Acts and Regulations

2016, c.102 - Interjurisdictional Support Orders Act

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Full text
Current to 1 January 2024
2016, c.102
Interjurisdictional Support Orders Act
2020, c.24, s.7
Deposited December 23, 2016
Definitions
1The following definitions apply in this Act.
“appropriate authority” , when used with reference to a reciprocating jurisdiction, means a person in that jurisdiction who corresponds to a designated authority. (autorité compétente)
“Attorney General” includes a person authorized in writing by the Attorney General to act for him or her in the performance of a power or duty under this Act. (procureur général)
“certified copy” means, in relation to a document of a court, the original or a copy of the document certified by the original or facsimile signature of a proper officer of the court to be a true copy. (copie certifiée conforme)
“claimant” means a person who applies under this Act for support. (demandeur)
“court administrator” means a person appointed as an administrator under section 68 of the Judicature Act. (administrateur de la cour)
“designated authority” means a person appointed under subsection 35(1) and includes a person to whom a power or duty is delegated under subsection 35(2). (autorité désignée)
“former Act” means the Reciprocal Enforcement of Maintenance Orders Act, chapter R-4.01 of the Acts of New Brunswick, 1985. (ancienne loi)
“interjurisdictional application” means a support application, a support variation application or a request to register an extra-provincial or foreign order under this Act.(demande interterritoriale)
“New Brunswick court” means a court designated under section 2. (tribunal du Nouveau-Brunswick)
“prescribed” means prescribed by regulation.
“provisional order” means(ordonnance conditionnelle)
(a) a support order made by a New Brunswick court that has no force or effect until confirmed by a court in a reciprocating jurisdiction, or
(b) a support order made in a reciprocating jurisdiction that is received for confirmation in New Brunswick.
“provisional order of variation” means(ordonnance modificative conditionnelle)
(a) an order made by a New Brunswick court for variation of a support order that has no force or effect until confirmed by a court in a reciprocating jurisdiction, or
(b) an order made in a reciprocating jurisdiction for variation of a support order that is received for confirmation in New Brunswick.
“reciprocating jurisdiction” means a jurisdiction designated by regulation as a reciprocating jurisdiction. (État pratiquant la réciprocité)
“request to locate” means a written request to locate a person for the purpose of facilitating a proceeding relating to the establishment, variation, registration or enforcement of a support order.(demande de recherche d’une personne)
“support” includes support, maintenance and alimony. (soutien)
“support order” means an order or interim order, made by a court or by an administrative body, that requires the payment of support, and includes(ordonnance alimentaire)
(a) 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 or administrative body of that jurisdiction, and
(b) the recalculation by an administrative body of the payment of support for a child if the recalculation is enforceable in the jurisdiction in which the recalculation was made as if it were an order of, or were contained in an order of, a court of that jurisdiction.
2002, c.I-12.05, s.1; 2005, c.S-15.5, s.57; 2020, c.24, s.7
Designation of court
2The Attorney General may designate a court or courts in New Brunswick for the purpose of proceedings under this Act.
2002, c.I-12.05, s.2
1
CLAIMS IF NO ORDER EXISTS
Definition of “respondent”
3In this Part, “respondent” means a person from whom support is sought.
2002, c.I-12.05, s.3; 2020, c.24, s.7
Application
4This Part applies only if there is no support order in effect that requires a proposed respondent to pay support for either or both of the following:
(a) a proposed claimant; or
(b) any child for whom support is proposed to be claimed.
2002, c.I-12.05, s.4; 2020, c.24, s.7
Division A
Claimant Resident in
New Brunswick
2020, c.24, s.7
Support application
2020, c.24, s.7
5(1)If a proposed claimant resides in New Brunswick and believes that the proposed respondent habitually resides in a reciprocating jurisdiction, the proposed claimant may commence a proceeding in New Brunswick that may result in a support order being made in the reciprocating jurisdiction.
5(2)To commence a proceeding referred to in subsection (1), a claimant shall complete a support application in the prescribed form that includes the following:
(a) the claimant’s name and address for service;
(b) a copy of the statutory or other legal authority on which the application is based, unless the claimant is relying on the law of the jurisdiction where the respondent habitually resides;
(c) the amount and nature of the support claimed;
(d) an affidavit setting out the following:
(i) the respondent’s name and any other information known to the claimant that may be used to locate or identify the respondent;
(ii) the respondent’s financial circumstances, to the extent they are known to the claimant;
(iii) the name of each person for whom support is claimed;
(iv) the date of birth of any child for whom support is claimed;
(v) the evidence relevant to establishing the entitlement to and the amount of support, including
(A) if support is claimed for a child, details of the child’s parentage and information regarding the child’s financial and other circumstances, and
(B) if support is claimed for the claimant, information regarding the claimant’s financial and other circumstances and information regarding his or her relationship with the respondent; and
(vi) any other prescribed information; and
(e) any other prescribed information or documents.
