Acts and Regulations

S-15.5 - Support Enforcement Act

Table of contents
Full text
Current to 1 January 2024
CHAPTER S-15.5
Support Enforcement Act
2020, c.24, s.22
Assented to June 30, 2005
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1
INTERPRETATION
Definitions
1The following definitions apply in this Act.
“beneficiary” means a person in whose favour a support order has been made and who is a party to the support order.(bénéficiaire)
“court” means The Court of King’s Bench of New Brunswick, except where otherwise provided, and includes any judge of that court. (cour)
“court administrator” means a person appointed as an administrator under section 68 of the Judicature Act. (administrateur de la cour)
“credit reporting agency” means a person whose business includes supplying information to third parties about the financial circumstances or creditworthiness of other persons. (agence d’évaluation du crédit)
“Director” means the Director of Support Enforcement designated under subsection 4(1). (directeur)
“driver’s licence” means a licence as defined in the Motor Vehicle Act. (permis de conduire)
“driving privilege” means driving privilege as defined in section 294 of the Motor Vehicle Act. (droits de conducteur)
“financial institution” means(institution financière)
(a) a bank to which the Bank Act (Canada) applies,
(b) a loan or trust company licensed under the Loan and Trust Companies Act, or
(c) a credit union incorporated or continued under the Credit Unions Act.
“garnishee” Repealed: 2013, c.32, s.40
“income source” means an individual, a corporation or other entity from whom money is due or may become due to a payer, which money may include(source de revenu)
(a) wages or salary,
(b) a commission, bonus, piece-work allowance or other amount if the payment is not recoverable by the income source from the payer should the payer fail to earn the commission or bonus or fails to meet any production target,
(c) a benefit under an accident, disability or sickness plan,
(d) a disability, retirement or other pension,
(e) an annuity, or
(f) income of a type described by regulation.
“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf.(ministre)
“payer” means a person who is required to pay support under a support order. (payeur)
“payment order” means a payment order issued under subsection 15(1). (ordre de paiement)
“provisional order” means a provisional order or a provisional order of variation as defined in section 1 of the Interjurisdictional Support Orders Act. (ordonnance conditionnelle)
“Registrar of Motor Vehicles” means the Registrar as defined in the Motor Vehicle Act. (registraire des véhicules à moteur)
“spouse” means either of 2 persons who are married to each other or who, not being married, are cohabiting in a conjugal relationship with each other, but does not include a person who, being married to another person, is separated and living apart from the other person and who(conjoint)
(a) has entered into a written agreement with the other person under which they have agreed to live apart, or
(b) is subject to an order of the court recognizing the separation.
“support order” means a provision for the payment of support in an order, except a provisional order, or in a judgment that is enforceable in the Province and includes(ordonnance alimentaire)
(a) an interim support order made under the Family Law Act or under the Divorce Act (Canada),
(b) an order varying a support order made under the Family Law Act or under the Divorce Act (Canada),
(c) a support order for which the child support service has made a decision under section 38 of the Family Law Act setting out a recalculated amount of child support,
(d) an order made under subsection 33(4),
(e) an agreement filed with the Director under section 6, and
(f) an order that is a support order under the Interjurisdictional Support Orders Act.
2006, c.16, s.172; 2007, c.37, s.1; 2008, c.6, s.40; 2008, c.45, s.35; 2012, c.39, s.142; 2013, c.32, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22; 2020, c.25, s.109; 2021, c.36, s.4; 2022, c.28, s.52; 2023, c.17, s.262
Crown bound
2This Act binds the Crown except where otherwise provided.
2
OFFICE OF SUPPORT ENFORCEMENT
2020, c.24, s.22
Office of Support Enforcement
2020, c.24, s.22
3There shall be an Office of Support Enforcement.
2020, c.24, s.22
Director of Support Enforcement
2020, c.24, s.22
4(1)The Minister shall designate a person as the Director of Support Enforcement.
4(2)The Director is responsible for the administration of this Act.
4(3)The Director may, in accordance with the regulations, delegate to any person any power, authority, right, duty or responsibility conferred or imposed on the Director under this Act or the regulations.
4(4)A person to whom a power, authority, right, duty or responsibility has been delegated under subsection (3) may, in accordance with the regulations, delegate that power, authority, right, duty or responsibility to any person.
2020, c.24, s.22
Filing support order
2020, c.24, s.22
5(1)The court administrator shall, in accordance with the regulations and without delay, file with the Director
(a) every support order made by the court, and
(b) every support order registered with the court under the Interjurisdictional Support Orders Act.
5(2)The following persons may at any time file a support order with the Director:
(a) a beneficiary;
(b) a payer; or
(c) the Minister of Social Development, if support is being provided by that Minister to the beneficiary.
5(3)A support order made or registered before the commencement of this section that was not filed with the court immediately before the commencement of this section may be filed with the Director in accordance with this section.
5(4)Within 8 days after a support order is filed under subsection (1), a beneficiary may request that the support order not be filed with the Director, and if a beneficiary so requests,
(a) the Director shall not enforce the support order in accordance with this Act, and
(b) the support order shall be deemed not to have been filed with the Director.
2007, c.37, s.2; 2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22; 2021, c.36, s.4
Filing agreement
2020, c.24, s.22
6(1)Subject to subsection (2), an agreement made before or after the commencement of this section that includes a provision respecting the payment of support may be filed with the Director by
(a) a party to the agreement, or
(b) the Minister of Social Development, if support is being provided by that Minister to or for the benefit of a person receiving support under the agreement.
6(2)An agreement may be filed under subsection (1) only if the agreement is filed with the court under subsection 79(1) of the Family Law Act.
2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22; 2021, c.36, s.4
Effect of filing
7(1)It is the duty of the Director to enforce a support order that is filed with the Director in the manner that the Director considers appropriate.
7(2)The Director may, for the purpose of subsection (1),
(a) take any measures for the enforcement of a support order that the Director considers advisable,
(b) commence, conduct, continue or discontinue proceedings to enforce a support order in the name of the Director for the benefit of a beneficiary or a beneficiary’s child,
(c) sign all documents with respect to the enforcement of a support order, and
(d) enforce the payment of arrears owing under a support order, notwithstanding that the arrears accrued before the order was filed with the Director or before the commencement of this section.
7(3)No person other than the Director may enforce a support order that is filed with the Director unless the person first receives the written consent of the Director to do so.
7(3.1)An agreement by the parties to a support order that is filed with the Director to avoid or prevent the applicability of this Act or any provision of it to the enforcement of the support order is void and of no force or effect.
7(4)The Director shall serve notice on the following persons that a support order has been filed:
(a) the beneficiary;
(b) the payer; and
(c) the Minister of Social Development, if the Director has knowledge that support is being provided by that Minister to the beneficiary.
7(4.1)In the case of a support order filed under subsection 5(1), the Director shall only serve a payer with notice under paragraph (4)(b) after the 8 day period referred to in subsection 5(4) has elapsed.
7(4.2)If a payer or beneficiary resides outside the Province, the Director’s failure to serve that person under subsection (4) shall not prevent the Director from enforcing the support order in accordance with this Act nor does it affect the validity of any action taken by the Director under this Act.
7(5)If a support order is filed with the Director and an application to vary the support order is made to the court, the court administrator shall provide the Director with a copy of the application.
7(6)A support order filed with the Director shall be deemed to include the following provisions:
(a) the Director shall enforce the support order; and
(b) the amounts owing under the support order shall be paid to the person to whom they are owed through the Director unless the support order is withdrawn from the Director.
2007, c.37, s.3; 2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22; 2021, c.36, s.4
Obligations of payer
8(1)Subject to subsection (1.1), a payer shall provide the Director with the information about themselves required in the form provided by the Minister and shall
(a) arrange with an income source, in accordance with the regulations, to have the income source pay the amount payable under the support order to the Director,
(b) request the Director to issue a payment order to an income source,
(c) file security with the Director in the manner and amount prescribed by regulation to secure payment of the support order, or
(d) elect a method of payment prescribed by regulation.
8(1.1)A payer shall comply with subsection (1) within the following time periods:
(a) if a support order is filed under subsection 5(1), within 22 days after the support order is filed with the Director;
(b) if a support order is filed under subsection 5(2), within 14 days after the support order is filed with the Director; or
(c) if an agreement is filed under section 6, within 14 days after the agreement is filed with the Director.
