Family Responsibility and Support Arrears Enforcement Amendment Act, 2005, S.O. 2005, c. 16 - Bill 155
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chapter 16
An Act to amend the
Family Responsibility and Support
Arrears Enforcement Act, 1996
and to make consequential
amendments to the Fish and Wildlife
Conservation Act, 1997
Assented to June 13, 2005
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. (1) Subsection 1 (1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, as amended by the Statutes of Ontario, 1999, chapter 6, section 26 and 2002, chapter 13, section 57, is amended by adding the following definition:
“reciprocating jurisdiction” has the same meaning as in the Interjurisdictional Support Orders Act, 2002; (“autorité pratiquant la réciprocité”)
(2) The definition of “support order” in subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1999, chapter 6, section 26, is amended by adding the following clause:
(e.1) payment of expenses in respect of DNA testing to establish parentage,
2. The Act is amended by adding the following section:
Interest
7.1 (1) If the recipient under a support order is entitled to interest on arrears, the Director may add interest to the arrears and collect the interest in the same manner as the arrears.
Rate of interest and manner of calculation
(2) Interest added and collected under subsection (1) shall be calculated,
(a) by the Director, at the rate and in the manner prescribed by the regulations; or
(b) by the recipient, at the rate and in the manner required by the support order.
When interest begins to accrue
(3) Interest added and collected under subsection (1) begins to accrue on the latest of the following:
1. The date the support becomes payable.
2. The date the arrears become payable.
3. The date the support order or support deduction order is filed with the Director.
4. The day section 2 of the Family Responsibility and Support Arrears Enforcement Amendment Act, 2005 comes into force.
Exception
(4) No interest is payable on support that is paid within 30 days after the day on which it becomes payable.
Non-application of Courts of Justice Act, s. 129
(5) Section 129 of the Courts of Justice Act does not apply to interest calculated by the Director under clause (2) (a).
3. Section 8 of the Act is repealed and the following substituted:
Director to cease enforcement
Termination of support obligation
8. (1) The Director shall cease enforcement of a support obligation provided for in a support order or support deduction order filed in the Director’s office if the support obligation has terminated.
Agency’s consent required
(2) Despite subsection (1), if the support order has been assigned to an agency described in subsection 33 (3) of the Family Law Act, the Director shall not cease enforcement without the agency’s consent.
Payor’s death
(3) The Director shall not enforce a support order or support deduction order against the estate of a payor after he or she is notified, in accordance with the regulations, of the payor’s death.
How termination is determined
(4) For the purpose of subsection (1), a support obligation is terminated if,
(a) the parties to the support order or support deduction order agree, in the manner prescribed by the regulations, that the support obligation has terminated;
(b) the support order or support deduction order states that the support obligation terminates on a set calendar date, and that date arrives; or
(c) a court orders that the obligation has terminated.
Notice to Director
(5) If a support order or related support deduction order is filed in the Director’s office, each party to the support order shall give the Director notice of the termination of a support obligation under the order, in the manner and at the time prescribed by the regulations.
Disputes
(6) If the parties to the support order do not agree or if the agency referred to in subsection (2) does not consent, the court that made the support order shall, on the motion of a party to the support order or of the agency,
(a) decide whether the support obligation has terminated; and
(b) make an order to that effect.
Same
(7) If the support order was not made by a court, the order described in subsection (6) shall be made by the Ontario Court of Justice or the Family Court.
Same
(8) If an issue as to whether the support obligation has terminated arises within an application between the parties, it is not necessary to make a separate motion under subsection (6).
Order to repay
(9) A court that finds that a support obligation has terminated may order repayment in whole or in part from a person who received support after the obligation was terminated if the court is of the opinion that the person ought to have notified the Director that the support obligation had terminated.
Same
(10) In determining whether to make an order under subsection (9), the court shall consider the circumstances of each of the parties to the support order.
Role of Director
(11) An order under subsection (9) is not a support order and shall not be enforced by the Director.
Continued enforcement
(12) The Director shall continue to enforce the support obligation until he or she receives a copy of the court’s order terminating the support obligation.
Same
(13) Despite the termination of a support obligation, the Director shall continue to enforce the support obligation in respect of any arrears that have accrued.
Director not a party
(14) The Director is not a party to,
(a) a proceeding to determine a person’s entitlement to support under a support order; or
(b) a motion to decide whether a support obligation has terminated.
Director’s discretion
8.1 (1) Despite section 5, the Director has discretion to discontinue enforcement of a support order or support deduction order that is filed in the Director’s office if,
(a) the payor notifies the Director that the support obligation has terminated;
(b) the Director serves on the recipient a request to confirm or deny that the support obligation has terminated; and
(c) the recipient does not respond in writing within 20 days after being served.
Reinstatement
(2) If, after enforcement has been discontinued in accordance with subsection (1), the Director receives a written notice from the recipient denying that the support obligation has terminated, the Director may resume enforcement.
Discretion to enforce for lesser amount if child’s entitlement ceases
8.2 (1) If the conditions set out in subsection (2) are satisfied with respect to a support order or support deduction order, the Director may exercise discretion to enforce a lesser amount of support in accordance with the table set out in the applicable child support guidelines.
Conditions
(2) The conditions referred to in subsection (1) are:
1. The order was made in accordance with the table set out in the applicable child support guidelines.
2. It has been agreed under clause 8 (4) (a) that the support obligation under the order has terminated with respect to a child.
3. The support obligation under the order still continues with respect to another child.
4. The order states,
i. the number of children, and
ii. the total amount of support determined in accordance with the table.
4. Subsections 10 (2) and (3) of the Act are repealed and the following substituted:
New orders to be made
(2) When a support order is changed and the changed order is a support order as defined in subsection 1 (1), the court shall also make a support deduction order to reflect the change.
Transition
(3) When a support order, within the meaning of the Family Support Plan Act as it read immediately before its repeal by this Act, is changed and the changed order is a support order as defined in subsection 1 (1), the court shall also make a support deduction order to reflect the change.
