regulation.

“Act” means the Family Law Act.(Loi)

“anniversary date” , with respect to a child support order, means the date in any year(date d’anniversaire)

(a) on which the order was made, or

(b) the Recalculation Service considers appropriate in accordance with subsection 33(5) of the Act to perform a recalculation.

“Federal Guidelines” means the Federal Guidelines as defined in the Child Support Guidelines Regulation – Family Law Act. (lignes directrices fédérales)

“party” means a payer or recipient.(partie)

“payer” means the person responsible for paying child support under a child support order.(payeur)

“recalculation” means the recalculation referred to in subsection 33(2) of the Act.(recalcul)

“Recalculation Service” means the child support service established under subsection 33(1) of the Act.(Service de recalcul)

“recipient” means the person entitled to receive child support under a child support order.(bénéficiaire)

“special or extraordinary expenses” means the expenses set out in section 7 of the Federal Guidelines.(frais spéciaux ou extraordinaires)

2(2)For the purposes of this Regulation, “child” and “child support order” have the same meanings as in section 32 of the Act.

1

REGISTRATION

Application to register child support order

3An application under subsection 34(1) of the Act shall be made on a form provided by the Recalculation Service and shall be accompanied by the following information or documentation:

(a) a copy of the child support order;

(b) if the applicant is the payer, a copy of the personal income tax return that the payer filed with the Canada Revenue Agency for the most recent taxation year or a copy of the notice of assessment or reassessment issued to the payer by the Canada Revenue Agency for that year;

(c) if the applicant is the recipient and their annual income is required to perform the recalculation, a copy of the personal income tax return that the recipient filed with the Canada Revenue Agency for the most recent taxation year or a copy of the notice of assessment or reassessment issued to the recipient by the Canada Revenue Agency for that year; and

(d) any other information or documentation required by the Recalculation Service.

Refusal to register

4(1)The Recalculation Service may refuse to register a child support order if

(a) the eligibility criteria for recalculation set out in subsection 8(1) are not met,

(b) in the opinion of the Recalculation Service, recalculation may be impracticable or too complex to perform or may, in the circumstances, produce an unjust result, or

(c) the Recalculation Service is aware that a date has been set for the Court to hear an application respecting the amount of child support specified in the child support order.

4(2)If the Recalculation Service refuses to register a child support order, the Recalculation Service shall send a notice of the refusal to register the child support order, with reasons, to the applicant.

4(3)Nothing in a child support order shall be construed so as to prevent the Recalculation Service from refusing to register the child support order in accordance with this section.

Registration of child support order

5If the Recalculation Service registers a child support order, the Recalculation Service shall send a notice of the registration to each party.

Request to withdraw child support order

6(1)A party who wants the Recalculation Service to withdraw their child support order shall send to the Recalculation Service a request to withdraw the order.

6(2)If the Recalculation Service receives a request within 60 days before the anniversary date in any year, the Recalculation Service may perform the recalculation for that year.

6(3)The Recalculation Service shall send immediately to the other party

(a) a notice advising them that the Recalculation Service received a request to withdraw the child support order, and

(b) a form to be completed and returned to the Recalculation Service indicating if they consent to the withdrawal.

6(4)The Recalculation Service shall withdraw the child support order unless, within 21 days after receiving the notice referred to in paragraph (3)(a), the party returns the form referred to in paragraph (3)(b) to the Recalculation Service and indicates on the form that they do not consent to the withdrawal.

6(5)The Recalculation Service shall send a notice of the withdrawal of a child support order to

(a) the Court, and

(b) the Office of Support Enforcement established under the Support Enforcement Act if the child support order is filed with the Director of Support Enforcement under that Act.

Re-registration

7At any time after the Recalculation Service withdraws a child support order, a party to the order may apply to register the order again.

