Family Statute Law Amendment Act, 2009, S.O. 2009, c. 11 - Bill 133

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 133 and does not form part of the law. Bill 133 has been enacted as Chapter 11 of the Statutes of Ontario, 2009.

The Bill makes amendments in respect of various family law matters.

Change of Name Act

The Act is consequentially amended to account for amendments made by the Bill to the Children’s Law Reform Act, permitting a court to change a child’s surname where a declaration of maternity or paternity is made. Specifically, section 5 of the Change of Name Act is amended to add a requirement that, where the court has made such an order changing a child’s surname, an application under the Act to further change the child’s surname requires the consent of the person declared by the court to be the mother or father of the child. As with the other consents required to be obtained by the Act in the circumstances, the requirement may be waived by a court on application.

The Bill also makes amendments to the French version of certain provisions in the Act in order to harmonize the English and French texts.

Child and Family Services Act

The Bill makes consequential amendments to section 57.1 of the Child and Family Services Act to update the provisions permitting the court to, while making a custody order, make a restraining order without requiring a separate application, and deeming the restraining order to be a restraining order made under the Children’s Law Reform Act.

Children’s Law Reform Act

The Children’s Law Reform Act is amended by adding section 6.1, which permits a court to change a child’s surname in accordance with the Vital Statistics Act where an order has been made under the Act declaring someone to be the mother or father of the child.

The Act is amended to add new requirements for certain applications for custody of or access to a child. Section 21 of the Act is amended to add a requirement to file, with any application for custody or access, an affidavit of the person making the application, in the form prescribed by the rules of court, containing the person’s proposed plan for the child’s care and upbringing, information respecting the person’s current or previous involvement in any family or criminal proceedings, and any other information known to the person that is relevant to the court’s decision in the application.

In addition, three new provisions are added to create new requirements in cases where a person who is not the parent of a child applies for custody of the child.

Firstly, the new section 21.1 provides that the person applying for custody must file with the court the results of a recent police records check. The section gives authority to the Lieutenant Governor in Council to prescribe by regulation the scope of the required police records check.

Secondly, under the new section 21.2, the person must send a request to one or more children’s aid societies or other bodies or persons prescribed by the regulations for a report as to whether there are any records respecting the person and, if there are records and the records indicate that one or more files relating to the person have been opened, the opening and closing dates of those files. A society or other body or person that receives such a request is required, in the specified time, to complete and provide the report to the court and to the requesting party. Twenty days after the court has received all of the reports that were requested, the clerk of the court provides a copy of each report to the other parties and to counsel, if any, representing the child, and files the report in the court file. A court may, on motion by the requesting party, extend the 20-day time period, or may order that all or part of a report be sealed in the court file and not provided to the other parties if it determines that some or all of the information contained in the report is not relevant to the application or if the requesting party withdraws the application. In addition to creating authority to specify societies or other bodies or persons to which a request must be made, regulation-making authority is given to the Lieutenant Governor in Council to prescribe the manner and scope of the search to be undertaken upon receipt of a request for a report, and to specify any classes of files that should not be included in the report.

Finally, under the new section 21.3, where a person who is not the parent of a child applies for custody of the child, the clerk of the court is required to provide to the court and to parties information in writing respecting any current or previous family proceedings involving the child or any person who is a party to the application and who is not a parent of the child. In addition, the court may require the clerk of the court to provide to it and to the parties information in writing respecting any current or previous criminal proceedings involving any person who is a party to the application who is not a parent of the child. Regulation-making authority is given to the Attorney General to prescribe the scope of the search to be made by the clerk of the court, as well as the scope, content and form of the written information to be provided. As well, the Attorney General may prescribe a process for removing information that is not relevant from the written information.

Information or documents obtained as a result of the new requirements that are added by the new sections 21.1 to 21.3 are admissible in evidence, if the court considers them to be relevant, and the evidence shall be considered by the court in making its decision respecting custody, subject to the limitation currently in the Act on the extent to which a person’s past conduct can be considered when making a custody or access order.

Subsection 28 (1) of the Act is amended to specify some of the orders that the court may make when making an order under Part III of the Act for custody of or access to a child.

Section 35 of the Act, dealing with the making of restraining orders, is re-enacted. The re-enacted section sets out the test for making a restraining order and specifies against whom an order may be made. In addition, the section specifies provisions that may form part of the restraining order.