8(2)If a payer does not comply with subsection (1), the Director shall take such measures as the Director considers necessary to ensure that the support order is complied with.
8(3)A payer who has provided information to the Director under subsection (1) shall notify the Director of any change in that information within 14 days after the change occurs.
8(4)A payer shall
(a) notify the Director in writing that the payer has commenced employment with an income source, and
(b) within 14 days of commencing employment with an income source, comply with paragraph (1)(a) or (b) if the payer’s previous income source was subject to a payment order.
2007, c.37, s.4; 2020, c.24, s.22
Withdrawal of support order
2020, c.24, s.22
9(1)The Director may withdraw a support order filed with the Director in the following circumstances:
(a) it appears to the Director that the beneficiary is taking steps to enforce the support order without the consent of the Director and 30 days have elapsed from the date the Director served the beneficiary and payer with notice that the Director intends to withdraw the support order;
(b) it appears to the Director that the amount payable under the support order is not readily verifiable;
(c) the amount payable under the support order is nominal;
(d) there is doubt or ambiguity on the part of the Director concerning the force, effect or meaning of the support order;
(e) the beneficiary accepts payments directly from the payer in relation to the support order;
(f) the beneficiary fails or refuses to provide information to the Director that the Director requires in order to enforce the support order;
(g) the beneficiary cannot be located after reasonable efforts have been made to do so; or
(h) a circumstance prescribed by regulation.
9(2)A beneficiary or a payer may apply to the Director to withdraw a support order filed with the Director.
9(2.1)If the Director receives an application under subsection (2), the Director shall serve notice on the other party to the support order of the following:
(a) the beneficiary or payer, as the case may be, has applied to withdraw the support order; and
(b) the support order will be withdrawn unless the party notifies the Director in writing within 14 days that the party opposes the support order’s withdrawal.
9(2.2) If the Director does not receive written notification under paragraph (2.1)(b), the Director shall withdraw the support order.
9(3)Notwithstanding subsection (2), if the Minister of Social Development is providing support to a beneficiary, that Minister is the only person who may apply to the Director to withdraw the support order.
9(4)Subject to subsection (5), a support order that has been withdrawn may be refiled with the Director at any time by any person entitled to file the order under subsection 5(2).
9(5)A support order that has been withdrawn under subsection (1) may only be refiled with the consent of the Director.
9(6)If a support order has been withdrawn under paragraph (1)(b), the beneficiary or the payer may apply to the court for clarification of the amount payable under the support order.
9(7)The Director shall serve notice on the following persons that a support order has been withdrawn:
(a) the beneficiary;
(b) the payer; and
(c) the Minister of Social Development, if the Director has knowledge that support is being provided by that Minister to the beneficiary.
9(8)Notwithstanding that a support order has been withdrawn under this section, the Director may enforce the payment of the following amounts in relation to the support order:
(a) Repealed: 2021, c.36, s.4
(b) any amount that is owed to the Province; and
(c) an amount that is owed to an appropriate authority in a reciprocating jurisdiction as defined in the Interjurisdictional Support Orders Act.
9(9)In order to enforce the payment of an amount under subsection (8), the Director may exercise any authority or use any power that the Director may exercise or use with respect to the enforcement of a support order that is filed with the Director.
2007, c.37, s.5; 2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22; 2021, c.36, s.4
Payments to Director
10(1)Notwithstanding the requirements of a support order, if a support order is filed with the Director, the payer shall make all payments under the support order to the Director.
10(2)The Director shall pay to a beneficiary all payments the Director receives under a support order filed with the Director to the extent of the beneficiary’s entitlement under the support order.
10(3)Notwithstanding subsection (2), if there is more than one support order filed with the Director with respect to the same payer, the Director may, in the Director’s discretion, apportion any payments received on account of such a support order amongst the beneficiaries under all or some of the support orders.
10(4)Notwithstanding any other Act, payments received by the Director under a support order are not attachable.
2007, c.37, s.6; 2020, c.24, s.22; 2021, c.36, s.4
Payments before support order filed
2007, c.37, s.7; 2020, c.24, s.22
10.1(1)If a payment is due under a support order before it is filed with the Director under subsection 5(1) and the payment is not made to the Director, the Director shall record the amount of the payment as an outstanding payment under the support order.
10.1(2)Notwithstanding subsection (1), if a payer makes a payment under a support order to a beneficiary before it is filed with the Director under subsection 5(1), the Director shall credit the amount of the payment to the account respecting that support order if
(a) the beneficiary confirms in writing to the Director that the payment was made, or
(b) the payer provides evidence satisfactory to the Director that the payment was made.
10.1(3)Before a support order is filed with the Director under subsection 5(1) and before the period referred to in subsection 5(4) has elapsed, a payer may make payments under the support order to the Director.
10.1(4)A payment made to the Director under subsection (3) shall be held by the Director until the support order is filed with the Director under subsection 5(1), at which time the payment shall be dealt with in accordance with section 10.
10.1(5)If a payment is made under subsection (3), the Director shall return the payment to the payer in the following circumstances:
(a) the support order is not filed with the Director within 90 days after the payer makes the payment; or
(b) the beneficiary makes a request under subsection 5(4) that the support order not be filed with the Director.
2007, c.37, s.7; 2020, c.24, s.22
Determination of arrears
2007, c.37, s.7
10.2(1)In this section, “support order” means
(a) a support order filed under subsection 5(2) or (3), or
(b) an agreement filed under section 6.
10.2(2)When a support order is filed with the Director, the beneficiary may complete a signed declaration stating the amount of arrears that are owing under the support order at the time the support order is filed.
10.2(3)If a beneficiary files a declaration under subsection (2), the Director shall serve a copy of the declaration on the payer.
10.2(4)Within 14 days after being served with a declaration under subsection (3), a payer shall file one of the following with the Director:
(a) the payer’s written agreement with the amount of arrears stated in the declaration; or
(b) the payer’s written dispute of the amount of arrears stated in the declaration.
10.2(5)If the Director receives a written agreement under paragraph (4)(a), the amount of the arrears owing under the support order as stated in the declaration filed under subsection (2) shall be recorded on the account respecting that support order.
10.2(6)If the Director receives a written dispute under paragraph (4)(b), the Director shall direct a court administrator to hold a hearing to determine the amount of arrears owing under the support order.
10.2(7)If the Director does not receive a response under subsection (4), the payer shall be deemed to have agreed with the amount of arrears stated in the declaration.
10.2(8)At a hearing under subsection (6), the parties shall be entitled to be heard, and the court administrator shall do the following:
(a) consider all relevant evidence presented by the parties; and
(b) determine the amount of arrears owing under the support order or refer the matter to the court for a determination.
10.2(9)Within 30 days after a court administrator has made a determination under paragraph (8)(b), the payer or the beneficiary may apply to the court in accordance with the regulations to have the determination reconsidered by the court and an order issued by the court respecting the amount of arrears owing under the support order.
10.2(10)If an application is not made under subsection (9), the court administrator shall provide a copy of their determination under paragraph (8)(b) to the Director, who shall record the amount of the arrears owing under the support order on the account respecting that support order.
2007, c.37, s.7; 2020, c.24, s.22; 2021, c.36, s.4
Discretion to enforce lesser amount
2007, c.37, s.7
10.3(1)The Director may enforce a lesser amount of support than that set out in a support order if the following conditions are fulfilled:
(a) the support order was made in accordance with the table set out in the applicable child support guidelines;
(b) the parties to the support order agree to the following:
(i) that a lesser amount of support be enforced; and
(ii) that the support obligation under the support order has terminated with respect to a child;
(c) the support obligation under the support order continues with respect to another child;
(d) the support order states the following:
(i) the number of children to which it applies;
(ii) the payer’s income; and
(iii) the total amount of support determined in accordance with the table set out in the applicable child support guidelines; and
(e) the lesser amount of support is set in accordance with the table set out in the applicable child support guidelines.
10.3(2)If the Director enforces a lesser amount of support under subsection (1), the Director shall only resume enforcing the amount set out in the support order or enforce any arrears that accrued under the support order if there is a court order directing the Director to do so and, in the case of arrears, the order sets out the amount of arrears that are owed.
10.3(3)The Director may temporarily enforce a lesser amount of support than that set out in a support order if a circumstance prescribed by regulation exists.