2

RECALCULATION

Eligibility for recalculation

8(1)Any child support order made on or after May 1, 1997, is eligible for recalculation by the Recalculation Service if the following criteria are met:

(a) the parties are habitually resident in the Province;

(b) with respect to the amount of child support,

(i) the amount was not determined on the basis of section 10 of the Federal Guidelines by adjusting the amount to prevent undue hardship to a parent or child, and

(ii) if each party exercises not less than 40% of parenting time with a child over the course of a year, the amount was determined by calculating the child support payable by each party under section 9 of the Federal Guidelines and those amounts are set off against each other;

(c) in the event of a recalculation of the proportionate shares of special or extraordinary expenses to be paid by the parties,

(i) the order specifies the annual incomes of the parties, and

(ii) if the order specifies the proportionate shares of special or extraordinary expenses to be paid by the parties, the shares were calculated based on the annual incomes of the parties;

(d) with respect to the annual incomes of the parties,

(i) the annual income of each party is $150,000 or less,

(ii) no more than 20% of either party’s annual income is earned from self-employment, and

(iii) the annual income was not determined by exercising discretion, including determining the annual income on the basis of sections 17 or 19 of the Federal Guidelines; and

(e) neither party is a partner in a partnership, controls a corporation or is a beneficiary under a trust.

8(2)If, at any time after a child support order is registered, the order fails to meet any of the criteria referred to in subsection (1), the Recalculation Service shall

(a) withdraw the child support order and cease performing recalculations, and

(b) send a notice of the withdrawal of the child support order, with reasons, to

(i) the parties,

(ii) the Court, and

(iii) the Office of Support Enforcement established under the Support Enforcement Act if the child support order is filed with the Director of Support Enforcement under that Act.

Recalculation decision

9(1)A recalculation decision shall include the following information:

(a) the recalculated amount of child support and, if applicable, the recalculated proportionate shares of special or extraordinary expenses;

(b) the name and birth date of each child to whom the decision relates;

(c) any party’s annual income that is required to perform the recalculation and, if the annual income is deemed for the purpose of recalculation, the manner in which the deemed annual income was determined;

(d) the calculations on which the decision is based;

(e) the effective date of the decision;

(f) the day of the month or other time period on which child support payments are to be made; and

(g) the right of each party to make an application to the Court under subsection 42(1) of the Act.

9(2)For the purposes of subsection 38(2) of the Act, if the amount of child support would increase or decrease by less than $5 per month, the recalculation decision shall include the following information:

(a) a statement indicating that the amount of child support remains unchanged and is effective until the next recalculation;

(b) the recalculated proportionate shares of special or extraordinary expenses, if applicable;

(c) the name and birth date of each child to whom the decision relates;

(d) any party’s annual income that is required to perform the recalculation;

(e) the calculations on which the decision is based;

(f) the effective date of the decision;

(g) the day of the month or other time period on which child support payments are to be made; and

(h) the right of each party to make an application to the Court under subsection 42(1) of the Act.

Refusal to perform recalculation

10(1)The Recalculation Service shall refuse to perform a recalculation if

(a) the Recalculation Service is not satisfied that both parties know of the registration of the child support order with the Recalculation Service, or

(b) the Recalculation Service is aware that a date has been set for the Court to hear an application respecting the amount of child support specified in the child support order.

10(2)The Recalculation Service may refuse to perform a recalculation if

(a) a party whose annual income is required to perform the recalculation fails to provide to the Recalculation Service the updated financial or other information or documentation referred to in subsection 24(2), or

(b) in the opinion of the Recalculation Service, recalculation may be impracticable or too complex to perform or may, in the circumstances, produce an unjust result.

10(3)If the Recalculation Service refuses to perform a recalculation under subsection (1) or (2), the Recalculation Service shall send a notice of the refusal to perform the recalculation, with reasons, to

(a) the parties,

(b) the Court, and

(c) the Office of Support Enforcement established under the Support Enforcement Act if the child support order is filed with the Director of Support Enforcement under that Act.

10(4)Nothing in a child support order shall be construed so as to prevent the Recalculation Service from refusing to perform a recalculation under this section.

Determination of deemed income

11For the purposes of subsections 44(2) and 46(5) of the Act, the deemed income is the income used to determine the amount of child support specified in the most recent child support order plus:

(a) 10% of that income, if fewer than two years have elapsed since that order;

(b) 15% of that income, if two years or more but fewer than five years have elapsed since that order;

(c) 20% of that income, if five years or more but fewer than 10 years have elapsed since that order; or

(d) 30% of that income, if 10 years or more have elapsed since that order.