The Bill adds section 70, which requires the court to consider, in every proceeding that includes an application under Part III of the Act, whether to make an order limiting access to the court file to specified persons, or to prohibit the publication or the making public of information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. The new section specifies factors that the court must consider in determining whether to make such an order. In addition to the court’s duty to consider whether to make such an order, any interested person may apply to the court for the order. The order may be varied or discharged.

Finally, the Bill repeals references throughout the Act to the local registrar of the court.

Courts of Justice Act

The Bill repeals provisions in the Courts of Justice Act that are consequential to the Domestic Violence Protection Act, 2000.

Domestic Violence Protection Act, 2000

The Domestic Violence Protection Act, 2000 is repealed.

Family Law Act

The Bill amends the definition of “net family property” in the Act to specify that debts and other liabilities to be excluded from the calculation of the value of property owned by a spouse on the valuation date include any contingent tax liabilities in respect of the property. The definition is also amended to exclude from the calculation of the value of property owned by a spouse on the date of marriage those debts that are directly related to the acquisition or significant improvement of a matrimonial home.

An amendment to the definition of “property” in subsection 4 (1) of the Family Law Act concerns the valuation of a spouse’s rights under a pension plan for the purposes of the calculation of net family property under Part I of the Act. It specifies that a spouse’s property includes the imputed value, for family law purposes, of his or her interest in a pension plan.

Subsection 4 (2) of the Act is amended to exclude from the calculation of net family property under Part I of the Act the value of a spouse’s interest in the Canada Pension Plan.

The Act is amended to include in the list of items set out in subsection 6 (6) that in the applicable circumstances are to be credited, less any related contingent tax liability, against an equalization payment that is owed to a surviving spouse, property or a portion of a property to which the surviving spouse becomes entitled by right of survivorship or otherwise on the death of the deceased spouse.

Under a new section 10.1 of the Act, the imputed value, for family law purposes, of a spouse’s interest in a pension plan is to be determined in accordance with the Pension Benefits Act. The section also restricts the court’s power to make orders requiring the division of the interest in a pension plan in connection with the equalization of the spouses’ net family property. An order may provide for the immediate transfer of a lump sum out of the pension plan but, with one exception, cannot provide for any other division of the spouse’s interest in the plan. The exception applies if the spouse has begun to receive a pension under the plan on or before the valuation date. In that case, an order may only provide for the division of the pension payments. Additional restrictions that apply to the division of the interest in the pension plan are also described.

The Bill adds sections 13.1, 25.1 and 47.1, which create authority in each of Parts I, II and III of the Act for a court, when making an order under one of those Parts, to also make an interim order limiting or prohibiting direct or indirect contact or communication between parties, if the court determines that such an order is necessary to ensure that an application under the relevant Part is dealt with justly.

The Bill adds section 39.1, which provides that child support amounts payable under a court order or a domestic contract that is filed with the court may be recalculated by a child support service to reflect updated income information. The Bill also adds regulation-making authority to the Act respecting the recalculation of child support amounts, including authority to establish the child support service and to govern recalculation procedures and decisions.

Section 46 of the Act, dealing with the making of restraining orders, is re-enacted. The re-enacted section sets out the test for making a restraining order and specifies against whom an order may be made. In addition, the section specifies provisions that may form part of the restraining order.

A new section 56.1 of the Act addresses domestic contracts that provide for the division of a party’s interest in a pension plan following the parties’ separation. A new section 59.4.1 of the Act correspondingly addresses family arbitration awards that include similar provisions. Restrictions are established that correspond to those set out in section 10.1 for court orders.

The Bill amends the Act to add authority permitting the Lieutenant Governor in Council to make regulations respecting the production of information, including income information, relating to child support obligations in domestic contracts or in written agreements that are not domestic contracts, and providing for enforcement procedures when that information is not provided. The Act already contains authority for such regulations to be made in respect of child support obligations in court orders.

Finally, the Bill makes amendments to the French version of certain provisions in the Act in order to harmonize the English and French texts.

Pension Benefits Act

New sections of the Pension Benefits Act provide for the valuation, for family law purposes, of the benefits and entitlements of members and former members of pension plans and for the division of their benefits and entitlements for certain family law purposes.

A new section 67.1 of the Act sets out definitions that apply throughout these new sections. Key definitions include “family law valuation date” and “spouse”.