5(3)A claimant is not required to notify a respondent that a proceeding has been commenced under this section.
2002, c.I-12.05, s.5; 2020, c.24, s.7
Submission of application to designated authority
6(1)A claimant shall submit a support application in the prescribed manner to a designated authority in New Brunswick, along with a certified translation of the application if one is required by the appropriate authority in the reciprocating jurisdiction in which the claimant believes the respondent habitually resides.
6(2)On receiving a support application, a designated authority shall
(a) review the application to ensure that it is complete, and
(b) forward a copy of the completed application to an appropriate authority in the reciprocating jurisdiction in which the claimant believes the respondent habitually resides.
6(3)On receiving a request for further information or documents from an appropriate authority in a reciprocating jurisdiction under a provision of an enactment that corresponds to paragraph 10(2)(a), a claimant shall provide the information or documents within the time referred to in the request and in the prescribed manner to a court administrator who shall forward the information or documents to the appropriate authority in the reciprocating jurisdiction.
6(4)On receiving a certified copy of an order and reasons, if any, from an appropriate authority in a reciprocating jurisdiction under a provision of an enactment that corresponds to section 15, a designated authority shall, in the prescribed manner, provide the New Brunswick court with two copies of the order and reasons, if any.
6(5)When a New Brunswick court receives copies of an order and reasons, if any, under subsection (4), the court administrator shall forward one copy to the claimant in the prescribed manner.
2002, c.I-12.05, s.6; 2020, c.24, s.7
Provisional order
7(1)If a claimant believes that a respondent habitually resides in a reciprocating jurisdiction that requires a provisional order, a New Brunswick court may, on the claimant’s application and without notice to the respondent, make a provisional order that takes into account the legal authority on which the support application is based.
7(2)Evidence in a proceeding under subsection (1) may be given orally, in writing or as the New Brunswick court may allow.
7(3)If a New Brunswick court makes a provisional order, the designated authority shall forward to an appropriate authority in the reciprocating jurisdiction
(a) the support application submitted under subsection 6(1),
(b) a certified transcript of any oral evidence, and
(c) three certified copies of the provisional order.
7(4)If, during a proceeding to confirm a provisional order, a court in a reciprocating jurisdiction remits the matter to the New Brunswick court for further evidence, the New Brunswick court shall, after giving notice to the claimant, receive further evidence.
7(5)If evidence is received under subsection (4), the court administrator shall forward to the court in the reciprocating jurisdiction
(a) a certified transcript of any oral evidence,
(b) a certified copy of any documentary evidence, and
(c) if the New Brunswick court modifies its provisional order, three certified copies of the modified provisional order.
7(6)If a court in a reciprocating jurisdiction refuses to confirm a provisional order in respect of one or more persons for whom support is sought, the New Brunswick court that made the provisional order may, on application by the claimant within six months after the refusal,
(a) reopen the matter,
(b) receive further evidence, and
(c) make a new provisional order for a person in respect of whom confirmation of the original order was refused.
2002, c.I-12.05, s.7; 2020, c.24, s.7
Division B
Claimant Resident Outside
New Brunswick
2020, c.24, s.7
Definition of “support application”
2020, c.24, s.7
8In this Division, “support application” means
(a) a provisional order referred to in paragraph (b) of the definition “provisional order” in section 1, or
(b) a document from a reciprocating jurisdiction that corresponds to a support application described in subsection 5(2).
2002, c.I-12.05, s.8; 2020, c.24, s.7
Notice of hearing
9(1)If a designated authority receives a support application from an appropriate authority in a reciprocating jurisdiction containing information that the named respondent habitually resides in New Brunswick, the designated authority shall serve on the respondent, in the prescribed manner,
(a) a copy of the support application, and
(b) a notice requiring the respondent
(i) to appear at a place and time set out in the notice, and
(ii) to provide any prescribed information or documents.
9(2)If a designated authority is unable to serve a respondent under subsection (1) and knows or believes that the respondent habitually resides in another reciprocating jurisdiction in Canada, the designated authority shall
(a) forward the support application to the appropriate authority in that reciprocating jurisdiction, and
(b) notify the appropriate authority in the originating reciprocating jurisdiction that he or she has forwarded the support application.