10.3(4)Subject to subsection (5), if the Director enforces a lesser amount of support under subsection (3), arrears shall accrue under the support order for the amount of support that the Director does not enforce.
10.3(5)If the Director enforces a lesser amount of support under subsection (3), the beneficiary may consent in writing to arrears not accruing under the support order for the amount of support that the Director does not enforce.
10.3(6)If the Director enforces a lesser amount of support under subsection (3), the Director shall require a court order directing the Director to enforce arrears that accrued or would have accrued under the support order and stating the amount of arrears that are owed in order to enforce the payment of arrears in the following circumstances:
(a) the beneficiary gave their consent under subsection (5); or
(b) the parties to the support order agreed to the enforcement of a lesser amount of support under subsection (3).
2007, c.37, s.7; 2020, c.24, s.22; 2021, c.36, s.4
Discretion to make payment to third party
2007, c.37, s.7
10.4Notwithstanding subsection 10(2), the Director may pay any amount received on account of a support order to the following people on the written direction of the beneficiary:
(a) a person having the care and control of a child named in the support order, if the following conditions are satisfied:
(i) that person notifies the Director that they have the care and control of the child; and
(ii) the Director confirms to the Director’s satisfaction that the child is residing with that person; or
(b) a child named in the support order, if the child no longer resides with the beneficiary and is enrolled at a post-secondary educational institution.
2007, c.37, s.7; 2020, c.24, s.22; 2021, c.36, s.4
Records
11(1)The Director shall keep a record, in the manner prescribed by regulation, of
(a) all payments due under a support order filed with the Director,
(b) all payments received and paid out by the Director, and
(c) the persons to whom and by whom the payments referred to in paragraph (b) have been paid.
11(2)The Director may, on the request of the beneficiary or the payer, provide an itemized statement showing the current status of the account under a support order filed with the Director.
2020, c.24, s.22
Access to information
12(1)For the purpose of enforcing a support order filed with the Director or of obtaining information for a person performing a similar function in another jurisdiction, the Director may request from a person or public body, including the Crown, any of the following information concerning the payer or the payer’s spouse that is, or is believed to be, within the knowledge of, or in a record in the possession or control of, the person or public body:
(a) wages, salary or other income;
(b) income sources;
(c) location of income sources;
(d) assets and liabilities;
(e) location of assets, including account numbers with financial institutions;
(f) financial status;
(g) copies of income tax returns;
(h) social insurance number;
(i) location, address or place of employment;
(j) location, address or place of residence;
(k) telephone and facsimile number; and
(l) any other information that the Director considers necessary for the enforcement of the support order.
12(2)Notwithstanding any other Act or common law rule of privilege or confidentiality, a person or public body, including the Crown, that receives a request under subsection (1) shall, within 14 days after being served with the request,
(a) provide the requested information to the Director, or
(b) advise the Director in writing that the requested information is not within the knowledge of, or in a record in the possession or control of, the person or public body.
12(3)For the purpose of enforcing a support order filed with the Director or of obtaining information for a person performing a similar function in another jurisdiction, the Director may search a provincial information bank prescribed by regulation for any information referred to in subsection (1).
12(4)This section does not apply to information within the knowledge, possession or control of a solicitor if the solicitor acquired the information as the result of a solicitor-client relationship.
2020, c.24, s.22
Order to provide information
13(1)A court may make an order under subsection (2) if, on application, the court is satisfied that
(a) the Director has not been provided with information after making a request under subsection 12(1), or
(b) a beneficiary requires information to enforce a support order that is not filed with the Director.
13(2)A court may order a person or public body, including the Crown, to provide the court or other person named in the order with any information referred to in subsection 12(1) that is within the knowledge of, or is in a record in the possession or control of, the person or public body.
13(3)If the Director obtains an order under subsection (2), the court shall award the costs of the application to the Director.
2020, c.24, s.22
Confidentiality of information
14(1)No person shall disclose information received by the Director under this Act except in accordance with this Act or the regulations.
14(2)Information received by the Director under this Act may be disclosed
(a) to the extent necessary to enforce a support order filed with the Director,
(b) upon request, to a person performing a function similar to the Director in another jurisdiction, or
(c) pursuant to a court order.
14(3)If a court makes an order under subsection 13(2) or a similar provision in another Act or an Act of the Parliament of Canada, the court may also make an order with respect to the confidentiality of the information released.
2020, c.24, s.22
3
PAYMENT ORDERS
Issuance of payment order
15(1)For the purpose of enforcing a support order, the Director may issue a payment order to an income source.
15(2)A financial institution that holds a deposit account in the name of a payer may be issued a payment order under subsection (1).
15(3)A payment order may not be issued with respect to assistance received under the Family Income Security Act.
15(4)A payment order shall be in the form prescribed by regulation and shall direct the income source to
(a) deduct from the money due and owing to the payer, or that shall become due and owing, the amount specified in the payment order in accordance with the schedule set out in the payment order, and
(b) forward to the Director the amount deducted in accordance with the payment order.
15(5)A payment order shall be served on the income source.
15(6)Before issuing a payment order, the Director may give notice to the person to whom a payment order is to be issued.
15(7)The Director shall provide a copy of the payment order to the payer, but the inability of the Director to provide a copy of the payment order to the payer does not effect the validity of the payment order.
15(8)A court may, at the time a support order is made, order the Director to issue a payment order under subsection (1).
2013, c.32, s.40; 2020, c.24, s.22
Effect of payment order
16(1)A payment order remains in effect until
(a) the date specified in the payment order for the termination of the payment order,
(b) a notice of revocation is served on the income source under paragraph 17(2)(a) or 17(6)(a) or subsection 17(6.2), or
(c) the court orders the revocation of the payment order under paragraph 17(5)(a).
16(2)Any amount received pursuant to a payment order shall be applied against any amount owed in relation to the support order to which the payment order relates, including interest, security or fees imposed under this Act.
16(3)An amount paid by an income source under a payment order discharges, to the extent of the payment, the debt owing from the income source to the payer.
2007, c.37, s.8; 2013, c.32, s.40; 2020, c.24, s.22
Revocation of payment order
17(1)A payer or an income source may apply to the Director in accordance with the regulations for the revocation of a payment order on the grounds that
(a) the income source is not or will not become liable to pay a sum of money to the payer, or
(b) the payment order contains or is based upon a material error.
17(2)Upon application under subsection (1), the Director may
(a) revoke the payment order by serving a notice of revocation on the income source if the Director determines that
(i) the income source is not or will not become liable to pay a sum of money to the payer, or
(ii) the payment order contains or is based upon a material error, or
(b) refuse to revoke the payment order.
17(3)If the Director refuses to revoke a payment order under paragraph (2)(b), the payer or the income source may apply to the court in accordance with the regulations to have the payment order revoked upon the same grounds as an application to the Director under subsection (1).
17(4)An applicant under subsection (3) shall serve notice of the application on the Director.
17(5)Upon application under subsection (3), the court may
(a) order the revocation of the payment order if the court determines that
(i) the income source is not or will not become liable to pay a sum of money to the payer, or
(ii) the payment order contains or is based upon a material error, or
(b) if the court determines that the income source is liable under the payment order,
(i) order the income source to pay any unpaid amounts under the payment order, and
(ii) order the applicant to pay the Director’s costs of the application.
17(6)If the obligation of an income source to a payer ceases, the income source shall, within 10 days after the obligation ceases, notify the Director in writing, and the Director shall do one of the following:
(a) revoke the payment order by serving a notice of revocation on the income source; or
(b) suspend the payment order by serving notice of the suspension on the income source.
17(6.1)A notice under paragraph (6)(b), shall include instructions to the income source respecting when or the circumstances under which the income source’s obligations under the payment order shall resume.
17(6.2)The Director may revoke a payment order by serving a notice of revocation on a income source if the Director is of the opinion that it would be appropriate to revoke the payment order having regard to all of the circumstances.
17(7)The Director shall provide a copy of a notice of revocation under this section to the payer.
2007, c.37, s.9; 2013, c.32, s.40
Amendment of payment order
2007, c.37, s.10
17.1The Director may amend a payment order in the following circumstances:
(a) the amount payable under a support order changes;
(b) the schedule of payments under a support order changes; or
(c) the Director is of the opinion that it would be appropriate to amend the payment order having regard to all of the circumstances.
