Family Law Statutes Amendment Act, 2010 (Unproclaimed Sections Only)

Link to law: http://www.qp.alberta.ca/1266.cfm?page=2010ch16_unpr.cfm&leg_type=Acts&isbncln=9780779761128&display=html
Published: 2011-12-08

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FAMILY LAW STATUTES AMENDMENT ACT, 2010 FAMILY LAW STATUTES AMENDMENT ACT, 2010
Chapter 16
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:
Interjurisdictional Support Orders Act
Amends SA 2002 cI‑3.5
2(1)  The Interjurisdictional Support Orders Act is amended by this section.
(2)  Section 1(k) is repealed and the following is substituted:
                             (k)    “support order” means
                                     (i)    an order made by a court or an administrative body requiring the payment of support, or
                                    (ii)    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 of that jurisdiction,
                                      and includes 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;
(3)  The heading preceding section 5 is amended by striking out “Ordinarily” and substituting “Habitually”.
(4)  Section 5(1) is repealed and the following is substituted:
Support application
5(1)  Where a claimant lives in Alberta and believes that the respondent habitually resides in a reciprocating jurisdiction, the claimant may start a process in Alberta that could result in a support order being made in the reciprocating jurisdiction.
(5)  The heading preceding section 8 is amended by striking out “Ordinarily” and substituting “Habitually”.
(6)  Section 10 is amended
                             (a)    in subsection (3) by striking out “18” and substituting “12”;
                             (b)    by adding the following after subsection (3):
(3.1)  Subsection (3) as amended by section 2(6)(a) of the Family Law Statutes Amendment Act, 2010 applies to a direction by the court under subsection (2)(a) made after the coming into force of this subsection.
(7)  Section 12(1) is repealed and the following is substituted:
Choice of law
12(1)  In determining the entitlement to support for a child, the Alberta court must first apply the law of Alberta, but if the child is not entitled to support under that law, the Alberta court must apply the law of the jurisdiction in which the child habitually resides.
(1.1)  Subsection (1) as amended by section 2(7) of the Family Law Statutes Amendment Act, 2010 applies in respect of a support application heard by the Alberta court after the coming into force of this subsection.
(8)  Section 13 is amended by adding the following after subsection (4):
(5)  If an order made under this section does not specify the law applied, it is presumed that the Alberta court applied the law of Alberta.
(9)  Section 18 is amended by adding the following after subsection (3):
(4)  Unless otherwise stated in the order, the duration of the requirement to pay support in an order registered under subsection (1) is governed by the law of the jurisdiction pursuant to which the order was made.
(5)  If, in the case of an order filed with the Director of Maintenance Enforcement, the Director cannot in the Director’s opinion determine the law of the jurisdiction pursuant to which the order was made from the material received from the applicant or the reciprocating jurisdiction, the Director may apply Alberta law to determine the duration of the requirement to pay support.
(9.1)  Section 19(1) is amended by striking out “ordinarily”.
(10)  Section 19(5) is repealed and the following is substituted:
(5)  For the purposes of subsection (3)(b)(iii), the Alberta court must consider the foreign court to have had jurisdiction if the Alberta court finds that
                                    (a)    both parties to the foreign order habitually resided in the reciprocating jurisdiction outside Canada, or
                                   (b)    a party who did not habitually reside in the reciprocating jurisdiction outside Canada was, under the conflict‑of‑law rules of Alberta, subject to the jurisdiction of the court that made the foreign order.
(11)  The heading preceding section 24 is amended by striking out “Ordinarily” and substituting “Habitually”.
(12)  Section 24(1) is repealed and the following is substituted:
Application to vary support order
24(1)  Where an applicant lives in Alberta and believes that the respondent habitually resides in a reciprocating jurisdiction, the applicant may start a process in Alberta that could result in a support variation order being made in the reciprocating jurisdiction.
(13)  The heading preceding section 28 is amended by striking out “Ordinarily” and substituting “Habitually”.
(14)  Section 30 is amended
                             (a)    in subsection (3) by striking out “18” and substituting “12”;
                             (b)    by adding the following after subsection (3):
(3.1)  Subsection (3) as amended by section 2(14)(a) of the Family Law Statutes Amendment Act, 2010 applies to a direction of the court under subsection (2)(a) made after the coming into force of this subsection.
(15)  Section 31(1) and (2) are repealed and the following is substituted:
Choice of law
31(1)  In determining the entitlement to receive or continue to receive support for a child, the Alberta court must first apply the law of Alberta, but if the child is not entitled to support under that law, the Alberta court must apply the law of the jurisdiction in which the child habitually resides.
(2)  In determining the amount of support for a child, the Alberta court must apply the law of Alberta.
(2.1)  For greater certainty, the law of Alberta includes Alberta Child Support Guidelines (AR 147/2005).
(2.2)  This section as amended by section 2(15) of the Family Law Statutes Amendment Act, 2010 applies in respect of a support variation application heard by the Alberta court after the coming into force of this subsection.
(15.1)  Section 34 is amended by striking out “ordinarily”.
(16)  Section 35 is repealed and the following is substituted:
Jurisdiction
35(1)  This Division applies to the variation of a support order referred to in subsection (2), other than a variation that is commenced by a support variation application under Division 1 or 2.