9(3)If a designated authority is unable to serve a respondent under subsection (1) and either is unable to determine where the respondent resides or knows or believes that the respondent habitually resides outside Canada, the designated authority shall return the support application to the appropriate authority in the originating reciprocating jurisdiction, along with any information that he or she has concerning the respondent’s location and circumstances.
2002, c.I-12.05, s.9; 2020, c.24, s.7
Information to be considered
10(1)When considering a support application, a New Brunswick court shall take into consideration
(a) the evidence given or submitted to it, and
(b) the documents received from the reciprocating jurisdiction.
10(2)If a New Brunswick court requires further information or documents from a claimant to make a support order, the New Brunswick court shall
(a) direct the court administrator to request that an appropriate authority in the reciprocating jurisdiction request the information or documents from the claimant, and
(b) adjourn the hearing.
10(3)When acting under subsection (2), a New Brunswick court may also make an interim support order.
10(4)If a New Brunswick court does not receive information or documents requested under subsection (2) within one year after the request is made, the court may dismiss the support application and terminate any interim support order made under subsection (3).
10(5)The dismissal of a support application under subsection (4) does not preclude a claimant from commencing a new proceeding under this Act.
2002, c.I-12.05, s.10; 2020, c.24, s.7
Parentage
11(1)A New Brunswick court may determine the parentage of a child if
(a) it is in issue in a hearing under this Part, and
(b) a court of competent jurisdiction in Canada has not made a previous determination of the issue.
11(2)Subject to subsection (3), a determination of parentage under this section has effect only for the purpose of proceedings under this Act.
11(3)A New Brunswick court may make a determination of parentage that has the same effect as a declaratory order made under section 100 of the Family Services Act if the court is satisfied that it is appropriate to do so, having regard to all the circumstances of the case, including the nature and quality of the evidence presented.
11(4)Sections 100 to 110 of the Family Services Act apply to a determination under subsection (3).
2002, c.I-12.05, s.11
Choice of law
12(1)When determining a claimant’s entitlement to support for a child, a New Brunswick court shall apply the law of New Brunswick, but if under that law the claimant is not entitled to support, the New Brunswick court shall apply the law of the jurisdiction in which the child habitually resides.
12(2)When determining the amount of support to be provided for a child, a New Brunswick court shall apply the law of New Brunswick.
12(3)When determining a claimant’s entitlement to support for himself or herself and the amount of that support, a New Brunswick court shall apply the law of New Brunswick, but if under that law the claimant is not entitled to support, the New Brunswick court shall apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence.
2002, c.I-12.05, s.12; 2020, c.24, s.7
Orders
13(1)At the conclusion of a hearing under this Division, a New Brunswick court may, with respect to a claimant, a child or both,
(a) make a support order,
(b) make an interim support order and adjourn the hearing to a specified date,
(c) adjourn the hearing to a specified date without making an interim support order, or
(d) dismiss the support application.
13(1.1)An order made under this section shall specify the law applied under section 12, but if an order does not do so, the law applied shall be deemed to be the law of New Brunswick.
13(2)A New Brunswick court may make a retroactive support order.
13(3)A New Brunswick court may make a support order requiring support to be paid periodically, as a lump sum or both.
13(4)If a New Brunswick court dismisses a support application, the court shall give reasons for its order.
2002, c.I-12.05, s.13; 2020, c.24, s.7
Order if notice not complied with
14(1)If a respondent does not appear or does not provide information or documents as required in a notice under paragraph 9(1)(b), a New Brunswick court may make an order in the absence of the respondent, information or documents and, in making the order, may draw any inference it considers appropriate.
14(2)If a New Brunswick court makes an order under subsection (1), the court administrator shall forward a copy of the order to the respondent in the prescribed manner.
2002, c.I-12.05, s.14
Forwarding order to reciprocating jurisdiction
15As soon as practicable after receiving an order made under this Division, a court administrator shall forward a certified copy of the order and any reasons to the appropriate authority in the reciprocating jurisdiction that forwarded the claimant’s support application.
2002, c.I-12.05, s.15; 2020, c.24, s.7
2
REGISTRATION AND ENFORCEMENT OF
ORDERS MADE OUTSIDE NEW BRUNSWICK
Definitions
16The following definitions apply in this Part.