2007, c.37, s.10; 2020, c.24, s.22
Enforcement of payment order
18(1)If an income source fails or refuses to comply with a payment order, the Director may apply to the court in accordance with the regulations for the following orders:
(a) an order requiring the income source to pay the amount that is unpaid under the payment order; and
(b) an order requiring the income source to comply with the payment order.
18(2)An application under subsection (1) shall include
(a) a copy of the payment order,
(b) proof of service of the payment order, and
(c) an affidavit stating that the income source has not made payments required under the payment order.
18(3)If the court makes an order under subsection (1),
(a) the court shall also order the income source to pay the Director’s costs of the application and costs of enforcing the order, and
(b) the order may be enforced in the same manner as any other order of the court.
2007, c.37, s.11; 2013, c.32, s.40
Exemption from payment order
19(1)A payer may apply to the court in accordance with the regulations for an order exempting an amount of money from deduction under a payment order.
19(2)Upon application under subsection (1), the court may order that an amount of money is exempt from deduction under a payment order if the court is satisfied that it would be grossly unfair and inequitable to the payer not to make the order.
Priority of payment order
20(1)Notwithstanding any other Act, upon service, a payment order has priority over any assignment of wages made by the payer, whenever made, and an assignment of wages is void in so far as it would prevent compliance with the payment order.
20(2)Notwithstanding any other Act, upon service, a payment order has priority over a seizure under the Enforcement of Money Judgments Act, or any other execution, whenever made, with respect to any debt owed by the income source.
20(3)Repealed: 2013, c.32, s.40
20(4)Subsection (2) does not bind the Crown.
2013, c.32, s.40
Employee protection
21(1)An employer shall not dismiss, suspend, lay-off, penalize, discipline or discriminate against an employee if the reason is related to the issuing of a payment order to the employer.
21(2)Upon the application of an employee who alleges to have been the subject of a violation of subsection (1), a court may, if it finds the allegation to be true, make any order in favour of the employee that it considers just, including an order for reinstatement and an award of damages.
21(3)An employer who dismisses, suspends, lays-off, penalizes, disciplines or discriminates against an employee in respect of whom a payment order has been issued while the payment order is in effect or within 6 months after it has ceased to have effect shall, if an application is made under subsection (2), be required to show cause for the action, in default of which the action shall be deemed to have been in violation of subsection (1).
Fees prohibited
22(1)An income source shall not charge a fee to a payer with respect to anything required to be done by the income source under this Act.
22(2)Subsection (1) does not apply to the Crown in right of Canada.
2013, c.32, s.40; 2023, c.17, s.262
Payment order issued outside the Province
2020, c.24, s.22
23(1)The Director may issue a payment order under subsection 15(1) if the following are filed with the Director:
(a) a support order made by a competent authority outside the Province; and
(b) a document that
(i) is of similar effect to a payment order,
(ii) is issued by a competent authority outside of the Province,
(iii) is issued with respect to the accompanying support order, and
(iv) is written in or accompanied by a sworn or certified translation in English or French.
23(2)The Director may issue a payment order under subsection 15(1) to a person who is outside the Province.
2020, c.24, s.22
4
OTHER ENFORCEMENT MECHANISMS
Joint Debts
Repealed: 2012, c.13, s.3
2012, c.13, s.3
24Repealed: 2012, c.13, s.3
2012, c.13, s.3
Joint account
25(1)The Director may issue a payment order under subsection 15(1) to a financial institution that holds a deposit account in the name of a payer and one or more other persons as joint account holders.
25(2)The assets of a deposit account referred to in subsection (1) are deemed to be owed by the financial institution in equal portions to each of the joint account holders.
25(3)Within 10 days after being served with a payment order in relation to a deposit account referred to in subsection (1), a financial institution shall
(a) pay to the Director that portion of the deposit account deemed to be owed to the payer that is necessary for the financial institution to comply with the payment order,
(b) serve notice on the Director that the deposit account is held jointly in the name of 2 or more persons, and
(c) serve notice on the joint holders of the deposit account who are not named in the payment order that the amount has been paid to the Director.
25(4)Within 30 days after a financial institution has served the Director under paragraph (3)(b), the Director, the payer or a joint holder of the deposit account may apply to the court in accordance with the regulations for a determination that the payer is owed either a greater or lesser portion of the deposit account than was paid to the Director.
25(5)If a financial institution has served the Director under paragraph (3)(b), the Director shall not release the money received under paragraph (3)(a) until 30 days after being served with the notice.
25(6)Notwithstanding subsection (5), if an application has been made under subsection (4), the Director shall not release the money received under paragraph (3)(a) until the court has disposed of the application.
25(7)If an application has been made under subsection (4), the Director shall release the money received under paragraph (3)(a) in accordance with the order of the court.
Suspension of driving privileges
26(1)The Director may direct the Registrar of Motor Vehicles to revoke the driver’s licence and suspend the driving privileges of a payer if
(a) the payer is in default under a support order filed with the Director,
(b) the arrears owing under the support order are for an amount in excess of the amount prescribed by regulation,
(c) in the opinion of the Director, all reasonable steps have been taken to enforce the support order, and
(d) the 30-day period referred to in subsection (2) has elapsed.
26(2)Before giving directions to the Registrar of Motor Vehicles under subsection (1), the Director shall serve the payer with notice that unless the payer makes arrangements satisfactory to the Director to comply with the support order within 30 days after service of the notice, the Director shall direct the Registrar of Motor Vehicles to revoke the driver’s licence and suspend the driving privileges of the payer.
26(3)If the Director is satisfied that a payer requires a driver’s licence for employment or medical purposes, the Director may direct the Registrar of Motor Vehicles to impose any of the following restrictions on the driver’s licence of the payer, rather than revoking the driver’s licence and suspending the driving privileges of the payer:
(a) the payer shall be authorized to operate a motor vehicle only for employment or medical purposes, as the case may be; and
(b) the payer shall be restricted to operating a motor vehicle at specific hours and places.
26(4)The Director shall direct the Registrar of Motor Vehicles to reinstate a driver’s licence revoked and driving privileges suspended pursuant to this section if
(a) the payer pays all arrears owing under the support order,
(b) the payer makes arrangements satisfactory to the Director for complying with the support order, or
(c) the support order is withdrawn under section 9.
26(5)Subsection (4) applies with the necessary modifications to revoking restrictions imposed on a driver’s licence pursuant to this section.
26(6)A payer may apply to the court in accordance with the regulations for an order
(a) reinstating the driver’s licence and driving privileges of the payer, or
(b) revoking the restrictions imposed on the driver’s licence of the payer.
26(7)The court may make an order under subsection (6) if the court is satisfied that
(a) at the time the Director gave the direction under subsection (1), the payer was not in default under the support order or did not owe arrears under the support order in excess of the amount prescribed by regulation,
(b) a person’s health is or would be seriously threatened if the driver’s licence and driving privileges of the payer were not reinstated, or
(c) the payer requires a driver’s licence for employment purposes.
26(8)If the court makes an order under paragraph (6)(a), the court may also order the Registrar of Motor Vehicles to impose any restrictions on the driver’s licence of the payer that may be imposed under subsection (3).
26(9)Repealed: 2007, c.37, s.12
26(10)Repealed: 2007, c.37, s.12
2007, c.37, s.12; 2020, c.24, s.22
Credit reporting agencies
27(1)The Director may report a payer to a credit reporting agency in accordance with subsection (2), if
(a) the payer is in default under a support order filed with the Director,
(b) the arrears owing under the support order are for an amount in excess of the amount prescribed by regulation, and
(c) the 30-day period referred to in subsection (1.1) has elapsed.
27(1.1)Before reporting a payer to a credit reporting agency, the Director shall serve the payer with notice that unless the payer makes arrangements satisfactory to the Director to comply with the support order within 30 days after service of the notice, the Director may report the payer to a credit reporting agency.
27(2)If the 30-day period referred to in subsection (1.1) has elapsed, the Director may disclose the following information to a credit reporting agency:
(a) the name of the payer who is in default under the support order;
(b) the date of the support order;
(c) the amount and frequency of the payer’s obligations under the support order;
(d) the amount of arrears owing under the support order at the time of the disclosure; and
(e) any other information prescribed by regulation.
27(3)The Director may require a credit reporting agency to include in a report information respecting a payer’s obligations under a support order.