Corrections

12For the purposes of subsection 40(1) of the Act, a corrected decision shall take effect on the date the original recalculation decision would have taken effect if there had been no error.

Waive recalculation

13The Recalculation Service shall waive a recalculation if the parties provide a notice to the Recalculation Service of their agreement to waive the recalculation at least 90 days before the anniversary date.

Variation order

14If the Court makes an order varying the amount of child support or the proportionate shares of any special or extraordinary expenses in a child support order that is registered with the Recalculation Service, either party shall, as soon as the circumstances permit, provide a copy of the variation order to the Recalculation Service and the order is deemed to be registered when the order is received by the Recalculation Service.

Order re special or extraordinary expenses

15(1)If the Court makes a child support order that deals exclusively with the proportionate shares of special or extraordinary expenses with respect to a child for whom a child support order is registered with the Recalculation Service, either party shall provide a copy of the order relating to special or extraordinary expenses to the Recalculation Service and the order is deemed to be registered when the order is received by the Recalculation Service.

15(2)If the child support order that is deemed to be registered under subsection (1) meets the criteria set out in subsection 8(1), the Recalculation Service may perform a recalculation of the proportionate shares of special or extraordinary expenses at the same time as the Recalculation Service recalculates the amount of child support specified in the original child support order and make one recalculation decision.

Prospective recalculation

16Subject to section 12, any recalculated amount of child support or recalculated proportionate share of special or extraordinary expenses is payable on a prospective basis only and no consideration shall be given to any amount of child support or special or extraordinary expenses that may be owing to a party at the time of the recalculation.

Recalculation – no impact on other provisions of child support order

17A recalculation does not affect the validity of any other provision of a child support order.

3

DISCLOSURE OF INFORMATION

Prescribed information

18The following information is prescribed for the purposes of paragraph 46(1)(d) of the Act:

(a) a party’s contact information;

(b) a party’s date of birth; and

(c) a party’s social insurance number.

Purpose of disclosure

19For the purposes of paragraph 47(2)(b) of the Act, the authorized purposes for disclosure of information are as follows:

(a) to facilitate enforcement of a support order under the Support Enforcement Act;

(b) to facilitate service of an application to vary a support order under the Act, the Interjurisdictional Support Orders Act or the Divorce Act (Canada);

(c) as required by law;

(d) to respond to a complaint made to the Ombud or to facilitate an investigation by the Ombud;

(e) to facilitate an investigation related to the enforcement of an enactment;

(f) to protect the health, safety or security of the public or of an individual;

(g) to respond to an inquiry or complaint made to the Minister;

(h) to assist a law enforcement agency;

(i) to facilitate a trial, hearing or proceeding in the Family Division of the Court; and

(j) to comply with a summons, subpoena, warrant or other order issued or made by a court, person or body with jurisdiction to compel the production of information or with the Rules of Court concerning the production of information.

Disclosure of information to party

20For the purposes of paragraph 47(2)(b) of the Act, information may be disclosed, without the consent of a party, to the other party for the following purposes:

(a) to explain the reasons for refusing to register a child support order;

(b) to explain the reasons for refusing to perform a recalculation; and

(c) to facilitate an application made under subsection 42(1) of the Act.

Disclosure of information to party’s representative

21Information that may be disclosed to a party may also be disclosed to

(a) any person with written authorization from the party to act on the party’s behalf,

(b) the parent or guardian of a minor who is a party if, in the opinion of the Recalculation Service, the disclosure would not constitute an unreasonable invasion of the minor’s privacy,

(c) an attorney acting under a power of attorney granted by the party, if the disclosure relates to the powers and duties conferred by the power of attorney,

(d) if the party is deceased, the party’s personal representative if the disclosure relates to the administration of the party’s estate, or

(e) a representative appointed for the party under the Supported Decision-Making and Representation Act, if the disclosure relates to the powers and duties conferred by the appointment.