5. (1) Subsection 14 (1) of the Act, as re-enacted by the Statutes of Ontario, 1997, chapter 25, Schedule E, section 2 and amended by 2002, chapter 17, Schedule F, Table, is amended by striking out “notice to withdraw under subsection 16 (1)” in the portion before paragraph 1 and substituting “notice to withdraw under subsection 16 (1.1)”.
(2) Section 14 of the Act, as re-enacted by the Statutes of Ontario, 1997, chapter 25, Schedule E, section 2 and amended by 2002, chapter 17, Schedule F, Table, is amended by adding the following subsection:
Same, reciprocating jurisdiction
(1.1) If a recipient has applied and is eligible for, or has received, social assistance benefits in a reciprocating jurisdiction, or if a support order has been assigned to a social assistance provider in a reciprocating jurisdiction, the support order may be filed in the Director’s office by the social assistance provider in the reciprocating jurisdiction, whether or not the payor and recipient have given a notice to withdraw under subsection 16 (1.1).
(3) Subsection 14 (2) of the Act, as re-enacted by the Statutes of Ontario, 1997, chapter 25, Schedule E, section 2, is amended by striking out “under subsection (1)” and substituting “under subsection (1) or (1.1)”.
6. Subsection 16 (1) of the Act is repealed and the following substituted:
Withdrawal of orders
(1) A support order or support deduction order filed in the office of the Director may be withdrawn at any time, as described in subsection (1.1), unless the support order states that it and the related support deduction order cannot be withdrawn from the Director’s office.
Method
(1.1) Withdrawal is effected by a written notice signed by,
(a) the recipient and the payor, if the payor is in compliance as defined in the regulations; or
(b) the recipient, if the payor is not in compliance as defined in the regulations.
7. The English version of clause 18 (a) of the Act is amended by striking out “through the support deduction order” and substituting “by means of the support deduction order”.
8. Section 19 of the Act is repealed and the following substituted:
Updating contact information
19. (1) A payor or recipient under a support order or support deduction order that is filed in the Director’s office shall, within 10 days after any change in information listed in subsection (2), advise the Director of the details.
Same
(2) Subsection (1) applies with respect to,
(a) the payor’s or recipient’s home address, and the mailing address if different from the home address;
(b) all telephone numbers of the payor or recipient; and
(c) other contact information, such as the payor’s or recipient’s work address, fax number or e-mail address, if the payor or recipient has previously provided that contact information to the Director.
9. Subsection 20 (1) of the Act is repealed and the following substituted:
Director to enforce support deduction orders
(1) The Director shall enforce a support deduction order that is filed in the Director’s office, subject to section 7, to any change made to the support deduction order and to any alternative payment order made under section 28, until the related support order is terminated and there are no arrears owing or until the support order and support deduction order are withdrawn.
10. (1) Clause 21 (3) (a) of the Act is amended by striking out “Ontario Court (General Division)” and substituting “Superior Court of Justice”.
(2) Clause 21 (3) (c) of the Act is amended by striking out “Ontario Court (Provincial Division)” and substituting “Ontario Court of Justice”.
(3) Subsection 21 (4) of the Act is repealed and the following substituted:
Alternative payment order
(4) The payor may, within 30 days after being served with the notice under subsection (2), make a motion for an alternative payment order under section 28, in the court that is deemed to have made the support deduction order.
(4) The English version of subsection 21 (5) of the Act is amended by striking out “brought” and substituting “made”.
11. Section 22 of the Act is amended by adding the following subsection:
Electronic payment
(2.1) The income source may make the payments by a prescribed method of electronic transmission.
12. The English version of subsection 23 (4) of the Act is amended by striking out “bring” and substituting “make”.
13. (1) The English version of subsection 26 (2) of the Act is amended by striking out “bring” and substituting “make”.
(2) The English version of subsection 26 (3) of the Act is amended by striking out “bring” in the portion before clause (a) and substituting “make”.
(3) The English version of subsection 26 (5) of the Act is amended by striking out “brought” and substituting “made”.
(4) The English version of subsection 26 (6) of the Act is amended by striking out “brought” and substituting “made”.
14. (1) Clause 27 (1) (b) of the Act is amended by striking out “a suspension order” and substituting “an alternative payment order”.
(2) The English version of subsection 27 (6) of the Act is amended by striking out “vary” and substituting “change”.
(3) The English version of subsection 27 (7) of the Act is amended by striking out “vary” and substituting “change”, and by striking out “varied” and substituting “changed”.
15. Section 28 of the Act, as amended by the Statutes of Ontario, 1997, chapter 25, Schedule E, section 2, is repealed and the following substituted:
Alternative payment order
28. (1) A court that makes a support deduction order may make an order requiring the payor to make payments directly to the Director, at the same time as it makes the support deduction order, or subsequently on motion.
Same
(2) A court that is deemed to have made a support deduction order may, on a motion made under subsection 21 (4), make an order requiring the payor to make payments directly to the Director.
Effect on support order and support deduction order
(3) An alternative payment order made under subsection (1) or (2) suspends the support deduction order, but it does not affect the payor’s obligations under the support order nor does it affect any other means of enforcing the support order.
Criteria
(4) The court may make an alternative payment order under subsection (1) or (2) only if,
(a) it finds that it would be unconscionable, having regard to all of the circumstances, to require the payor to make support payments by means of a support deduction order; or
(b) the parties to the support order agree that they do not want support payments collected by means of a support deduction order and the court requires the payor to post such security as it considers adequate and in accordance with the regulations.
Agency’s consent required
(5) If the support order has been assigned to an agency described in subsection 33 (3) of the Family Law Act or if there are arrears owing to the agency from a past assignment, the court shall not make an alternative payment order in the circumstances described in clause (4) (b) without the agency’s consent.
Unconscionable, determination
(6) The following shall not be considered by a court in determining whether it would be unconscionable to require a payor to make support payments by means of a support deduction order:
1. The fact that the payor has demonstrated a good payment history in respect of his or her debts, including support obligations.
2. The fact that the payor has had no opportunity to demonstrate voluntary compliance in respect of support obligations.
3. The fact that the parties have agreed to the making of an alternative payment order.
4. The fact that there are grounds upon which a court might find that the amount payable under the support order should be changed.