27(4)Notwithstanding that the requirements of subsection (1) are satisfied, the Director shall not report a payer to a credit reporting agency in accordance with subsection (2) within 90 days after a support order is filed with the Director.
2007, c.37, s.13; 2020, c.24, s.22
Corporation owned by payer
28(1)In this section, “corporation” means a corporation in which a payer is the sole shareholder and has the sole beneficial interest in the shares of the corporation.
28(2)A corporation shall be jointly and severally liable with a payer for payments required under a support order if
(a) the payer is in default under a support order,
(b) the Director serves the corporation with a notice stating
(i) that the corporation is jointly and severally liable with the payer for payments required under the support order, and
(ii) the amount owing by the payer under the support order, and
(c) the arrears owing under the support order are for an amount in excess of the amount prescribed by regulation.
28(3)If a corporation is jointly and severally liable under subsection (2),
(a) the corporation continues to be liable as long as the payer is liable for payments required under the support order,
(b) an enforcement measure that may be taken under this Act against the payer may be taken against the corporation, and
(c) the amount of any payment made by the corporation under the support order is a debt owed by the payer to the corporation.
28(4)Notwithstanding subsection (3), a corporation is not liable for payments under a support order that come due on or after the date that the Director is served with written notice from the corporation stating
(a) that the payer no longer has a beneficial interest in any shares of the corporation and the date this took effect,
(b) the name and address of the person who acquired the beneficial interest in the payer’s shares, and
(c) if known to the corporation, the nature and the amount of consideration the payer received or will receive for transferring the payer’s beneficial interest in the shares.
28(5)For the purpose of an enforcement proceeding under this section against a corporation, the Director shall
(a) consider if a significant risk to the continued solvency of the corporation arises or will arise from the enforcement proceeding, and
(b) if the Director determines that a significant risk has arisen or will arise, proceed in a manner that will, in the Director’s opinion, reduce the risk and allow for enforcement under this Act to be effective.
2007, c.37, s.14; 2020, c.24, s.22; 2021, c.36, s.4
Corporation controlled by payer or immediate family
29(1)The following definitions apply in this section.
“control” means, with respect to a corporation, to hold, other than by way of security only, by or for the benefit of a person or a group of persons not dealing with each other at arm’s length, shares in a corporation that in an election of the directors of the corporation carry, in total, sufficient voting rights to elect 50% or more of the directors or to otherwise effectively control the operations and direction of the corporation.(contrôler)
“corporation” means a corporation that is controlled by a payer or by a payer and the payer’s immediate family members.(société)
“immediate family member” means a spouse, former spouse, child, parent, step-parent, parent-in-law, sibling, half-sibling or stepsibling of a payer.(membre de la famille immédiate)
29(2)The Director, if a support order is filed with the Director, or a beneficiary, if a support order is not filed with the Director, may apply to the court for an order that a corporation is jointly and severally liable with a payer for payments required under a support order if
(a) the payer is in default under the support order,
(b) the applicant has served the corporation with notice of the claim for joint and several liability and the amount owing by the payer under the support order, and
(c) the arrears owing under the support order are for an amount in excess of the amount prescribed by regulation.
29(3)If a court orders that a corporation is jointly and severally liable under subsection (2),
(a) the corporation continues to be liable as long as the payer is liable for payments required under the support order,
(b) an enforcement measure that may be taken under this Act against the payer may be taken against the corporation, and
(c) the amount of any payment made by the corporation under the support order is a debt owed by the payer to the corporation.
29(4)Notwithstanding subsection (3), a corporation is not liable for payments under a support order that come due on or after the date that the Director or the beneficiary, as the case may be, is served with written notice from the corporation stating
(a) that the payer no longer has a beneficial interest in any shares of the corporation and the date this took effect,
(b) the name and address of the person who acquired the beneficial interest in the payer’s shares, and
(c) if known to the corporation, the nature and the amount of consideration the payer received or will receive for transferring the payer’s beneficial interest in the shares.
29(5)For the purpose of making an order under this section, the court shall
(a) consider if a significant risk to the continued solvency of the corporation will arise from enforcement proceedings taken pursuant to the order, and
(b) if the court determines that a significant risk will arise, make an order that will, in the court’s opinion, reduce the risk and allow for enforcement under this Act to be effective.
2007, c.37, s.15; 2020, c.24, s.22; 2021, c.36, s.4
Financial information
30(1)The Director may require a payer who is in default under a support order filed with the Director to file with the Director
(a) a financial statement as prescribed by regulation, and
(b) such other information or documents as prescribed by regulation.
30(2)A payer shall file the required documents under subsection (1) with the Director within 15 days after being served with notice of the requirement.
30(3)Upon application in accordance with the regulations, the court may order a payer who is in default under a support order to file with the court within 15 days after the order is made
(a) a financial statement as prescribed by regulation, and
(b) such other information or documents as prescribed by regulation.
30(4)If a support order is filed with the Director, the Director may apply to the court under subsection (3).
30(5)If a support order is not filed with the Director, the following persons may apply to the court under subsection (3):
(a) a beneficiary;
(b) if an amount under a support order has been ordered to be paid to a person or agency for the benefit of a person named in the support order, the person or agency to whom the amount was ordered to be paid; or
(c) the Minister of Social Development, if support is being provided by that Minister to the beneficiary.
2007, c.37, s.16; 2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22; 2021, c.36, s.4
Administrative hearing
31(1)If a payer is in default under a support order filed with the Director, the Director may apply to a court administrator for an order requiring the payer
(a) to file with the court administrator
(i) a financial statement as prescribed by regulation, and
(ii) such other information or documents as prescribed by regulation, and
(b) to appear before the court administrator or the Case Management Master appointed under section 56.1 of the Judicature Act, in accordance with the Rules of Court, to be examined under oath for the purpose of enforcing the support order in relation to
(i) the payer’s employment income, assets, financial obligations and means or ability to comply with the support order, and
(ii) the payer’s disposal of property after the proceedings were commenced in which the support order was made.
31(2)If a court administrator makes an order under paragraph (1)(a), the payer shall file the financial statement, information or other documents within 15 days after being served notice of the order.
31(3)A court administrator may, in accordance with the Rules of Court, require any person to appear before the court administrator if the court administrator is satisfied that the person is able to give evidence material to the enforcement of a support order that is the subject of an application under subsection (1).
31(3.1)Subsection (3) applies with the necessary modifications to a Case Management Master.
31(4)After examining a payer pursuant to an order under paragraph (1)(b), a court administrator or a Case Management Master may
(a) issue a certificate under section 34,
(b) require the payer to pay all or part of the arrears under the support order,
(c) refer the matter to the appropriate officials for consideration of instituting proceedings with respect to an offence under this Act,
(d) require the payer to report periodically to the Director with respect to the information set out in the order,
(e) require a payer to appear before the court for the purposes of a default hearing under section 33,
(f) adjourn the hearing, with or without conditions, or
(g) do any or all of the above.
31(5)Repealed: 2010, c.21, s.6
2010, c.21, s.6; 2020, c.24, s.22
Additional authority of court administrator
32Notwithstanding any other provision of this Act, where an amount ordered to be paid under a support order is not paid in relation to a support order filed with the Director, the court administrator may, without prior notice to the payer and without a hearing, issue a certificate under section 34.
2020, c.24, s.22
Default hearing
33(1)If a payer is in default under a support order, the Director, if the support order is filed with the Director, or the beneficiary, if the support order is not filed with the Director, may apply to a court administrator for an order requiring the payer to attend a default hearing before the court to explain why the payer is not complying with the support order.
33(2)An order under subsection (1) shall be served on the payer.
33(3)At a default hearing, if a payer fails to satisfy the court that the default is owing to the payer’s inability to pay, the court may
(a) issue a certificate under section 34,
(b) if the support order is filed with the Director, require the Director to issue a payment order under section 15,
(c) require the payer to pay all or part of the arrears under the support order,
(d) require the payer to report periodically to the court with respect to the information set out in the order,
(e) if the support order is filed with the Director, require the payer to report periodically to the Director with respect to the information set out in the order,
(f) make an order to imprison the payer in accordance with section 35, or
(g) make any or all of the above orders.
33(4)At a default hearing, the court may take any action that is authorized under section 22 or 23 of the Family Law Act.