(2)  The Alberta court may, on a party’s application and after taking into account any right of a government or agency of a government under section 42, vary
                                    (a)    a support order made or registered in Alberta under Part 2 or under the former Act
                                           (i)    if both the applicant and the respondent accept the Alberta court’s jurisdiction, or
                                          (ii)    if the respondent habitually resides in Alberta,
                                        or
                                   (b)    a support order if the applicant habitually resides in Alberta and the respondent
                                           (i)    no longer habitually resides in a reciprocating jurisdiction, or
                                          (ii)    habitually resides in a reciprocating jurisdiction that cannot under its laws, or will not, facilitate the determination of a support variation application under Division 1.
(3)  For the purposes of varying a support order under this section, the Alberta court must apply the law that would have applied if the registered order had been made in Alberta.
(17)  The following provisions are amended by striking out “ordinarily resides” wherever it occurs and substituting “habitually resides”:
section 5(2)(b); section 6(2)(b); section 7(1); section 9(1) to (3); section 24(2)(c); section 25(2)(b); section 26; section 27(1); section 29(1), (2), (3)(c); section 31(4) and (5).
(18)  This section comes into force on Proclamation.
2010 c16 s2;2011 c20 s6
Maintenance Enforcement Act
Amends RSA 2000 cM‑1
3(1)  The Maintenance Enforcement Act is amended by this section.
(5)  Section 25.1 is amended
                             (a)    by adding the following after subsection (4):
(4.1)  If a creditor or another person on behalf of a creditor makes a payment to the Director in respect of an amount owing under this Act by cheque, pre‑authorized withdrawal or money order and
                                    (a)    the cheque or withdrawal is dishonoured on the grounds that no funds or insufficient funds were available, or
                                   (b)    a stop payment order is placed on the cheque, withdrawal or money order,
the Director may require the creditor to pay a charge in an amount set in the regulations.
                             (b)    in subsection (5) by striking out “subsection (4)” and substituting “subsection (4) or (4.1)”.
(6)  The following is added after section 25.1:
Amounts owed by creditors
25.2(1)  In this section, “overpayment” means an amount paid to a creditor that should not have been paid because
                                    (a)    the creditor did not give information to the Director that, in the opinion of the Director, was necessary to determine an enforceable amount of maintenance,
                                   (b)    the Director made an accounting error, or
                                    (c)    of some other circumstance provided for in the regulations.
(2)  Where a creditor owes a fee or charge imposed under this Act or the child support recalculation program under the Family Law Act, the Director may enforce the payment by the creditor of the amount of the fee and charge owing by the creditor in the same manner as a maintenance order may be enforced against a debtor under this Act.
(3)  Where the Director determines that an overpayment has been made, the Director may enforce the repayment by the creditor of the amount of the overpayment in the same manner as a maintenance order may be enforced against a debtor under this Act.
Updating contact information
25.3(1)  A debtor shall, in the prescribed manner, immediately notify the Director of any change to the debtor’s
                                    (a)    residential address, telephone number, e‑mail address and other contact information required by the regulations, and
                                   (b)    employment, income and other financial information required by the regulations.
(2)  A creditor shall, in the prescribed manner, immediately notify the Director of any change to the creditor’s residential address, telephone number, e‑mail address and other contact information required by the regulations.
(7)  Section 32 is repealed and the following is substituted:
Stay of enforcement
32(1)  If the Director has issued a support deduction notice or a creditor has obtained an order for payment under section 19, the debtor may apply to the Court of Queen’s Bench for a stay of those proceedings, and a copy of the application must be served by the applicant on the Director and the creditor.
(2)  A stay of enforcement may be granted under this section with respect to the issuance of a support deduction notice only if the Court is satisfied that
                                    (a)    the debtor has made attempts to establish a payment arrangement with the Director and there was a valid reason why the debtor was unable to enter into an arrangement, and
                                   (b)    the debtor has a valid reason for not paying arrears or periodic maintenance payments during the period the stay of enforcement is in effect.
(3)  Unless the Court provides otherwise, a stay of enforcement
                                    (a)    applies to the enforcement of arrears but does not apply to the enforcement of periodic maintenance payments from the time the stay is entered with the Court,
                                   (b)    does not stay enforcement against lump sum or non‑periodic amounts that are payable to the debtor, and
                                    (c)    terminates 9 months after it is entered with the Court.
(4)  Notwithstanding subsection (1), a stay of enforcement does not stay or affect
                                    (a)    any enforcement proceedings respecting the payment of maintenance carried out in relation to a federal enactment,
                                   (b)    any registration or filing made by the Director under the Land Titles Act or in the Personal Property Registry, or
                                    (c)    any proceeding or action taken under section 22.
(5)  An order may not be granted by a court under any other enactment or otherwise that has the effect of staying a matter referred to in subsection (1) or suspending or staying any proceeding, matter or action referred to in subsection (4).
(6)  If a stay of enforcement is granted under this section, the Court of Queen’s Bench may direct that any money or any portion of the money paid into the Court or to the Director in respect of the proceedings that were stayed and that is still in the possession of or under the control of the Court or the Director, as the case may be, be paid to the debtor.
(8)  Section 45 is amended by adding the following after clause (b):
                                (b.1)    specifying a business, corporation, association or organization as a business organization for the purpose of section 13(1)(a);
                                (b.2)    respecting other circumstances for the purpose of section 25.2(1)(c);
                                (b.3)    respecting the manner in which notification of any change in information of a debtor or creditor referred to in section 25.3 is to be made;
                                (b.4)    respecting other contact information and other financial information for the purpose of section 25.3;
(9)  This section, except subsections (1), (2), (3) and (4), comes into force on Proclamation.