2022, c.60, s.71

4

GENERAL

Notice of withdrawal of application

22A notice under subsection 42(5) of the Act shall be provided within 7 days after the application is withdrawn.

Contact information

23(1)For the purposes of section 45 of the Act, a party’s contact information includes:

(a) the party’s mailing address, e-mail address, residential telephone number, cell phone number and fax number; and

(b) any other information that would facilitate oral or written communication from the Recalculation Service to the party.

23(2)A party shall provide their contact information to the Recalculation Service within 30 days after

(a) the party receives notice of registration of the party’s child support order,

(b) the party’s contact information changes, or

(c) the party receives a request for contact information from the Recalculation Service.

Financial information

24(1)A party whose annual income is necessary to perform a recalculation shall provide their updated financial or other information or documentation referred to in subsection (2) to the Recalculation Service at least 90 days before the anniversary date.

24(2)For the purposes of subsection 44(1) of the Act, updated financial or other information or documentation is

(a) a copy of the personal income tax return that the party filed with the Canada Revenue Agency for the most recent taxation year or a copy of the notice of assessment or reassessment issued to the party by the Canada Revenue Agency for that year, and

(b) any other information or documentation that is necessary to determine or verify the party’s annual income.

Provision of information to Recalculation Service

25A party who is required to provide information or documentation to the Recalculation Service shall do so in the following manner:

(a) in the case of their contact information, by telephone, ordinary mail, registered mail, prepaid courier or by any form of electronic transmission approved by the Recalculation Service; and

(b) in the case of any other information or documentation, by ordinary mail, registered mail, prepaid courier or by any form of electronic transmission approved by the Recalculation Service.

Notice to party

26(1)The Recalculation Service shall send a notice, information or documentation to a party in the following manner:

(a) if the party has requested to be notified by electronic means,

(i) by e-mail or fax to the party’s last known e-mail address, fax number or other electronic address, or

(ii) through a website maintained by the Recalculation Service for that purpose; or

(b) by regular mail to the last known address of the party.

26(2)A notice, information or documentation shall be deemed to have been received 10 days after the date on which the notice, information or documentation was sent.

Confirmation of annual income

27When making a recalculation decision under subsection 38(1) of the Act or a corrected decision under subsection 40(1) of the Act, the Recalculation Service may, in order to assist in the determination of a party’s annual income or to confirm a party’s annual income, communicate directly with the party or any other person who may provide information pertinent to the decision.

Child support order – mandatory clauses

28(1)For the purposes of section 36 of the Act, the Court shall include, subject to subsection (2), the following clause in a child support order:

This Order may be subject to recalculation by the New Brunswick Child Support Recalculation Service if the New Brunswick Child Support Recalculation Service determines that recalculation is permissible and appropriate under the Family Law Act and the Child Support Recalculation Service Regulation under that Act. If a party fails to comply with the income disclosure requirements of the New Brunswick Child Support Recalculation Service, the party’s income may be deemed to have increased as set out in the Child Support Recalculation Service Regulation.

28(2)If the Court determines that a recalculation would be inappropriate, the Court shall include the following clause in the child support order:

This Order shall not be subject to recalculation by the New Brunswick Child Support Recalculation Service.

28(3)Any child support order that does not include a clause set out in subsection (1) or (2) is deemed to include the clause set out in subsection (1).

5

CONSEQUENTIAL AMENDMENT, TRANSITIONAL PROVISION AND COMMENCEMENT

Regulation under the Support Enforcement Act

29Subsection 16(1) of New Brunswick Regulation 2008-15 under the Support Enforcement Act is amended by adding after paragraph (b) the following:

(b.1) to facilitate a recalculation under the Family Law Act;

Transitional provision

30 A recalculation under this Regulation may be made in respect of a child support order made under the Divorce Act (Canada) only on and after the day an agreement described in subsection 25.1(1) of that Act between the Government of New Brunswick and the Government of Canada takes effect.

Commencement

31This Regulation comes into force on April 1, 2022.

N.B. This Regulation is consolidated to January 1, 2024.

2022-11 - Child Support Recalculation Service

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