“extra-provincial order” means a support order, or an interim support order or an order that varies a support order, made in a reciprocating jurisdiction in Canada, but does not include a provisional order or a provisional order of variation.(ordonnance extraprovinciale)
“foreign order” means a support order, or an interim support order or an order that varies a support order, made in a reciprocating jurisdiction outside Canada, but does not include a provisional order or a provisional order of variation. (ordonnance étrangère)
2002, c.I-12.05, s.16; 2020, c.24, s.7
Receipt of order in New Brunswick
17(1)To register an extra-provincial order or a foreign order in New Brunswick, an appropriate authority in a reciprocating jurisdiction shall forward a certified copy of the order to a designated authority in New Brunswick.
17(2)On receiving an order under subsection (1), a designated authority shall forward a copy of the order, in the prescribed manner, to the court administrator in the judicial district in which the designated authority reasonably believes that the respondent habitually resides.
17(2.1)Despite subsection (2), if no party to an order resides in New Brunswick, a designated authority shall forward a copy of the order, in the prescribed manner, to the court administrator in the judicial district in which the designated authority reasonably believes that the party liable to pay support has property or a source of income.
17(3)A party to an extra-provincial order or a foreign order who habitually resides in New Brunswick may register the order in New Brunswick by providing a certified copy of the order to the court administrator in the judicial district in which the party resides.
2002, c.I-12.05, s.17; 2020, c.24, s.7
Registration of order
18(1)On receiving an order under subsection 17(2), (2.1) or (3), a court administrator shall register it as an order of the New Brunswick court.
18(2)An order registered under subsection (1) has the same effect as a support order made by a court in New Brunswick.
18(3)An order registered under subsection (1) may be, with respect to arrears accrued before its registration and obligations accruing after its registration,
(a) enforced in the same manner as a support order made by a court in New Brunswick, and
(b) varied in accordance with this Act.
18(4)An order registered under subsection (1) shall be filed by a court administrator in accordance with paragraph 5(1)(b) of the Support Enforcement Act.
18(5)The provisions of the Support Enforcement Act apply with the necessary modifications to the enforcement of an order filed under subsection (4).
18(6)The duration of the support obligation set out in an order referred to in subsection (1) shall be governed by the law under which the order was made.
18(7)The onus shall be on the appropriate authority of the reciprocating jurisdiction to provide proof of the law governing the duration of the support obligation to the satisfaction of the designated authority.
18(8)Despite subsection (7), if the designated authority is unable to determine the duration of the support obligation under the law specified, the designated authority shall apply the law of New Brunswick to determine the duration of the support obligation.
2002, c.I-12.05, s.18; 2005, c.S-15.5, s.57; 2020, c.24, s.7
Foreign orders
19(1)After the registration of a foreign order under section 18, a court administrator shall, in the manner prescribed, notify all parties to the order who the court administrator reasonably believes habitually reside in New Brunswick of the order’s registration.
19(1.1)If the parties to an order reside outside New Brunswick, the designated authority shall notify the party liable to pay support of the registration of the foreign order under section 18 by ordinary mail at the latest known address of the party as provided by the appropriate authority in the reciprocating jurisdiction.
19(2)Within 30 days after receiving notification under subsection (1), a party to a foreign order may, after giving notice in the prescribed manner, apply to a New Brunswick court to set aside the registration of the order.
19(3)In determining an application under subsection (2), a New Brunswick court may
(a) confirm the registration, or
(b) set aside the registration if it determines that
(i) in the proceeding in which the foreign order was made, a party to the order did not have proper notice of the proceeding or was not afforded a reasonable opportunity to be heard,
(ii) the foreign order is contrary to public policy in New Brunswick, or
(iii) the court that made the foreign order did not have jurisdiction to make the order.
19(4)If a New Brunswick court sets aside a registration under paragraph (3)(b), it shall give reasons for its decision.
19(5)For the purposes of subparagraph (3)(b)(iii), a court has jurisdiction if, at the time the order was made,
(a) all the parties to the order were habitually resident in the reciprocating jurisdiction, or
(b) a party, who was not habitually resident in the reciprocating jurisdiction, was subject to the jurisdiction of the court, if a New Brunswick court considers that court has the jurisdiction in accordance with the law of New Brunswick.
19(6)Any decision or order of a New Brunswick court under this section shall be provided to the parties and to the designated authority in the prescribed manner.
2002, c.I-12.05, s.19; 2020, c.24, s.7
Effect of setting aside
20(1)If the registration of a foreign order is set aside, the order shall, at the request of the party seeking to register the order, be dealt with under this Act as if it were a support application received under subsection 9(1) or a support variation application received under subsection 27(1), as the case may be.
20(2)If a foreign order does not include the information or documents required for a support application or a support variation application, the court administrator shall request them from an appropriate authority in the reciprocating jurisdiction that made the order, and no proceedings shall be continued under this Act until the court administrator receives the requested material.