Security
(7) For the purposes of clause (4) (b), security shall be in a minimum amount equal to the support payable for four months and the security shall be in money or in such other form as may be prescribed in the regulations.
When Director is a party
(8) The Director is not a party to a motion made to obtain an alternative payment order, but if the motion relates to a support deduction order deemed to have been made under section 21, the Director,
(a) shall also be served with notice of the motion; and
(b) may be added as a party.
When agency is a party
(9) If the support order was filed in the Director’s office by an agency under subsection 14 (1), or has been assigned to an agency referred to in that subsection, the agency,
(a) shall also be served with notice of the motion; and
(b) may be added as a party.
Completion of form, etc.
(10) An alternative payment order shall be completed and signed by the court or by the clerk or registrar of the court at the time it is made and shall be entered in the court records promptly after it is signed.
Prompt filing
(11) The clerk or registrar of the court that makes an alternative payment order shall file it in the Director’s office promptly after it is made.
Form and effective date
(12) An alternative payment order shall be in the form prescribed by the regulations and takes effect only when it is filed in the Director’s office and every income source affected by the alternative payment order has received notice of it and of its effect on the support deduction order.
Termination of alternative payment order
(13) An alternative payment order is automatically terminated if the payor fails to post security of the type or within the time period set out in the alternative payment order or if the payor fails to comply with the support order.
Effect of termination
(14) When an alternative payment order is terminated under subsection (13), the support deduction order is reinstated and the Director may immediately realize on any security that was posted.
Effect of withdrawing support order and support deduction order
(15) If the support order and the related support deduction order are withdrawn from the Director’s office while an alternative payment order is in effect, the alternative payment order is terminated and the Director shall repay to the payor any security that was posted.
Effect of changing support order or support deduction order
(16) If the support order or the related support deduction order is changed while an alternative payment order is in effect, the alternative payment order is terminated and the Director shall repay to the payor any security that was posted.
Transition
(17) A suspension order made under this section as it read on the day before section 15 of the Family Responsibility and Support Arrears Enforcement Amendment Act, 2005 came into force has the same effect as an alternative payment order, and this Act applies to the suspension order as if it were an alternative payment order.
16. Subsection 30 (2) of the Act is repealed and the following substituted:
Same
(2) If an income source is required to make payments to the Director under a support deduction order and the income source receives a garnishment notice related to the same support obligation, the income source shall make full payment under the support deduction order and the garnishment shall be of no effect until the income source has received notice from the Director that an alternative payment order has been made or that the support deduction order is terminated or withdrawn from the Director’s office.
17. The English version of section 31 of the Act is amended by striking out “vary” and substituting “change”.
18. Section 35 of the Act is repealed and the following substituted:
Order to refrain
35. (1) A payor who receives a first notice and makes a motion to change the support order may also, on notice to the Director, make a motion for an order that the Director refrain from directing the suspension of the payor’s driver’s licence under subsection 37 (1), on the terms that the court considers just, which may include payment terms.
Interjurisdictional Support Orders Act, 2002
(2) For the purposes of this section, submitting a support variation application to the designated authority in Ontario under the Interjurisdictional Support Orders Act, 2002 has the same effect as making a motion to change a support order.
Effect on arrears
(3) Payment terms that are included in an order to refrain do not affect the accruing of arrears, nor do they affect any other means of enforcing the support order.
Exceptions
(4) Despite subsection (1), a motion for an order to refrain may be made,
(a) before making a motion to change the support order, on the undertaking of the payor or the payor’s lawyer to obtain, within 20 days after the date of the order to refrain, a court date for the motion to change the support order; or
(b) without making a motion to change the support order, if the payor has started an appeal of the support order and the appeal has not been determined.
Court with jurisdiction to change support order
(5) A motion for an order to refrain shall be made in the court that has jurisdiction to change the support order.
Same
(6) The court that has jurisdiction to change a support order is,
(a) in the case of a support order that was made in Ontario,
(i) the court that made the support order, unless subclause (ii) applies,
(ii) if the support order is a provision in a domestic contract or paternity agreement, the Ontario Court of Justice or the Family Court; and
(b) in the case of a support order that was made outside Ontario,
(i) if the support order was made under the Divorce Act (Canada), the Superior Court of Justice or the Family Court,
(ii) if the support order is registered under the Interjurisdictional Support Orders Act, 2002, the court in Ontario that has jurisdiction under that Act to vary the support order.
Financial statement and proof of income
(7) A payor who makes a motion for an order to refrain shall serve and file,
(a) a financial statement, in the form prescribed by the regulations or in the form prescribed by the rules of court; and
(b) such proof of income as may be prescribed by the regulations.
Exception, undertaking
(8) Despite clause (7) (b), if the payor is unable to serve and file the proof of income before the motion is heard, the court may make the order to refrain subject to the undertaking of the payor or the payor’s lawyer to serve and file the proof of income within 20 days.
Court may change or terminate order to refrain
(9) When an undertaking is made under subsection (8), the court may change or terminate the order to refrain, without proof of a material change in circumstances, on motion by the Director, if,
(a) the 20-day period has expired and the proof of income has not been served and filed; or
(b) the proof of income has been served and filed and the court is satisfied that a different order would have been made if the proof of income had been available when the motion for the order to refrain was heard.
Time limits and changing order to refrain
(10) A court shall not make an order to refrain after the 30-day period referred to in the first notice, but an order to refrain may be changed, on motion by the payor or the Director, at any time before the motion to change support is determined if there is a material change in the payor’s circumstances.
Same
(11) A court may make an order to refrain only within the 30-day period referred to in the first notice and may make only one order to refrain in respect of any first notice.
Same
(12) For greater certainty, the 30-day period referred to in the first notice can not be extended for the purposes of subsections (10) and (11).
Same
(13) For greater certainty, if the 30-day period referred to in the first notice expires on a day when court offices are closed, the last day for making an order to refrain is the last day on which court offices are open before the 30-day period expires.
Order re arrears
(14) When a court that has determined a motion for an order to refrain also determines the related motion to change support, the court,
(a) shall state the amount of the arrears owing, after any change to the support order; and
(b) may make an order respecting payment of the arrears.