A new section 67.2 of the Act governs the determination of the imputed value, for family law purposes, of the pension benefits, deferred pension or pension to which a member or former member of a pension plan or his or her spouse is entitled under the plan. The new section 67.2 also enables members and former members, and in specified circumstances their spouses, to apply to the administrator of the pension plan for a statement of the imputed value, for family law purposes, of the pension benefits, deferred pension or pension, as the case may be.

A new section 67.3 of the Act enables an eligible spouse to apply to the administrator of the pension plan for the transfer of a lump sum from the plan in accordance with a court order under Part I (Family Property) of the Family Law Act, a family arbitration award or a domestic contract. Certain restrictions are set out.

A new section 67.4 of the Act enables an eligible spouse to apply to the administrator of the pension plan for the division of a former member’s pension in accordance with a court order under Part I of the Family Law Act, a family arbitration award or a domestic contract. Certain restrictions are set out. The section also sets out provisions permitting an eligible spouse who is entitled to a joint and survivor pension to waive the entitlement after payment of the first instalment of the former member’s pension is due, and specifies the rules that apply if the eligible spouse is entitled to a joint and survivor pension in respect of the former member in addition to being entitled to payment of a share of the former member’s pension.

Under a new section 67.5 of the Act, certain court orders made under Part I of the Family Law Act, family arbitration awards and domestic contracts are not effective to the extent that they purport to divide the pension benefits, deferred pension or pension of a member or former member otherwise than as permitted by section 67.3 or 67.4. A new section 67.6 sets out transitional rules that continue to apply to certain orders, family arbitration awards and domestic contracts.

Complementary technical amendments are made to several other provisions of the Act.

Vital Statistics Act

The Vital Statistics Act is consequentially amended to account for amendments made by the Bill to the Children’s Law Reform Act, permitting a court to change a child’s surname where a declaration of maternity or paternity is made. Specifically, section 9 is amended to add a requirement that, where the court has made such an order changing a child’s surname, the Registrar General shall amend the particulars of the child’s surname shown on the child’s birth registration in accordance with the order. In addition, section 14 is amended to add a prohibition on further changing the child’s surname by way of an election under the Act.

Français

chapter 11

An Act to amend various Acts in relation to certain family law matters and to repeal the Domestic Violence Protection Act, 2000

Assented to May 14, 2009

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Change of Name Act

1. (1) The French version of subsection 3 (6) of the Change of Name Act is amended by striking out “forme prescrite” and substituting “formule prescrite”.

(2) The French version of subsection 3 (7) of the Act is amended by striking out “forme prescrite” and substituting “formule prescrite”.

2. (1) Section 5 of the Act is amended by adding the following subsection:

Same

(2.1) Where a person is declared under section 4, 5 or 6, as the case may be, of the Children’s Law Reform Act to be the mother or father of a child and obtains an order under section 6.1 of that Act changing the child’s surname, an application under subsection (1) by another person to change the child’s surname also requires the written consent of the person declared to be the child’s mother or father.

(2) Section 5 of the Act is amended by adding the following subsection:

Same

(4.1) If the consent that cannot be obtained or is refused is the consent required under subsection (2.1), the application under subsection (4) may be made to the Ontario Court of Justice, the Family Court or the Superior Court of Justice.

Child and Family Services Act

3. Subsections 57.1 (3) and (4) of the Child and Family Services Act are repealed and the following substituted:

Restraining order

(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children’s Law Reform Act.

Same

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children’s Law Reform Act, and shall be treated for all purposes as if it had been made under that section.

Children’s Law Reform Act

4. The Children’s Law Reform Act is amended by adding the following section:

Corresponding change of surname

6.1 (1) Any person declared under section 4, 5 or 6, as the case may be, to be the mother or father of a child may apply to the court for an order that the child’s surname be changed to any surname that the child could have been given at birth under subsection 10 (3), (4) or (5) of the Vital Statistics Act.

Same

(2) An application under subsection (1) to change a child’s surname may be made at the same time that an application for a declaration under section 4, 5 or 6 is made.

Best interests of the child

(3) An order under subsection (1) changing a child’s surname may only be made if it is in the best interests of the child.

5. Section 7 of the Act is amended by striking out “section 4 or 5” and substituting “section 4, 5 or 6.1”.

6. Section 21 of the Act is amended by adding the following subsection:

Affidavit

(2) An application under subsection (1) for custody of or access to a child shall be accompanied by an affidavit, in the form prescribed for the purpose by the rules of court, of the person applying for custody or access, containing,

(a) the person’s proposed plan for the child’s care and upbringing;

(b) information respecting the person’s current or previous involvement in any family proceedings, including proceedings under Part III of the Child and Family Services Act (child protection), or in any criminal proceedings; and

(c) any other information known to the person that is relevant to the factors to be considered by the court under subsections 24 (2), (3) and (4) in determining the best interests of the child.