2002, c.I-12.05, s.20; 2020, c.24, s.7
3
VARIATION OF SUPPORT ORDERS
2020, c.24, s.7
Definitions
21The following definitions apply in this Part.
“applicant” means a party who applies to vary a support order.(requérant)
“respondent” means a party who is a respondent in an application to vary a support order.(défendeur)
“support order” means a support order that is made in New Brunswick or a support order that is made in a reciprocating jurisdiction and registered under subsection 18(1) or the former Act, but does not include a provisional order or a provisional order of variation.(ordonnance de soutien)
2002, c.I-12.05, s.21; 2020, c.24, s.7
Restriction
22Nothing in this Part permits the variation of a support order originally made under the Divorce Act (Canada) unless it is authorized by a federal enactment.
2002, c.I-12.05, s.22; 2020, c.24, s.7
Division A
Applicant Resident in
New Brunswick
2020, c.24, s.7
Application to vary
23(1)If a proposed applicant resides in New Brunswick and believes that the proposed respondent habitually resides in a reciprocating jurisdiction, the proposed applicant may commence a proceeding in New Brunswick that may result in a support order being varied in the reciprocating jurisdiction.
23(2)To commence a proceeding referred to in subsection (1), an applicant shall complete a support variation application in the prescribed form that includes the following:
(a) the applicant’s name and address for service;
(b) a certified copy of the support order;
(c) a copy of the statutory or other legal authority on which the application is based, unless the applicant is relying on the law of the jurisdiction where the respondent habitually resides;
(d) the particulars of the variation applied for, which may include termination of the support order;
(e) an affidavit setting out the following:
(i) the respondent’s name and any other information known to the applicant that may be used to locate or identify the respondent;
(ii) the respondent’s financial circumstances, to the extent they are known to the applicant, including whether he or she is receiving social assistance;
(iii) the name of each person, to the extent known to the applicant,
(A) for whom support is payable, or
(B) who will be affected if the variation is granted;
(iv) the evidence in support of the application, including
(A) if support paid for a child may be affected, information regarding the child’s financial and other circumstances, and
(B) if support paid for the applicant or respondent may be affected, information regarding the applicant’s relationship with the respondent; and
(v) the prescribed information regarding the applicant’s financial circumstances; and
(f) any other prescribed information or documents.
23(3)An applicant is not required to notify a respondent that a proceeding has been commenced under this section.
2002, c.I-12.05, s.23; 2020, c.24, s.7
Submission of application to designated authority
24(1)An applicant shall submit a support variation application in the prescribed manner to a designated authority in New Brunswick, along with a certified translation of the application if one is required by the appropriate authority in the reciprocating jurisdiction in which the applicant believes the respondent habitually resides.
24(2)On receiving a support variation application, a designated authority shall
(a) review the application to ensure that it is complete, and
(b) forward a copy of the completed application to an appropriate authority in the reciprocating jurisdiction in which the applicant believes the respondent habitually resides.
24(3)On receiving a request for further information or documents from an appropriate authority in a reciprocating jurisdiction under a provision of an enactment that corresponds to paragraph 28(2)(a), an applicant shall provide the information or documents within the time referred to in the request and in the prescribed manner to a court administrator who shall forward the information or documents to the appropriate authority in the reciprocating jurisdiction.
24(4)On receiving a certified copy of an order and reasons, if any, from an appropriate authority in a reciprocating jurisdiction under a provision of an enactment that corresponds to section 32, a designated authority shall, in the prescribed manner, provide the New Brunswick court with two copies of the order and reasons, if any.
24(5)When a New Brunswick court receives copies of an order and reasons, if any, under subsection (4), the court administrator shall forward one copy to the applicant in the prescribed manner.
2002, c.I-12.05, s.24; 2020, c.24, s.7
Provisional order of variation
25(1)If an applicant believes that a respondent habitually resides in a reciprocating jurisdiction that requires a provisional order of variation, a New Brunswick court may, on application by the applicant and without notice to the respondent, make a provisional order of variation that takes into account the legal authority on which the support variation application is based.
25(2)Evidence in a proceeding under subsection (1) may be given orally, in writing or as the New Brunswick court may allow.
25(3)If a New Brunswick court makes a provisional order of variation, the designated authority shall forward to an appropriate authority in the reciprocating jurisdiction
(a) the support variation application submitted under subsection 24(1),
(b) a certified transcript of any oral evidence, and
(c) three certified copies of the provisional order of variation.