Same
(15) For the purpose of clause (14) (b), the court may make any order that may be made under clause 41 (10) (a), (b), (c), (e), (h) or (i) or subsection 41 (19) and, in the case of an order provided by clause 41 (10) (h) or (i), imprisonment does not discharge arrears under the support order.
When Director is a party
(16) The Director is not a party to a motion to change a support order referred to in subsection (1), but the Director and the payor are the only parties to a motion under subsection (1) for an order to refrain.
Filing with Director’s office
(17) The court shall file a copy of the order in the Director’s office promptly after the order is signed.
Form and effective date
(18) An order to refrain shall be in the form prescribed by the regulations and takes effect only when it is filed in the Director’s office.
Duration of order
(19) An order to refrain terminates on the earliest of,
(a) the day the order to refrain is terminated under subsection (9);
(b) the day the motion to change or the appeal is determined;
(c) the day the support order is withdrawn from the Director’s office; and
(d) the day that is six months after the order to refrain is made.
Exception
(20) Despite subsection (19), an order to refrain made before the making of a motion to change the support order is automatically terminated if the payor does not, within 20 days after the date of the order to refrain, obtain a court date for the motion to change the support order.
Extension of order
(21) The court that made an order to refrain may, on a motion made by the payor with notice to the Director, extend the order for one further period of,
(a) three months, unless clause (b) applies; or
(b) six months, if the motion to change is being dealt with under section 44 of the Family Law Act, sections 18 and 19 of the Divorce Act (Canada) or the Interjurisdictional Support Orders Act, 2002.
Time for extending order
(22) An extending order under subsection (21) shall not be made after the order to refrain has terminated.
Same
(23) For greater certainty, if the order to refrain terminates on a day when court offices are closed, the last day for making an extending order is the last day on which court offices are open before the order terminates.
Application of order
(24) An order to refrain is applicable only to the notice in respect of which the motion for an order to refrain was made under subsection (1).
19. (1) The English version of clause 36 (1) (c) of the Act is amended by striking out “varied support order” and substituting “changed support order”.
(2) Section 36 of the Act is amended,
(a) by striking out “second notice” wherever it appears and substituting in each case “final notice”; and
(b) by striking out “clause 35 (5) (b)” wherever it appears and substituting in each case “clause 35 (14) (b)”.
20. Subsection 37 (2) of the Act is amended by striking out “second notice” wherever it appears and substituting in each case “final notice”.
21. (1) Clauses 38 (1) (c) and (d) of the Act are repealed and the following substituted:
(c) the payor is complying with the terms of an order to refrain that has not expired;
(d) the support order has been changed and the payor is complying with the terms of the changed support order, including the terms of any order under clause 35 (14) (b) that relates to the support order;
(d.1) the payor makes an arrangement satisfactory to the Director for complying with the support order and for paying the arrears owing under the support order; or
(2) Subsection 38 (2) of the Act is amended,
(a) by striking out “clause 35 (5) (b)” and substituting “clause 35 (14) (b)”; and
(b) by striking out “last notice” and substituting “most recent notice”.
(3) Subsection 38 (3) of the Act is repealed and the following substituted:
More than one order in default
(3) If the payor is in default on one or more other support orders, the Director shall not direct the Registrar of Motor Vehicles to reinstate the driver’s licence unless,
(a) all arrears under all the support orders are paid;
(b) an arrangement or arrangements have been made, on terms satisfactory to the Director, to pay all arrears under all the support orders, and the payor is in compliance with the arrangement or arrangements; or
(c) all arrears under all the support orders are the subject of a court order or orders for payment and the payor is in compliance with the court order or orders.
(4) The French version of subsection 38 (4) of the Act is amended by striking out “déraisonnable” and substituting “inadmissible”.
22. The Act is amended by adding the following Part:
Part V.1
Suspension of Licences under fish and wildlife conservation Act, 1997
Definition, Part V.1
39.1 In this Part,
“licences”, when used with respect to a payor, means any hunting and sport fishing licences that,
(a) have been issued to the payor under the Fish and Wildlife Conservation Act, 1997, and
(b) belong to a class that is prescribed by the regulations.
Suspension
Notice
39.2 (1) When a support order that is filed in the Director’s office is in default, the Director may serve a notice on the payor, informing the payor that his or her licences may be suspended unless, within 30 days after the day the notice is served,
(a) the payor makes an arrangement satisfactory to the Director for complying with the support order and for paying the arrears owing under the support order; or
(b) the payor pays all arrears owing under the support order.
Request
(2) The Director may request that the Minister of Natural Resources suspend a payor’s licences if, within the 30-day period referred to in the notice, the payor does not,
(a) make an arrangement satisfactory to the Director for complying with the support order; or
(b) pay all arrears owing under the support order.
Form
(3) A request under this section shall be in a form approved by the Director and the Minister of Natural Resources.
Reinstatement
Request
39.3 (1) The Director shall request that the Minister of Natural Resources reinstate a payor’s licences that were suspended as a result of a request under section 39.2 if,
(a) the payor pays all the arrears owing under the support order;
(b) the payor is complying with the terms of the arrangement made with the Director in response to the notice;
(c) the support order has been changed and the payor is complying with the terms of the changed support order;
(d) the payor makes an arrangement satisfactory to the Director for complying with the support order and for paying the arrears owing under the support order; or
(e) the support order is withdrawn under section 16.
Notice revived if payor breaches arrangement or order
(2) If the Director requests that the Minister of Natural Resources reinstate a payor’s licences under clause (1) (b), (c) or (d) and the payor subsequently defaults within 24 months from the date of reinstatement or if the payor subsequently defaults within 24 months after the payor entered into an arrangement under clause 39.2 (1) (a), the Director may again request that the Minister of Natural Resources suspend the payor’s licences in accordance with the notice served under section 39.2.
More than one order in default
(3) If the payor is in default on one or more other support orders, the Director shall not request that the Minister of Natural Resources reinstate the payor’s licences unless,
(a) all arrears under all the support orders are paid;
(b) an arrangement or arrangements have been made, on terms satisfactory to the Director, to pay all arrears under all the support orders, and the payor is in compliance with the arrangement or arrangements; or
(c) all arrears under all the support orders are the subject of a court order or orders for payment and the payor is in compliance with the court order or orders.