7. The Act is amended by adding the following section:

Police records checks, non-parents

21.1 (1) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall file with the court the results of a recent police records check respecting the person in accordance with the rules of court.

Admissibility

(2) The results obtained by the court under subsection (1) and any information, statement or document derived from the information contained in the results are admissible in evidence in the application, if the court considers it to be relevant.

Use of evidence

(3) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection (2) shall be considered in determining the best interests of the child under section 24.

Regulations

(4) The Lieutenant Governor in Council may make regulations defining “police records check” for the purposes of subsection (1).

8. The Act is amended by adding the following section:

CAS records search, non-parents

Definition

21.2 (1) In this section,

“society” means an approved agency designated as a children’s aid society under the Child and Family Services Act.

Request for report

(2) Every person who applies under section 21 for custody of a child and who is not a parent of the child shall submit a request, in the form provided by the Ministry of the Attorney General, to every society or other body or person prescribed by the regulations, for a report as to,

(a) whether a society has records relating to the person applying for custody; and

(b) if there are records and the records indicate that one or more files relating to the person have been opened, the date on which each file was opened and, if the file was closed, the date on which the file was closed.

Request to be filed

(3) A copy of each request made under subsection (2) shall be filed with the court.

Report required

(4) Within 30 days of receiving a request under subsection (2), a society or other body or person shall provide the court in which the application was filed with a report, in the form provided by the Ministry of the Attorney General, containing the information required under that subsection, and shall provide a copy of the report to the requesting party.

Duty of clerk

(5) Subject to subsection (6), if the report indicates that there are records relating to the requesting party, the clerk of the court shall, 20 days after all of the reports that were requested by the party have been received by the court,

(a) give a copy of the report to every other party and to counsel, if any, representing the child; and

(b) file the report in the court file.

Exception

(6) The court may, on motion by the requesting party, order,

(a) that the time period referred to in subsection (5) be lengthened; or

(b) that all or part of the report be sealed in the court file and not disclosed if,

(i) the court determines that some or all of the information contained in the report is not relevant to the application, or

(ii) the party withdraws the application.

Admissibility

(7) A report that is filed under subsection (5) and any information, statement or document derived from the information contained in the report is admissible in evidence in the application, if the court considers it to be relevant.

Use of evidence

(8) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection (7) shall be considered in determining the best interests of the child under section 24.

Interpretation

(9) Nothing done under this section constitutes publication of information or making information public for the purposes of subsection 45 (8) of the Child and Family Services Act or an order under clause 70 (1) (b).

Regulations

(10) The Lieutenant Governor in Council may make regulations for the purposes of subsection (2),

(a) specifying one or more societies or other bodies or persons to whom a request must be submitted;

(b) governing the manner and scope of the search required to be undertaken in response to a request;

9. The Act is amended by adding the following section:

Other proceedings

Application by non-parent

21.3 (1) Where an application for custody of a child is made by a person who is not a parent of the child, the clerk of the court shall provide to the court and to the parties information in writing respecting any current or previous family proceedings involving the child or any person who is a party to the application and who is not a parent of the child.

Same

(2) Where an application for custody of a child is made by a person who is not a parent of the child, the court may require the clerk of the court to provide to the court and to the parties information in writing respecting any current or previous criminal proceedings involving any person who is a party to the application and who is not a parent of the child.

Same

(3) Written information provided under subsection (1) or (2) shall also be provided to counsel, if any, representing the child who is the subject of the application.

Admissibility

(4) Written information that is provided to the court under subsection (1) or (2) and any information, statement or document derived from that information is admissible in evidence in the application, if the court considers it to be relevant.

Use of evidence

(5) Subject to subsection 24 (3), evidence that is determined by the court to be admissible under subsection (4) shall be considered in determining the best interests of the child under section 24.

Interpretation

(6) Nothing done under this section constitutes publication of information or making information public for the purposes of subsection 45 (8) of the Child and Family Services Act or an order under clause 70 (1) (b).