33(5)If the court is satisfied that a person is able to give evidence material to the enforcement of a support order that is the subject of a default hearing, the court may
(a) in accordance with the Rules of Court, require the person to appear before the court to give evidence, or
(b) require the person to file a financial statement with the court.
33(6)Notwithstanding any other provision of this section, if it is alleged in an application under subsection (1) that an amount ordered to be paid under a support order has not been paid or is not being paid, the court may, without prior notice to the payer and without a hearing,
(a) issue a certificate under section 34, or
(b) if the support order is filed with the Director, require the Director to issue a payment order under section 15.
33(7)If the court considers it appropriate in a default hearing under this section, the court may order the payer to give security for the payment of support or may charge any property of the payer with payment of an amount due or coming due under a support order.
33(8)If a court orders security for the payment of support or charges property for support, the court may, upon application and notice to all persons having an interest in the property, direct that the security or charge be realized by seizure, sale or any other means that the court considers appropriate.
33(9)If a payer fails to file a financial statement in accordance with an order under subsection 30(3) or fails to appear in accordance with an order under subsection (1), the court may issue an order for the apprehension of the payer for the purpose of bringing the payer before the court.
33(10)In a default hearing under this section, the court may admit as evidence testimony or documents related to the means and assets of a person, notwithstanding that the testimony or document would not otherwise be admissible as evidence, and may determine any matter on that evidence.
2020, c.24, s.22; 2021, c.36, s.4
Certificate of court
34(1)The court may issue a certificate in the prescribed form stating the amount that is due under any order made under this Act, the Family Law Act, the Divorce Act (Canada) or the Interjurisdictional Support Orders Act and the name of the payer, and the certificate upon its production to and filing in the court shall be entered and recorded in the court, and when entered and recorded becomes a judgment of the court and has the same force and effect, and all proceedings may be taken under the certificate, as if it were a judgment obtained in the court against the payer.
34(2)The Creditors Relief Act does not apply with respect to money levied upon an execution pursuant to a certificate entered and recorded as a judgment of the court under subsection (1).
2020, c.24, s.22
Imprisonment of payer
35(1)If the court is satisfied that all other practicable means that are available under this Act for enforcing a support order have been considered, the court may
(a) order imprisonment of the payer until the default is remedied, or
(b) impose a fine on the payer of not more than $500.
35(2)An order for imprisonment under paragraph (1)(a)
(a) may be made conditional upon default in the performance of a condition set out in the order,
(b) may be ordered to be served intermittently, and
(c) shall not be for a period longer than 90 days, notwithstanding that the default has not been remedied.
35(3)Imprisonment of a payer under this section does not discharge arrears owing under a support order.
2020, c.24, s.22
Arrest of payer
36(1)Upon application, if it appears that a payer is about to leave the Province in order to evade or hinder enforcement of a support order, a court may issue an order for the apprehension of the payer for the purpose of bringing the payer before the court to be examined with respect to the payer’s ability to meet the payer’s obligations under the support order.
36(2)Notwithstanding that a payer brought before the court under subsection (1) is not in default under a support order, the court may take any action in an application under subsection (1) that the court is authorized to take in a default hearing under section 33.
36(3)An application under subsection (1) may be ex parte and may be made by the following persons:
(a) the Director, if a support order is filed with the Director; or
(b) if a support order is not filed with the Director,
(i) a beneficiary, or
(ii) the Minister of Social Development, if support is being provided by that Minister to a beneficiary.
2007, c.37, s.17; 2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22; 2021, c.36, s.4
Security
37(1)The Director may at any time require a payer to file security with the Director in the manner and amount prescribed by regulation to secure payment of a support order.
37(2)If a payer is in default under a support order filed with the Director and the payer has filed security with the Director, the Director may realize on the security by seizure, sale or any other means that the Director considers appropriate.
37(3)If the Director has realized on security under subsection (2), the Director may do the following:
(a) require the payer to file further security under this section; or
(b) use a late payment received under a support order to replenish the security.
37(4)A payer shall comply with a request of the Director under subsection (1) or (3) within 14 days after being served with notice of the request.
2007, c.37, s.18; 2020, c.24, s.22
Default dependent enforcement mechanisms
2007, c.37, s.19
37.1If the Director’s authority to use an enforcement mechanism under this Part is conditional upon the payer being in default under a support order, the Director may exercise the Director’s authority if the default occurred before or after the commencement of this Act.
2007, c.37, s.19; 2020, c.24, s.22; 2021, c.36, s.4
5
GENERAL PROVISIONS
Interest on arrears
Repealed: 2012, c.13, s.3
2012, c.13, s.3
38Repealed: 2012, c.13, s.3
2008, c.6, s.40; 2012, c.13, s.3
Fees
39(1)The Director may charge the prescribed fees for the prescribed services and enforcement actions to the prescribed persons.
39(2)The Director shall not charge a fee to a beneficiary for services provided to or for the benefit of the beneficiary under this Act.
39(3)The Director may include a fee charged for the issuance of a payment order in the amount that is to be paid under the payment order.
39(4)The Director may enforce the payment of a fee due under this section in the same manner as support due under a support order filed with the Director.
39(5)The Director may, in the Director’s sole discretion, waive a fee that is otherwise due under this section.
39(6)No person shall charge the Director a fee for anything that the Director requires the person to do in furtherance of the Director’s duties and responsibilities under this Act.
2007, c.37, s.20; 2020, c.24, s.22; 2021, c.36, s.4
Clarification of support order provisions
2007, c.37, s.21; 2020, c.24, s.22
39.1(1)If the provisions of a support order result in a conflict as to how much support is owed by the payer in a 12-month period, the provision which results in the payer owing the lesser amount of support shall be deemed to prevail.
39.1(2)If subsection (1) applies to a support order, any excess amount that was paid by a payer as a result of the support order’s conflicting provisions may be dealt with by the Director in accordance with subsection 40(2).
2007, c.37, s.21; 2020, c.24, s.22
Application of payments
40(1)Money paid on account of a support order shall be credited in accordance with the regulations.
40(2)Notwithstanding subsection (1), if a payer makes a payment under a support order to the Director in excess of the amount due for that periodic payment, the Director may, in the Director’s sole discretion, credit the overpayment in accordance with the regulations or return the overpayment to the payer.
40(3)Notwithstanding that a support order includes a schedule for the payment of arrears or the suspension of payments towards arrears, money received from a prescribed source on account of a support order may be credited to reduce the total amount of arrears owing under the support order.
2007, c.37, s.22; 2020, c.24, s.22; 2021, c.36, s.4
Presumption of ability to pay
41In a proceeding under this Act, unless the contrary is proven, a payer is presumed to have the ability to pay arrears owing under a support order and to make subsequent payments as they become due under the support order.
2020, c.24, s.22
Debt no defence
42The fact that a payer owes money or has paid money to a person other than the beneficiary is not a defence to a proceeding taken to enforce a support order.
2020, c.24, s.22
Action for arrears
43Notwithstanding the Limitation of Actions Act, there is no limitation period respecting the enforcement of arrears that accrue under a support order.
2020, c.24, s.22
Service of documents
44(1)Subject to the other provisions of this Act respecting service, a notice or document required by this Act or the regulations to be served shall be served in the manner prescribed by regulation.
44(2)If a proceeding is brought to enforce a support order, it is not necessary to prove that the payer was served
(a) with the support order, or
(b) in the case of an agreement filed with the Director under section 6, with notice of the filing of the agreement.
44(3)If a support order is registered in a reciprocating jurisdiction as defined in the Interjurisdictional Support Orders Act under legislation that is substantially similar to that Act, service on an appropriate authority as defined in that Act shall be deemed to be service on the party to the support order who resides in that jurisdiction.
2007, c.37, s.23; 2020, c.24, s.22
Form of payment
45The Director may, in the Director’s sole discretion, refuse to accept any form of payment under a support order, including a personal cheque or legal tender.
2020, c.24, s.22; 2021, c.36, s.4
Appeal
46(1)An appeal lies to The Court of Appeal of New Brunswick from any order made under this Act by the court or a court administrator, and on appeal the order may be confirmed, set aside or varied as the Court of Appeal determines.
46(2)Notwithstanding subsection (1), an order made under this Act may be set aside or varied on appeal only if the Court of Appeal is of the opinion that there has been a miscarriage of justice, and no order shall be set aside on merely technical grounds.