Discretion to request reinstatement
(4) The Director may request that the Minister of Natural Resources reinstate a payor’s licences that were suspended as a result of a request under section 39.2 if, in the opinion of the Director, it would be unconscionable not to do so.
Form
(5) A request under this section shall be in a form approved by the Director and the Minister of Natural Resources.
Anti-avoidance
39.4 An agreement by the parties to a support order to avoid or prevent its enforcement under this Part is of no effect.
23. Subsection 40 (4) of the Act is amended by striking out “Ontario Court (Provincial Division)” and substituting “Ontario Court of Justice”.
24. Section 41 of the Act is repealed and the following substituted:
Default hearing
41. (1) When a support order that is filed in the Director’s office is in default, the Director may prepare a statement of the arrears and, by notice served on the payor together with the statement of arrears, may require the payor to deliver to the Director a financial statement and such proof of income as may be required by the regulations and to appear before the court to explain the default.
Same
(2) When a support order that is not filed in the Director’s office is in default, the recipient may file a request with the court, together with a statement of arrears, and, on such filing, the clerk of the court shall, by notice served on the payor together with the statement of arrears, require the payor to file a financial statement and appear before the court to explain the default.
Persons financially connected to payor
(3) The Director or the recipient may, at any time during a default hearing under subsection (1) or (2), request that the court make an order under subsection (4) or (5) or both.
Financial statement
(4) The court may, by order, require a person to file a financial statement and any other relevant documents with the court if the court is satisfied that the person is financially connected to the payor.
Adding party
(5) The court may, by order, add a person as a party to the hearing if the court,
(a) has made or could make an order under subsection (4); and
(b) is satisfied on considering all the circumstances, including the purpose and effect of the dealings between the person and the payor and their benefit or expected benefit to the payor, that there is some evidence that the person has sheltered assets or income of the payor such that enforcement of the support order against the payor may be frustrated.
Form of statements
(6) A financial statement and statement of arrears required by subsection (2) shall be in the form prescribed by the rules of the court and a financial statement required by subsection (1) or (4) shall be in the form prescribed by the regulations.
Arrest of payor
(7) If the payor fails to file the financial statement or to appear as the notice under subsection (1) or (2) requires, the court may issue a warrant for the payor’s arrest for the purpose of bringing him or her before the court.
Bail
(8) Section 150 (interim release by justice of the peace) of the Provincial Offences Act applies with necessary modifications to an arrest under the warrant.
Presumptions at hearing
(9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director’s office.
Powers of court
(10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor,
(a) pay all or part of the arrears by such periodic payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;
(b) discharge the arrears in full by a specified date;
(c) comply with the order to the extent of the payor’s ability to pay;
(d) make a motion to change the support order;
(e) provide security in such form as the court directs for the arrears and subsequent payment;
(f) report periodically to the court, the Director or a person specified in the order;
(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;
(h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and
(i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner.
No effect on accruing of arrears or other means of enforcement
(11) An order under subsection (10) does not affect the accruing of arrears, nor does it affect any other means of enforcing the support order.
Order against person financially connected to payor
(12) If the court is satisfied that a person who was made a party to the hearing under subsection (5) sheltered assets or income of the payor such that enforcement of the support order against the payor has been frustrated, the court may, having regard to all the circumstances, including the purpose and effect of the dealings and the benefit or expected benefit therefrom to the payor, make any order against the person that it may make against the payor under clauses (10) (a), (b), (c), (e), (f) and (g) and subsection (19), to the extent of the value of the sheltered assets or income and, for the purpose, in clause (10) (c), “payor’s” shall be read as “person’s”.
Same
(13) Subsections (7) and (8) apply with necessary modifications to a person with respect to whom an order is made under subsection (4) or (5).
Temporary orders
(14) The court may make a temporary order against the payor, or a person who was made a party to the hearing under subsection (5), that includes any order that may be made under subsection (10) or (12), as the case may be.
Power to change order
(15) The court that made an order under subsection (10) or (12) may change the order on motion if there is a material change in the payor’s or other person’s circumstances, as the case may be.
Enforcement of order
(16) The Director may enforce an order against a person made under subsection (12), (14) or (15) in the same manner as he or she may enforce an order against the payor.
Imprisonment does not discharge arrears
(17) Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order.
No early release
(18) Section 28 of the Ministry of Correctional Services Act does not apply to the imprisonment of a payor under clause (10) (h) or (i).
Realizing on security
(19) An order for security under clause (10) (e) or a subsequent order of the court may provide for the realization of the security by seizure, sale or other means, as the court directs.
Proof of service not necessary
(20) Proof of service of a support order or a changed support order is not necessary for the purpose of a default hearing.
Joinder of default and change hearings
(21) A default hearing under this section and a hearing on a motion to change the support order may be held together or separately.
Effect of change on default hearing
(22) If an order changing a support order is made while a default hearing under this section in relation to the support order is under way,
(a) the default hearing continues;
(b) it is not necessary to serve fresh documents under subsection (1) or (2); and
(c) the payment terms of the changed support order shall be incorporated into any subsequent order made under subsection (10).
Spouses compellable witnesses
(23) Spouses are competent and compellable witnesses against each other on a default hearing.
Records sealed
(24) A financial statement or other document filed under subsection (4) shall be sealed in the court file and shall not be disclosed except as permitted by the order or a subsequent order or as necessary to enforce an order made under subsection (12) or (14) against a person other than the payor.
Definition
(25) In this section,
“court” means the Ontario Court of Justice or the Family Court.
25. Subsection 42 (4) of the Act is repealed and the following substituted:
Notice
(4) An order under subsection (3) may be made only after notice to the Director, if the support order or a related support deduction order is filed with the Director’s office for enforcement.
26. Subsection 45 (3) of the Act is amended by striking out “Ontario Court (Provincial Division)” and substituting “Ontario Court of Justice”.
27. Section 47 of the Act is repealed and the following substituted:
Reporting default to consumer reporting agency
47. The Director may disclose the information set out in section 47.2 to a consumer reporting agency registered under the Consumer Reporting Act.