Regulations

(7) The Attorney General may make regulations for the purposes of this section,

(a) defining “family proceeding” and “criminal proceeding”;

(b) prescribing the scope, content and form of the written information that shall or may be provided under this section;

(c) providing for a process for removing from the written information provided under subsection (1) or (2) information respecting a proceeding that does not involve the child who is the subject of the application or a person who is a party and is not a parent of the child, as the case may be.

10. Clause 24 (2) (e) of the Act is repealed and the following substituted:

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

11. (1) Subsection 26 (1) of the Act is amended by striking out “or local registrar”.

(2) Subsection 26 (2) of the Act is amended by striking out “or local registrar”.

12. Clause 28 (1) (c) of the Act is repealed and the following substituted:

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

13. (1) Subsection 30 (7) of the Act is amended by striking out “or local registrar”.

(2) Subsection 30 (8) of the Act is amended by striking out “or local registrar”.

14. (1) Subsection 31 (5) of the Act is amended by striking out “or local registrar”.

(2) Subsection 31 (6) of the Act is amended by striking out “or local registrar”.

15. Section 35 of the Act is repealed and the following substituted:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

Transition

(3) This section, as it read immediately before the day section 15 of the Family Statute Law Amendment Act, 2009 came into force, continues to apply to,

(a) any prosecution or other proceeding begun under this section before that day; and

(b) any order made under this section that was in force immediately before that day.

16. The French version of paragraph 4 of subsection 37 (3) of the Act is amended by striking out “à la personne” and substituting “au particulier” and by striking out “les documents de voyage” and substituting “tous autres documents de voyage”.

17. Section 58 of the Act is amended by striking out “or local registrar”.

18. The Act is amended by adding the following section:

Confidentiality

70. (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

(i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

(iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.

Considerations

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

Order on application

(3) Any interested person may make an application for an order under subsection (1).

Varying or discharging order

(4) The court may vary or discharge an order made under subsection (1).

Courts of Justice Act

19. Paragraph 1.1 of the Schedule to section 21.8 of the Courts of Justice Act is repealed.

20. Subsection 68 (5) of the Act is repealed.

Domestic Violence Protection Act, 2000

21. The Domestic Violence Protection Act, 2000 is repealed.

Family Law Act

22. (1) Clause (a) of the definition of “net family property” in subsection 4 (1) of the Family Law Act is repealed and the following substituted:

(a) the spouse’s debts and other liabilities, including, for greater certainty, any contingent tax liabilities in respect of the property, and

(2) Clause (b) of the definition of “net family property” in subsection 4 (1) of the Family Law Act is repealed and the following substituted:

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage; (“biens familiaux nets”)

(3) The French version of the definition of “property” in subsection 4 (1) of the Act is amended by striking out “acquis” in the portion before clause (a) and substituting “dévolu”.

(4) Clause (c) of the definition of “property” in subsection 4 (1) of the Act is repealed and the following substituted:

(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date; (“bien”)

(5) Subsection 4 (2) of the Act is amended by adding the following paragraph:

7. Unadjusted pensionable earnings under the Canada Pension Plan.

23. Subsections 6 (6) and (7) of the Act are repealed and the following substituted:

Amounts to be credited

(6) The rules in subsection (7) apply if a surviving spouse elects or has elected to receive an entitlement under section 5 and is,

(a) the beneficiary of a policy of life insurance, as defined in the Insurance Act, that was taken out on the life of the deceased spouse and owned by the deceased spouse or was taken out on the lives of a group of which he or she was a member;

(b) the beneficiary of a lump sum payment provided under a pension or similar plan on the death of the deceased spouse; or

(c) the recipient of property or a portion of property to which the surviving spouse becomes entitled by right of survivorship or otherwise on the death of the deceased spouse.

Same

(7) The following rules apply in the circumstances described in subsection (6):

1. The amount of every payment and the value of every property or portion of property described in that subsection, less any contingent tax liability in respect of the payment, property or portion of property, shall be credited against the surviving spouse’s entitlement under section 5.

2. If the total amount of the credit under paragraph 1 exceeds the entitlement under section 5, the deceased spouse’s personal representative may recover the excess amount from the surviving spouse.

3. Paragraphs 1 and 2 do not apply in respect of a payment, property or portion of property if,

i. the deceased spouse provided in a written designation, will or other written instrument, as the case may be, that the surviving spouse shall receive the payment, property or portion of property in addition to the entitlement under section 5, or

ii. in the case of property or a portion of property referred to in clause (6) (c), if the surviving spouse’s entitlement to the property or portion of property was established by or on behalf of a third person, either the deceased spouse or the third person provided in a will or other written instrument that the surviving spouse shall receive the property or portion of property in addition to the entitlement under section 5.