25(4)If, during a proceeding to confirm a provisional order of variation, a court in a reciprocating jurisdiction remits the matter to the New Brunswick court for further evidence, the New Brunswick court shall, after giving notice to the applicant, receive further evidence.
25(5)If evidence is received under subsection (4), the court administrator shall forward to the court in the reciprocating jurisdiction
(a) a certified transcript of any oral evidence,
(b) a certified copy of any documentary evidence, and
(c) if the New Brunswick court modifies its provisional order of variation, three certified copies of the modified provisional order of variation.
25(6)If a court in a reciprocating jurisdiction refuses to confirm a provisional order of variation in respect of one or more persons for whom the variation is sought, the New Brunswick court that made the provisional order of variation may, on application by the applicant within six months after the refusal,
(a) reopen the matter,
(b) receive further evidence, and
(c) make a new provisional order of variation for a person in respect of whom confirmation of the original order was refused.
2002, c.I-12.05, s.25; 2020, c.24, s.7
Division B
Applicant Resident Outside
New Brunswick
2020, c.24, s.7
Definition of “support variation application”
2020, c.24, s.7
26In this Division, “support variation application” means
(a) a provisional order of variation referred to in paragraph (b) of the definition “provisional order of variation” in section 1, or
(b) a document from a reciprocating jurisdiction that corresponds to a support variation application described in subsection 23(2).
2002, c.I-12.05, s.26; 2020, c.24, s.7
Notice of hearing
27(1)If a designated authority receives a support variation application from an appropriate authority in a reciprocating jurisdiction containing information that the named respondent habitually resides in New Brunswick, the designated authority shall serve on the respondent, in the prescribed manner,
(a) a copy of the support variation application, and
(b) a notice requiring the respondent
(i) to appear at a place and time set out in the notice, and
(ii) to provide any prescribed information or documents.
27(2)If a designated authority is unable to serve a respondent under subsection (1) and knows or believes that the respondent habitually resides in another reciprocating jurisdiction in Canada, the designated authority shall
(a) forward the support variation application to the appropriate authority in that reciprocating jurisdiction, and
(b) notify the appropriate authority in the originating reciprocating jurisdiction that he or she has forwarded the support variation application.
27(3)If a designated authority is unable to serve a respondent under subsection (1) and either is unable to determine where the respondent resides or knows or believes that the respondent habitually resides outside Canada, the designated authority shall return the support variation application to an appropriate authority in the originating reciprocating jurisdiction, along with any information that he or she has concerning the respondent’s location and circumstances.
2002, c.I-12.05, s.27; 2020, c.24, s.7
Information to be considered
28(1)When considering a support variation application, a New Brunswick court shall take into consideration
(a) the evidence given or submitted to it, and
(b) the documents received from the reciprocating jurisdiction.
28(2)If a New Brunswick court requires further information or documents from an applicant to make a support variation order, the New Brunswick court shall
(a) direct the court administrator to request that an appropriate authority in the reciprocating jurisdiction request the information or documents from the applicant, and
(b) adjourn the hearing.
28(3)When acting under subsection (2), a New Brunswick court may also make an interim support variation order.
28(4)If a New Brunswick court does not receive information or documents requested under subsection (2) within one year after the request is made, the court may dismiss the support variation application and terminate any interim support variation order made under subsection (3).
28(5)The dismissal of a support variation application under subsection (4) does not preclude an applicant from commencing a new proceeding under this Division.
2002, c.I-12.05, s.28; 2020, c.24, s.7
Choice of law
29(1)When determining a party’s entitlement to receive or continue receiving support for a child, a New Brunswick court shall apply the law of New Brunswick, but if under that law the party is not entitled to support, the New Brunswick court shall apply the law of the jurisdiction in which the child habitually resides.
29(2)When determining the amount of support to be provided for a child, a New Brunswick court shall apply the law of New Brunswick, including, for greater certainty, the applicable table under the Child Support Guidelines Regulation – Family Law Act.
29(3)When determining a party’s entitlement to receive or continue receiving support for himself or herself and the amount of that support, a New Brunswick court shall apply the law of New Brunswick, but if under New Brunswick law the party is not entitled to support, the court shall apply
(a) the law of the jurisdiction in which the party habitually resides, or
(b) if the party is not entitled to support under the law of the jurisdiction referred to in paragraph (a), the law of the jurisdiction in which the applicant and the respondent last maintained a common habitual residence.
2002, c.I-12.05, s.29; 2020, c.24, s.7
Orders
30(1)At the conclusion of a hearing under this Division, a New Brunswick court may, with respect to a party, a child or both,
(a) make a support variation order,
(b) make an interim support variation order and adjourn the hearing to a specified date,
(c) adjourn the hearing to a specified date without making an interim support variation order, or
(d) dismiss the support variation application.