Reporting default to prescribed entity
47.1 (1) The Director may disclose the information set out in section 47.2 to a prescribed entity that is,
(a) a professional or occupational organization;
(b) the governing body of a self-governing or regulated profession; or
(c) an entity that is responsible for licensing or registering individuals for occupational purposes.
Presumption
(2) In the absence of evidence to the contrary, it shall be presumed that the amount disclosed with respect to arrears as described in clause 47.2 (d) is correct.
Information that may be disclosed
47.2 The information that may be disclosed under section 47 or 47.1 is,
(a) the name of a payor who is in default on a support order filed in the Director’s office;
(b) the date of the support order;
(c) the amount and frequency of the payor’s support obligation under the support order;
(d) the amount of the arrears owing under the support order at the time of the disclosure; and
(e) such other information as may be prescribed.
28. Section 48 of the Act is amended by striking out “Ontario Court (Provincial Division)” and substituting “Ontario Court of Justice”.
29. (1) Subsection 49 (1) of the Act is amended by striking out “Ontario Court (Provincial Division)” and substituting “Ontario Court of Justice”.
(2) Subsection 49 (3) of the Act is amended by striking out “41 (9)” and substituting “41 (10)”.
30. Subsection 50 (1) of the Act is amended by striking out “Ontario Court (Provincial Division)” in the portion after clause (c) and substituting “Ontario Court of Justice”.
31. Subsection 53 (1) of the Act is amended by striking out “Ontario Court (Provincial Division)” and substituting “Ontario Court of Justice”.
32. Section 54 of the Act is repealed and the following substituted:
Director’s access to information
Definitions
54. (1) In this section,
“enforcement-related information” means information that indicates any of the following about a payor:
1. employer or place of employment,
2. wages, salary or other income,
3. assets or liabilities,
4. home, work or mailing address, or location,
5. telephone number, fax number or e-mail address; (“renseignements liés à l’exécution”)
“recipient information” means information that indicates any of the following about a recipient:
1. home, work or mailing address, or location,
2. telephone number, fax number or e-mail address. (“renseignements sur le bénéficiaire”)
Power of Director
(2) The Director may, for the purpose of enforcing a support order or support deduction order filed in the Director’s office or for the purpose of assisting an office or person in another jurisdiction performing similar functions to those performed by the Director,
(a) demand enforcement-related information or recipient information from any person, public body or other entity from a record in the possession or control of the person, public body or other entity;
(b) subject to subsections (4) and (5), have access to all records that may contain enforcement-related information or recipient information and that are in the possession or control of any ministry, agency, board or commission of the Government of Ontario in order to search for and obtain the information from the records;
(c) subject to subsections (4) and (5), enter into an agreement with any person, public body or other entity, including the Government of Canada, a Crown corporation, the government of another province or territory or any agency, board or commission of such government, to permit the Director to have access to records in the possession or control of the person, public body or other entity that may contain enforcement-related information or recipient information, in order to search for and obtain the information from the records; and
(d) disclose information obtained under clause (a), (b) or (c) to a person performing similar functions to those of the Director in another jurisdiction.
10-day period for response
(3) When the Director demands information under clause (2) (a), the person, public body or other entity shall provide the information within 10 days after being served with the demand.
Access to part of record
(4) Where the record referred to in clause (2) (b) or (c) is part of a larger record, the Director,
(a) may have access to the part of the record that may contain enforcement-related information or recipient information; and
(b) may have incidental access to any other information contained in that part of the record, but may not use or disclose that other information.
Restriction on access to health information
(5) Despite subsection (4), if a record described in clause (2) (b) or (c) contains health information, as defined in the regulations, the Director shall not have access to the health information but shall have access only to the part of the record that may contain enforcement-related information or recipient information.
Information confidential
(6) Information obtained under subsection (2) shall not be disclosed except,
(a) to the extent necessary for the enforcement of the support order or support deduction order;
(b) as provided in clause (2) (d); or
(c) to a police officer who needs the information for a criminal investigation that is likely to assist the enforcement of the support order or support deduction order.
Court order for access to information
(7) A court may, on motion, make an order requiring any person, public body or other entity to provide the court or the person whom the court names with any enforcement-related information or recipient information that is shown on a record in the possession or control of the person, public body or other entity if it appears that,
(a) the Director has been refused information after making a demand under clause (2) (a);
(b) the Director has been refused access to a record under clause (2) (b); or
(c) a person needs an order under this subsection for the enforcement of a support order that is not filed in the Director’s office.
Court order re agreement
(8) A court may, on motion, make an order requiring any person, public body or other entity to enter into an agreement described in clause (2) (c) with the Director if it appears that the person, public body or other entity has unreasonably refused to enter into such an agreement.
Costs
(9) If the Director obtains an order under clause (7) (a) or (b) or under subsection (8), the court shall award the costs of the motion to the Director.
Information confidential
(10) Information obtained under an order under clause (7) (c) shall be sealed in the court file and shall not be disclosed except,
(a) as permitted by the order or a subsequent order;
(b) to the extent necessary for the enforcement of the support order or support deduction order;
(c) as provided in clause (2) (d); or
(d) to a police officer who needs the information for a criminal investigation that is likely to assist the enforcement of the support order or support deduction order.
Section governs
(11) This section applies despite any other Act or regulation and despite any common law rule of confidentiality.
33. Subsection 58 (2) of the Act is repealed and the following substituted:
Enforcement of orders to collect fees, etc.
(2) The Director may continue to enforce a support order or support deduction order to collect an amount described in subsection (3), even if,
(a) the support order or support deduction order to which the amount relates has been withdrawn from the Director’s office;
(b) there is no current support obligation, and there are no arrears, or any arrears are rescinded by a changed support order; or
(c) the support obligation has terminated and there are no arrears, or any arrears are rescinded by a changed support order.
Same
(3) Subsection (2) applies with respect to,
(a) fees;
(b) costs awarded to the Director by a court;
(c) any amount owed to the Director as reimbursement for money paid to a recipient; and
(d) any amount similar to the ones described in clauses (a), (b) and (c) that is owed to a support enforcement program in a reciprocating jurisdiction, if the support order to which the amount relates is registered in Ontario under the Interjurisdictional Support Orders Act, 2002.