Immunity
47(1)No action for damages or other proceeding shall be taken against the Province, the Director, an employee of the Office of Support Enforcement or any other person with respect to anything done or purported to be done in good faith or with respect to anything omitted to be done in good faith under this Act or the regulations.
47(2)No action for damages or other proceeding shall be taken against a person for providing information in good faith to the Director, a court administrator or the court under the authority of this Act or the regulations.
2020, c.24, s.22
Conflict with Right to Information and Protection of Privacy Act
2013, c.34, s.34
47.1If section 12, 14 or 52 is inconsistent with or in conflict with a provision of the Right to Information and Protection of Privacy Act, other than the provisions of that Act relating to the collection, use or disclosure of personal information in the context of the agreements entered into under section 47.1 of that Act, section 12, 14 or 52, as the case may be, prevails.
2013, c.34, s.34; 2019, c.18, s.4
6
EVIDENTIARY PROVISIONS
Spouses competent and compellable witnesses
48Notwithstanding the Evidence Act, spouses are competent and compellable witnesses against each other in a proceeding to enforce a support order.
2020, c.24, s.22
Documents signed by Director
49(1)A statement of arrears signed by the Director is admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated without prior notice to the other party and without proof of the signature of the Director.
49(2)A statement signed by the Director stating that a support order is filed with the Director is admissible in evidence as conclusive proof of the facts stated without proof of the signature of the Director.
49(3)A document signed by the Director with respect to the enforcement of a support order is admissible in evidence without proof of the signature or official character of the Director.
49(4)If the signature of the Director is required for the purposes of this Act, the signature may be written, engraved, lithographed or reproduced by any other means.
2007, c.37, s.24; 2020, c.24, s.22
Statement of account
50A computer printout showing, as of the date of the printout, the status of the account between the parties to a support order and certified by the Director as being a true statement of the account is admissible in evidence as proof, in the absence of evidence to the contrary, of the status of the account without prior notice to the other party and without proof of the signature of the Director.
2020, c.24, s.22
Certificate signed by Minister of Social Development
2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141
51A certificate signed or purporting to be signed by the Minister of Social Development stating the following is admissible in evidence as proof, in the absence of evidence to the contrary, of the facts in the certificate without proof of the signature or appointment of the person signing the certificate:
(a) that assistance or support has been provided by the Minister of Social Development to or for the benefit of a person named in the certificate,
(b) that support has or has not been provided by any other person, or
(c) the amount of the assistance or support.
2008, c.6, s.40; 2016, c.37, s.186; 2019, c.2, s.141; 2020, c.24, s.22
7
OFFENCES AND PENALTIES
Offences and penalties
52(1)A person who violates or fails to comply with any of the following provisions commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence:
(a) subsection 8(1);
(b) subsection 8(3);
(c) subsection 8(4);
(d) subsection 12(2); and
(e) subsection 37(4).
52(2)A person who violates or fails to comply with any of the following provisions commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence:
(a) subsection 14(1);
(b) subsection 30(2); and
(c) subsection 31(2).
52(3)A person who violates or fails to comply with an order of the court under any of the following provisions commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence:
(a) subsection 13(2);
(b) subsection 14(3);
(c) subsection 18(1); and
(d) subsection 30(3).
52(4)A person who violates or fails to comply with an order of a court administrator under paragraph 31(1)(b) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
52(5)A person who knowingly provides misleading or false information under this Act to the Director, a court administrator or the court commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
52(6)A person who fails or refuses to pay a fine imposed by the court under paragraph 35(1)(b) within the time set by the court for payment commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence.
2007, c.37, s.25
8
REGULATIONS
Regulation-making authority
53The Lieutenant-Governor in Council may make regulations
(a) prescribing types of income sources for the purposes of the definition of “income source” in section 1;
(b) respecting a delegation under subsection 4(3) or (4), including
(i) to whom a delegation may be made,
(ii) the powers, authorities, rights, duties or responsibilities that may be delegated,
(iii) limits or conditions that may be imposed upon a delegation, and
(iv) the manner in which a delegation may be made;
(c) respecting forms and procedures for making and keeping reports, records and other documents with respect to the responsibilities of the Director;
(d) respecting the filing and refiling of support orders or agreements with the Director, including information that is required upon filing or refiling;
(e) prescribing notices for the purposes of this Act and the regulations;
(f) respecting the service, providing or forwarding of notices, information or documents under this Act or the regulations;
(g) Repealed: 2020, c.24, s.22
(h) prescribing methods of payment for payments made to the Director;
(i) respecting the manner in which a payer may make arrangements with an income source under paragraph 8(1)(a);
(j) respecting the filing of and realizing on security, including the form and amount of security that may be filed, the manner in which security may be filed and the manner and procedures for realizing on security;
(k) respecting the withdrawal of a support order filed with the Director, including the manner of applying for the withdrawal and circumstances in which a support order may be withdrawn;
(l) respecting rules of procedure concerning court proceedings or an appeal under this Act, including the form and manner of making an application to the court;
(l.1) prescribing circumstances in which the Director may enforce a lesser amount of support than that set out in a support order for the purposes of subsection 10.3(3);
(m) respecting the production of income, financial or other information under this Act;
(n) prescribing provincial information banks for the purposes of subsection 12(3);
(o) respecting procedures concerning the disclosure and protection of confidential information;
(o.1) prescribing information that may be disclosed to a child support service;
(p) respecting the issuance of a payment order;
(q) prescribing forms for the purposes of this Act or the regulations;
(q.1) authorizing the Minister to provide forms for the purposes of this Act and the regulations;
(r) respecting the revocation of a payment order, including the manner of applying for the revocation;
(s) respecting the revocation of the driver’s licence and suspension of the driving privileges of a payer or the imposition of restrictions on a driver’s licence under section 26, including prescribing related notices and fees;
(t) prescribing the amount of arrears under a support order that a payer must owe before the Director may act under subsection 26(1) or 27(1);
(u) prescribing information that may be disclosed to a credit reporting agency under section 27;
(v) respecting the form and manner in which information may be disclosed to a credit reporting agency under section 27;
(w) prescribing the amount of arrears under a support order that a payer must owe before a corporation is jointly and severally liable under section 28 or 29;
(x) prescribing a financial statement for the purposes of paragraph 30(1)(a) or 30(3)(a) or subparagraph 31(1)(a)(i);
(y) prescribing information and documents for the purposes of paragraph 30(1)(b) or 30(3)(b) or subparagraph 31(1)(a)(ii);
(z) Repealed: 2010, c.21, s.6
(aa) respecting the issuance of certificates under this Act;
(bb) prescribing the interest rate and manner of calculating interest on arrears under a support order;
(cc) prescribing fees, the services and enforcement actions for which fees may be charged and the persons to whom fees may be charged;
(dd) respecting the crediting of money paid on account of a support order;
(dd.1) prescribing sources for the purposes of subsection 40(3);
(ee) respecting the conversion of amounts in a support order into Canadian currency if the amounts are expressed in a foreign currency;
(ff) respecting the calculation and payment of arrears;
(gg) respecting the procedure for determining the apportionment of payments if a payer has support obligations to multiple beneficiaries;
(hh) respecting the recovery of costs incurred by the Director or a court administrator under this Act or the regulations;
(ii) defining any word or phrase used but not defined in this Act;
(jj) prescribing anything required or authorized by this Act to be prescribed by regulation;
(kk) generally for the better administration of this Act.
2007, c.37, s.26; 2010, c.21, s.6; 2020, c.24, s.22
9
TRANSITIONAL PROVISIONS
Transitional provisions
54(1)A support order that is filed with The Court of Queen’s Bench of New Brunswick under Part VII of the Family Services Act immediately before the commencement of this section shall be deemed to be filed with the Director of Support Enforcement on the commencement of this section.
54(2)A support order that is deemed to be filed with the Director of Support Enforcement under subsection (1) shall be deemed to have been filed with the Director by the person who filed the support order with The Court of Queen’s Bench of New Brunswick.
54(3)An agreement that is filed with The Court of Queen’s Bench of New Brunswick under the authority of subsection 134(1.1) of the Family Services Act immediately before the commencement of this section shall be deemed to be filed with the Director of Support Enforcement on the commencement of this section.