30(2)A New Brunswick court may make a retroactive support variation order.
30(3)A New Brunswick court may make a support variation order requiring support to be paid periodically, as a lump sum or both.
30(4)If a New Brunswick court dismisses a support variation application, the court shall give reasons for its order.
2002, c.I-12.05, s.30; 2020, c.24, s.7
Order if notice not complied with
31(1)If a respondent does not appear or does not provide information or documents as required in a notice under paragraph 27(1)(b), a New Brunswick court may make an order in the absence of the respondent, information or documents and, in making the order, may draw any inference it considers appropriate.
31(2)If a New Brunswick court makes an order under subsection (1), the court administrator shall forward a copy of the order to the respondent in the prescribed manner.
2002, c.I-12.05, s.31
Forwarding order to reciprocating jurisdiction
32As soon as practicable after receiving an order made under this Division, a court administrator shall forward a certified copy of the order and any reasons to
(a) an appropriate authority in the reciprocating jurisdiction in which the applicant resides, and
(b) if the original support order was made in another reciprocating jurisdiction, to an appropriate authority in that jurisdiction.
2002, c.I-12.05, s.32; 2020, c.24, s.7
Division C
Variation of Registered Orders
Jurisdiction
33(1)A New Brunswick court, after taking into consideration any right of a government or a government agency under section 39, may vary a support order that is made in New Brunswick under this Act or the former Act or registered in New Brunswick under Part 2 or the former Act if
(a) both the applicant and the respondent accept the court’s jurisdiction,
(b) both the applicant and the respondent habitually reside in New Brunswick, or
(c) the respondent habitually resides in New Brunswick and the order was registered by the applicant.
33(2)The Family Law Act applies for the purposes of varying a support order under subsection (1), as if the order were a support order under that Act.
2002, c.I-12.05, s.33; 2020, c.24, s.7
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APPEALS
Appeals
34(1)Subject to subsections (2) and (4), a party to a proceeding under this Act or a designated authority may appeal any decision, order or ruling of a New Brunswick court under this Act to the Court of Appeal.
34(2)An appeal shall be commenced within 90 days after the date on which the New Brunswick court’s decision, order or ruling is entered as a judgment of the court.
34(3)Despite subsection (2), the Court of Appeal may extend the appeal period, either before or after it has expired.
34(4)A party responding to an appeal under subsection (1) may appeal a decision, order or ruling in the same proceeding within 30 days after receiving the notice of appeal.
34(5)An order under appeal remains in force pending the determination of the appeal, unless the court that made the order or the Court of Appeal orders otherwise.
34(6)A designated authority shall forward a copy of an appeal decision to
(a) an appropriate authority in the reciprocating jurisdiction in which a party to the proceeding resides, and
(b) if a support order affected by the appeal was originally made in another reciprocating jurisdiction, an appropriate authority in that jurisdiction.
2002, c.I-12.05, s.34; 2020, c.24, s.7
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GENERAL
Appointment of designated authority
35(1)The Attorney General may appoint one or more persons to act as a designated authority in New Brunswick for the purposes of this Act or any provision of this Act.
35(2)A person appointed under subsection (1) may, in writing, delegate any power or duty under this Act to any other person.
2002, c.I-12.05, s.35
Forwarding of documents
36On receiving an order or other document that is to be forwarded to a reciprocating jurisdiction, a designated authority shall forward the order or document to an appropriate authority in the reciprocating jurisdiction.
2002, c.I-12.05, s.36
Translation
37(1)If a designated authority forwards an order or other document to a reciprocating jurisdiction that requires that it be translated into a language other than French or English, the order or document shall be accompanied by
(a) a translation of the order or document into the other language, and
(b) a certificate of the translator authenticating the accuracy of the translation.
37(2)A person for whom an order or document is being forwarded under subsection (1) shall provide the translation and the translator’s certificate to the designated authority.
37(3)An order or other document from a reciprocating jurisdiction that is written in neither French nor English shall be accompanied by
(a) a translation of the order or document into either French or English, and
(b) a certificate of the translator authenticating the accuracy of the translation.
2002, c.I-12.05, s.37
Request to locate
2020, c.24, s.7
37.1(1)If a designated authority receives a request to locate from an appropriate authority in a reciprocating jurisdiction, the designated authority may take any steps it considers appropriate for the purpose of obtaining information with respect to the whereabouts of the person named in the request.