34. (1) Subsection 61 (2) of the Act is repealed and the following substituted:
Same
(2) Any person, public body or other entity that is referred to in clause 54 (2) (a) shall disclose personal information about an identifiable individual to the Director for the purpose of section 54, within 10 days after being served with the Director’s demand.
(2) Section 61 of the Act is amended by adding the following subsection:
Law enforcement
(5) The Director shall be deemed to be engaged in law enforcement for the purposes of section 14 of the Freedom of Information and Protection of Privacy Act when collecting information, under section 54 or otherwise, for the purpose of enforcing a support order or support deduction order under this Act.
35. The Act is amended by adding the following section:
Obtaining information about payor by means of Internet posting
Director’s discretion
61.1 (1) The Director may post a payor’s name and other prescribed information relating to the payor on a website on the Internet if,
(a) the payor is in default under a support order;
(b) the support order or a related support deduction order is filed in the Director’s office;
(c) the Director has been unsuccessful in locating the payor; and
(d) the prescribed conditions are satisfied.
Purpose of posting
(2) The sole purpose of posting information under subsection (1) is to assist the Director in locating the payor.
Confidentiality of information obtained as a result of posting
(3) Subsection 54 (6) applies, with necessary modifications, to any information obtained by the Director as a result of the posting.
36. (1) Section 63 of the Act is amended by adding the following clauses:
(e.1) defining “in compliance” for the purposes of subsection 16 (1.1);
(e.2) prescribing methods of electronic transmission for the purpose of subsection 22 (2.1);
(2) Section 63 of the Act is amended by adding the following clause:
(g.1) prescribing practices and procedures relating to the filing and withdrawal of alternative payment orders under section 28;
(3) Section 63 of the Act is amended by adding the following clause:
(h.1) prescribing classes of licences for the purposes of Part V.1;
(4) Clause 63 (i) of the Act is amended by striking out “sections 40 and 41” and substituting “sections 35, 40 and 41”.
(5) Clause 63 (j) of the Act is repealed and the following substituted:
(j) prescribing, for the purposes of clause 47.2 (e), other information that may be disclosed under section 47 or 47.1;
(6) Clause 63 (k) of the Act is repealed and the following substituted:
(k) prescribing,
(i) fees to be charged by the Director for administrative services, including preparing and photocopying documents on request, and
(ii) fees for any steps taken by the Director to enforce a support order in response to the persistent or wilful default by a payor;
(k.1) prescribing fees for the repeated filing of a support order or support deduction order, and specifying what constitutes repeated filing;
(7) Clause 63 (o) of the Act is repealed and the following substituted:
(o) defining “health information” for the purposes of subsection 54 (5);
(8) Section 63 of the Act is amended by adding the following clauses:
(p.1) governing the delivery of payments to recipients, including requiring recipients to provide the Director with the information and authorization required to enable the Director to make direct deposits into the recipients’ accounts with financial institutions;
(p.2) setting out recommended standard terms for support orders;
(9) Section 63 of the Act is amended by adding the following subsection:
Repeated filing
(2) A fee prescribed under clause (1) (k.1) may be charged against both the payor and the recipient, regardless of which one of them files the order.
37. Section 35 of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, is repealed and the following substituted:
Order to refrain
35. (1) A payor who receives a first notice and makes a motion to change the support order may also, on notice to the Director, make a motion for an order that the Director refrain from making a direction under subsection 37 (1), on the terms that the court considers just, which may include payment terms.
Interjurisdictional Support Orders Act, 2002
(2) For the purposes of this section, submitting a support variation application to the designated authority in Ontario under the Interjurisdictional Support Orders Act, 2002 has the same effect as making a motion to change a support order.
Effect on arrears
(3) Payment terms that are included in an order to refrain do not affect the accruing of arrears, nor do they affect any other means of enforcing the support order.
Exceptions
(4) Despite subsection (1), a motion for an order to refrain may be made,
(a) before making a motion to change the support order, on the undertaking of the payor or the payor’s lawyer to obtain, within 20 days after the date of the order to refrain, a court date for the motion to change the support order; or
(b) without making a motion to change the support order, if the payor has started an appeal of the support order and the appeal has not been determined.
Court with jurisdiction to change support order
(5) A motion for an order to refrain shall be made in the court that has jurisdiction to change the support order.
Same
(6) The court that has jurisdiction to change a support order is,
(a) in the case of a support order that was made in Ontario,
(i) the court that made the support order, unless subclause (ii) applies,
(ii) if the support order is a provision in a domestic contract or paternity agreement, the Ontario Court of Justice or the Family Court; and
(b) in the case of a support order that was made outside Ontario,
(i) if the support order was made under the Divorce Act (Canada), the Superior Court of Justice or the Family Court,
(ii) if the support order is registered under the Interjurisdictional Support Orders Act, 2002, the court in Ontario that has jurisdiction under that Act to vary the support order.
Financial statement and proof of income
(7) A payor who makes a motion for an order to refrain shall serve and file,
(a) a financial statement, in the form prescribed by the regulations or in the form prescribed by the rules of court; and
(b) such proof of income as may be prescribed by the regulations.
Exception, undertaking
(8) Despite clause (7) (b), if the payor is unable to serve and file the proof of income before the motion is heard, the court may make the order to refrain subject to the undertaking of the payor or the payor’s lawyer to serve and file the proof of income within 20 days.
Court may change or terminate order to refrain
(9) When an undertaking is made under subsection (8), the court may change or terminate the order to refrain, without proof of a material change in circumstances, on motion by the Director, if,
(a) the 20-day period has expired and the proof of income has not been served and filed; or
(b) the proof of income has been served and filed and the court is satisfied that a different order would have been made if the proof of income had been available when the motion for the order to refrain was heard.
Time limits and changing order to refrain
(10) A court shall not make an order to refrain after the 30-day period referred to in the first notice, but an order to refrain may be changed, on motion by the payor or the Director, at any time before the motion to change support is determined if there is a material change in the payor’s circumstances.