54(4)An agreement that is deemed to be filed with the Director of Support Enforcement under subsection (3) shall be deemed to have been filed with the Director by the person who filed the agreement with The Court of Queen’s Bench of New Brunswick.
54(5)A Payment Order made under Part VII of the Family Services Act that is in effect immediately before the commencement of this section shall be deemed to be a payment order issued under subsection 15(1) of this Act on the commencement of this section.
10
CONSEQUENTIAL AMENDMENTS
Family Income Security Act
55(1)The heading “APPLICATION AND PAYMENT UNDER FAMILY SERVICES ACT” preceding section 11 of the Family Income Security Act, chapter F-2.01 of the Acts of New Brunswick, 1994, is amended by striking out “APPLICATION AND”.
55(2)Subsection 11(1) of the Act is amended by striking out “Part VII of the Family Services Act” and substituting “the Support Enforcement Act”.
Family Services Act
56(1)Section 111 of the Family Services Act, chapter F-2.2 of the Acts of New Brunswick, 1980, is amended
(a) by repealing the definition “court administrator”;
(b) by repealing the definition “income source”.
56(2)Section 116 of the Act is amended
(a) by repealing subsection (6) and substituting the following:
116(6)Unless an order to provide support otherwise provides, the order terminates upon the death of the person having the obligation to provide support, and liability for any unpaid amounts due under the order is a debt of his or her estate.
(b) by adding after subsection (6) the following:
116(7)Notwithstanding subsection (6), on application, a court may relieve the estate of a person having an obligation to provide support from liability for all or part of any unpaid amount under a support order if the court is satisfied that it would be grossly unfair to the estate not to do so.
116(8)Upon the death of a person in whose favour a support order was made, any unpaid amounts due under the support order at the time of the person’s death are a debt due to his or her estate.
56(3)Section 119 of the Act is amended by striking out “an appearance to a notice under section 123” and substituting “section 33 of the Support Enforcement Act”.
56(4)Section 121.1 of the Act is repealed.
56(5)Section 122 of the Act is amended
(a) in paragraph (1)(b) by striking out “support,”;
(b) in subsection (1.01) by striking out “support,”;
(c) in subsection (1.1) by striking out “support,”.
56(6)Section 122.1 of the Act is amended
(a) in subsection (2) by striking out “support,”;
(b) in subsection (4) by striking out “support,”;
(c) in subsection (8) by striking out “support,”.
56(7)Section 122.2 of the Act is repealed.
56(8)Section 122.3 of the Act is repealed.
56(9)Section 122.4 of the Act is repealed.
56(10)Section 122.5 of the Act is repealed.
56(11)Section 123 of the Act is repealed.
56(12)Section 123.1 of the Act is repealed.
56(13)Section 123.2 of the Act is repealed.
56(14)Section 123.3 of the Act is repealed.
56(15)Section 123.4 of the Act is repealed.
56(16)Section 124 of the Act is amended
(a) by repealing subsection (3);
(b) by repealing subsection (4).
56(17)Section 125 of the Act is repealed.
56(18)Section 126 of the Act is repealed.
56(19)Section 126.1 of the Act is repealed.
56(20)Subsection 134(1.1) of the Act is repealed.
56(21)Section 136 of the Act is repealed.
56(22)Section 143 of the Act is amended
(a) by repealing paragraph (pp);
(b) by repealing paragraph (pp.1);
(c) by repealing paragraph (pp.2);
(d) by repealing paragraph (pp.3);
(e) by repealing paragraph (pp.4);
(f) by repealing paragraph (pp.5);
(g) by repealing paragraph (pp.6);
(h) by repealing paragraph (pp.7);
(i) by repealing paragraph (pp.8);
(j) by repealing paragraph (rr.1);
(k) by repealing paragraph (rr.2);
(l) by repealing paragraph (rr.3);
(m) by repealing paragraph (rr.4);
(n) by repealing paragraph (rr.5);
(o) by repealing paragraph (rr.6).
56(23)Schedule A of the Act is amended by striking out
121.1(9)..............
E
122.1(5)..............
E
123(1.1)..............
E
123.2(2)..............
E
125(5.1)..............
E
125(5.2)..............
E
and substituting the following:
122.1(5)..............
E
Interjurisdictional Support Orders Act
57(1)Section 1 of the Interjurisdictional Support Orders Act, chapter I-12.05 of the Acts of New Brunswick, 2002, is amended by repealing the definition “court administrator” and substituting the following:
“court administrator” means a person appointed as an administrator under section 68 of the Judicature Act; (administrateur de la cour)
57(2)Section 18 of the Act is amended
(a) in subsection (4) by striking out “section 122.2 of the Family Services Act” and substituting “paragraph 5(1)(b) of the Support Enforcement Act”;
(b) by repealing subsection (5) and substituting the following:
18(5)The provisions of the Support Enforcement Act apply with the necessary modifications to the enforcement of an order filed under subsection (4).
Judicature Act
58Schedule B of the Judicature Act, chapter J-2 of the Revised Statutes of New Brunswick, 1973, is amended by adding after “Reciprocal Enforcement of Judgments Act” the following:
Support Enforcement Act
Motor Vehicle Act
59(1)The Motor Vehicle Act, chapter M-17 of the Revised Statutes of New Brunswick, 1973, is amended by adding after section 309.2 the following:
309.3(1)On receiving directions from the Director of Support Enforcement under subsection 26(1) or (3) of the Support Enforcement Act, the Registrar shall, with respect to the person named in the directions and in accordance with the directions,
(a) revoke the person’s licence and suspend the person’s driving privileges, or
(b) impose the specified restrictions on the person’s licence.
309.3(2)On receiving directions from the Director of Support Enforcement under subsection 26(4) of the Support Enforcement Act, the Registrar shall, with respect to the person named in the directions and in accordance with the directions,
(a) reinstate a licence revoked and driving privileges suspended under this section, or
(b) revoke restrictions imposed on a licence under this section.
309.3(3)The Registrar shall reinstate a licence and driving privileges, revoke restrictions imposed on a licence or impose restrictions on a licence in accordance with an order of the court under subsection 26(6) or (8) of the Support Enforcement Act.
309.3(4)Notwithstanding subsections (2) and (3), the Registrar shall not reinstate a licence and driving privileges under subsection (2) or (3) unless the Registrar is satisfied that the person meets all the requirements for the issuance of a licence.
309.3(5)The Registrar may either issue a special restricted licence or may set forth the restrictions imposed under this section upon the usual licence form.
309.3(6)A person who holds a restricted licence under this section and drives a motor vehicle in contravention of any restriction imposed by the Registrar and set forth upon the licence commits an offence.
309.3(7)The Registrar may suspend or revoke the licence of any person convicted of an offence under subsection (6).
309.3(8)Notwithstanding any other provision of this Act, sections 311 to 315 do not apply to any action of the Registrar taken under the authority of this section.
59(2)Section 310.1 of the Act is repealed and the following is substituted:
310.1(1)Prior to the driving privileges of a person being reinstated under this Act where the person’s driving privileges were suspended pursuant to subsection 298(4), or section 298.1, 300, 302, 309.3 or 310.04, subsection 302.1(1) or 310.18(1), paragraph 310.18(2)(a) or subsection 310.18(4) or (5), that person shall pay a fee for the reinstatement.
310.1(2)A person that is issued a replacement licence in the following circumstances shall pay a fee for the replacement:
(a) a licence is issued with restrictions imposed upon the licence pursuant to subsection 309.3(1) or (3); and
(b) a licence is issued after restrictions are revoked pursuant to subsection 309.3(2) or (3).
59(3)Schedule A of the Act is amended by striking out
290(5)..............
C
and substitute the following:
290(5)..............
C
309.3(6)..............
F
2007, c.44, s.24
An Act to Amend the Family Services Act
60Section 6 of An Act to Amend the Family Services Act, chapter 60 of the Acts of New Brunswick, 1991, is repealed.
11
COMMENCEMENT
Commencement provision
61This Act or any provision of it comes into force on a day or days to be fixed by proclamation.
N.B. Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, subsections 31(1), (2), (3) and (4), sections 32, 33, 34, 35, 36, 37, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 and 60 of this Act were proclaimed and came into force February 11, 2008.
N.B. Sections 24 and 38 of this Act were repealed by the Statute Repeal Act, 2012, c.13, in force December 31, 2015.
N.B. This Act is consolidated to June 16, 2023.