37.1(2)The designated authority may respond to a request to locate by advising the appropriate authority in the reciprocating jurisdiction whether or not the person has been located in New Brunswick, but must not disclose specific information respecting the location of the person.
37.1(3)Information received under subsection (1) by a designated authority is confidential, except that the designated authority may use and disclose the information for the purpose of carrying out its duties and powers in accordance with this Act and the regulations.
2020, c.24, s.7
Order or application in foreign currency
38If, in a support order or an application received by a New Brunswick court, the amount of support is not expressed in Canadian currency, the court administrator shall convert the amount into Canadian currency in the prescribed manner.
2002, c.I-12.05, s.38; 2020, c.24, s.7
Right of subrogation
39A government or government agency that is providing, or has provided, social assistance to a person has the same rights as that person to commence or participate in any proceeding under this Act, including the right
(a) to obtain or vary support,
(b) to respond to an application
(i) for variation of support payments or arrears under a support order, or
(ii) to suspend enforcement of support payments or arrears under a support order,
(c) to make or respond to an application under section 19 to set aside the registration of a foreign order,
(d) to appeal or respond to an appeal under this Act, or
(e) to seek an order for the reimbursement of social assistance provided by it to the person.
2002, c.I-12.05, s.39; 2020, c.24, s.7
Terminology
40A New Brunswick court shall give a document from a reciprocating jurisdiction such broad and liberal interpretation as is necessary to give effect to it, if the document
(a) contains terminology that is different from the terminology used in this Act,
(b) contains terminology that is different from that customarily used in New Brunswick, or
(c) is in a form that is different from that customarily used in New Brunswick.
2002, c.I-12.05, s.40
Presumptions relating to proceedings
2020, c.24, s.7
40.1For the purposes of this Act, unless the contrary is established, it is presumed that
(a) procedures taken in a reciprocating jurisdiction have been regular and complete,
(b) a court making an order in a reciprocating jurisdiction had jurisdiction to do so, and
(c) the jurisdiction is recognized under the conflict of laws rules of New Brunswick.
2020, c.24, s.7
Law of reciprocating jurisdiction
41(1)In a proceeding under this Act
(a) a New Brunswick court shall take judicial notice of the law of a reciprocating jurisdiction and, when required, apply it, and
(b) an enactment of a reciprocating jurisdiction may be pleaded and proven by producing a copy of the enactment received from the reciprocating jurisdiction.
41(2)A document purporting to be signed in a reciprocating jurisdiction by a judge, an officer of a court or a public officer is, unless the contrary is proven, proof of the appointment, signature and authority of the person who signed it.
41(3)The following, taken in a reciprocating jurisdiction, may be received into evidence by a New Brunswick court:
(a) a written statement sworn to by the maker;
(b) a deposition; and
(c) a transcript of evidence.
2002, c.I-12.05, s.41
Other remedies
42This Act does not impair any other remedy available to the following:
(a) a person;
(b) the Province of New Brunswick or a political subdivision or an official agency of it;
(c) another province or territory of Canada or a political subdivision or an official agency of it; or
(d) a jurisdiction outside Canada or a political subdivision or an official agency of it.
2002, c.I-12.05, s.42
Regulations
43(1)If the Lieutenant-Governor in Council is satisfied that laws are or will be in effect in a jurisdiction for the reciprocal enforcement of support orders made in New Brunswick on a basis substantially similar to this Act, the Lieutenant-Governor in Council may by regulation designate that jurisdiction as a reciprocating jurisdiction.
43(2)When designating a jurisdiction as a reciprocating jurisdiction under subsection (1), the Lieutenant-Governor in Council may impose any conditions with respect to the enforcement or recognition of support orders made or registered in that jurisdiction.
43(3)The Lieutenant-Governor in Council may make regulations
(a) respecting notices, information or documents required under this Act;
(b) respecting the service, providing or forwarding of notices, information or documents under this Act;
(c) respecting proceedings under this Act;
(d) prescribing forms for the purposes of this Act and the regulations;
(e) respecting the conversion of amounts of support into Canadian currency for the purposes of section 38;
(f) prescribing anything required by this Act to be prescribed;
(g) respecting any other matter that may be necessary for the proper administration of this Act.
2002, c.I-12.05, s.43; 2020, c.24, s.7
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TRANSITIONAL PROVISION
Order made under former Act
44An order made or registered under the former Act continues to be valid and in full force and effect, and may be varied, enforced or otherwise dealt with under this Act.
2002, c.I-12.05, ss.44(1)
N.B. This Act was proclaimed and came into force February 9, 2017.
N.B. This Act is consolidated to March 1, 2021.