Same
(11) A court may make an order to refrain only within the 30-day period referred to in the first notice and may make only one order to refrain in respect of any first notice.
Same
(12) For greater certainty, the 30-day period referred to in the first notice can not be extended for the purposes of subsections (10) and (11).
Same
(13) For greater certainty, if the 30-day period referred to in the first notice expires on a day when court offices are closed, the last day for making an order to refrain is the last day on which court offices are open before the 30-day period expires.
Order re arrears
(14) When a court that has determined a motion for an order to refrain also determines the related motion to change support, the court,
(a) shall state the amount of the arrears owing, after any change to the support order; and
(b) may make an order respecting payment of the arrears.
Same
(15) For the purpose of clause (14) (b), the court may make any order that may be made under clause 41 (10) (a), (b), (c), (e), (h) or (i) or subsection 41 (19) and, in the case of an order provided by clause 41 (10) (h) or (i), imprisonment does not discharge arrears under the support order.
When Director is a party
(16) The Director is not a party to a motion to change a support order referred to in subsection (1), but the Director and the payor are the only parties to a motion under subsection (1) for an order to refrain.
Filing with Director’s office
(17) The court shall file a copy of the order in the Director’s office promptly after the order is signed.
Form and effective date
(18) An order to refrain shall be in the form prescribed by the regulations and takes effect only when it is filed in the Director’s office.
Duration of order
(19) An order to refrain terminates on the earliest of,
(a) the day the order to refrain is terminated under subsection (9);
(b) the day the motion to change or the appeal is determined;
(c) the day the support order is withdrawn from the Director’s office; and
(d) the day that is six months after the order to refrain is made.
Exception
(20) Despite subsection (19), an order to refrain made before the making of a motion to change the support order is automatically terminated if the payor does not, within 20 days after the date of the order to refrain, obtain a court date for the motion to change the support order.
Extension of order
(21) The court that made an order to refrain may, on a motion made by the payor with notice to the Director, extend the order for one further period of,
(a) three months, unless clause (b) applies; or
(b) six months, if the motion to change is being dealt with under section 44 of the Family Law Act, sections 18 and 19 of the Divorce Act (Canada) or the Interjurisdictional Support Orders Act, 2002.
Time for extending order
(22) An extending order under subsection (21) shall not be made after the order to refrain has terminated.
Same
(23) For greater certainty, if the order to refrain terminates on a day when court offices are closed, the last day for making an extending order is the last day on which court offices are open before the order terminates.
Application of order
(24) An order to refrain is applicable only to the notice in respect of which the motion for an order to refrain was made under subsection (1).
38. (1) The English version of clause 36 (1) (c) of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, is amended by striking out “varied support order” and substituting “changed support order”.
(2) Section 36 of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, is amended,
(a) by striking out “second notice” wherever it appears and substituting in each case “final notice”; and
(b) by striking out “clause 35 (5) (b)” wherever it appears and substituting in each case “clause 35 (14) (b)”.
39. Subsection 37 (2) of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, is amended by striking out “second notice” wherever it appears and substituting in each case “final notice”.
40. (1) Clauses 38 (1) (c) and (d) of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, are repealed and the following substituted:
(c) the payor is complying with the terms of an order to refrain that has not expired;
(d) the support order has been changed and the payor is complying with the terms of the changed support order, including the terms of any order under clause 35 (14) (b) that relates to the support order;
(d.1) the payor makes an arrangement satisfactory to the Director for complying with the support order and for paying the arrears owing under the support order;
(2) Subsection 38 (2) of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, is amended,
(a) by striking out “clause 35 (5) (b)” and substituting “clause 35 (14) (b)”; and
(b) by striking out “last notice” and substituting “most recent notice”.
(3) Subsection 38 (3) of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, is repealed and the following substituted:
More than one order in default
(3) If the payor is in default on one or more other support orders, the Director shall not direct the Registrar of Motor Vehicles to reinstate a driver’s licence or permit or to validate a permit or issue a new permit unless,
(a) all arrears under all the support orders are paid;
(b) an arrangement or arrangements have been made, on terms satisfactory to the Director, to pay all arrears under all the support orders, and the payor is in compliance with the arrangement or arrangements; or
(c) all arrears under all the support orders are the subject of a court order or orders for payment and the payor is in compliance with the court order or orders.
(4) The French version of subsection 38 (4) of the Act, as set out in the Statutes of Ontario, 1996, chapter 31, section 64, is amended by striking out “déraisonnable” and substituting “inadmissible”.
Amendments to Fish and Wildlife Conservation Act, 1997
41. The Fish and Wildlife Conservation Act, 1997 is amended by adding the following section:
Requests under Family Responsibility and Support Arrears Enforcement Act, 1996
Definition
78.1 (1) In this section,
“licences” has the same meaning as in section 39.1 of the Family Responsibility and Support Arrears Enforcement Act, 1996.
Suspension
(2) On receiving a request to suspend a person’s licences under section 39.2 of the Family Responsibility and Support Arrears Enforcement Act, 1996, the Minister shall,
(a) suspend any licences that were issued to the person and have not already been cancelled under this Part; and
(b) refuse to issue any new licences to the person until the Director of the Family Responsibility Office makes a request to reinstate the person’s licences.
Reinstatement
(3) On receiving a request to reinstate a person’s licences under section 39.3 of the Family Responsibility and Support Arrears Enforcement Act, 1996, the Minister shall,
(a) reinstate any licences that were issued to the person, were suspended under clause (2) (a) and have not been cancelled under this Part; and
(b) issue any new licences that the person requests and is otherwise entitled to have issued.
Personal information
(4) The Minister shall, for purposes related to subsections (2) and (3), collect, use and disclose personal information about an identifiable individual disclosed in a request under section 39.2 or 39.3 of the Family Responsibility and Support Arrears Enforcement Act, 1996.
No compensation
(5) The person to whom licences were issued has no right to compensation with respect to their suspension under this section.
Commencement
42. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.
Same
(2) Sections 2, 3, 12, 22, 27 and 35, subsections 36 (3) and (5) and sections 37 to 41 come into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
43. The short title of this Act is the Family Responsibility and Support Arrears Enforcement Amendment Act, 2005.