24. The French version of section 8 of the Act is amended by striking out “dans la forme” in the portion before clause (a) and substituting “selon la formule”.

25. The French version of subclause 9 (1) (d) (i) of the Act is amended by striking out “l’assignation” and substituting “la dévolution”.

26. The Act is amended by adding the following section:

Interest in a pension plan

Imputed value for family law purposes

10.1 (1) The imputed value, for family law purposes, of a spouse’s interest in a pension plan to which the Pension Benefits Act applies is determined in accordance with section 67.2 of that Act.

Same

(2) The imputed value, for family law purposes, of a spouse’s interest in any other pension plan is determined, where reasonably possible, in accordance with section 67.2 of the Pension Benefits Act with necessary modifications.

Order for immediate transfer of a lump sum

(3) An order made under section 9 or 10 may provide for the immediate transfer of a lump sum out of a pension plan but, except as permitted under subsection (5), not for any other division of a spouse’s interest in the plan.

Same

(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. The nature of the assets available to each spouse at the time of the hearing.

2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.

3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.

4. Any contingent tax liabilities in respect of the lump sum that would be transferred.

5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

Order for division of pension payments

(5) If payment of the first instalment of a spouse’s pension under a pension plan is due on or before the valuation date, an order made under section 9 or 10 may provide for the division of pension payments but not for any other division of the spouse’s interest in the plan.

Same

(6) Subsections 9 (2) and (4) do not apply with respect to an order made under section 9 or 10 that provides for the division of pension payments.

Restrictions re certain pension plans

(7) If the Pension Benefits Act applies to the pension plan, the restrictions under sections 67.3 and 67.4 of that Act apply with respect to the division of the spouse’s interest in the plan by an order under section 9 or 10.

Transition, valuation date

(8) This section applies whether the valuation date is before, on or after the date on which this section comes into force.

Transition, previous orders

(9) This section does not apply to an order made before the date on which this section comes into force that requires one spouse to pay to the other spouse the amount to which that spouse is entitled under section 5.

27. The Act is amended by adding the following section:

Order regarding conduct

13.1 In making any order under this Part, the court may also make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application under this Part is dealt with justly.

28. (1) The French version of subsection 20 (1) of the Act is amended by striking out “dans la forme prescrite” and substituting “selon la formule prescrite”.

(2) The French version of clause 20 (6) (a) of the Act is amended by striking out “dans la forme prescrite” and substituting “selon la formule prescrite”.

29. The Act is amended by adding the following section:

Order regarding conduct

25.1 In making any order under this Part, the court may also make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application under this Part is dealt with justly.

30. The French version of the definition of “spouse” in section 29 of the Act is amended by striking out “Sont également compris l’une ou l’autre” in the portion before clause (a) and substituting “Est également comprise l’une ou l’autre” and by striking out “depuis” in clause (a) and substituting “pendant”.

31. The French version of clause 34 (1) (c) of the Act is amended by striking out “l’assignation” and substituting “la dévolution”.

32. (1) The French version of subsection 35 (1) of the Act is amended by striking out “Il y joint” and substituting “Elle y joint”.

(2) Subsection 35 (2) of the Act is amended by striking out “and” at the end of clause (b), by adding “and” at the end of clause (c), and by adding the following clause:

(d) in the case of a provision for the support of a child, may be recalculated under section 39.1,

. . . . .

33. The Act is amended by adding the following section:

Recalculation of child support

39.1 (1) The amount payable for the support of a child under an order may be recalculated in accordance with this Act and the regulations made under this Act, by the child support service established by the regulations, in order to reflect updated income information.

Effect of recalculation

(2) Subject to any review or appeal process established by the regulations made under this Act, if the child support service recalculates an amount payable for the support of a child under an order, the recalculated amount is, 31 days after the date on which the parties to the order are notified of the recalculation in accordance with the regulations, deemed to be the amount payable under the order.

34. The French version of section 41 of the Act is amended by striking out “dans la forme” and substituting “selon la formule”.

35. Section 46 of the Act is repealed and the following substituted:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

Transition

(4) This section, as it read immediately before the day section 35 of the Family Statute Law Amendment Act, 2009 came into force, continues to apply to,

(a) any prosecution or other proceeding begun under this section before that day; and

(b) any order made under this section that was in force immediately before that day.

36. The Act is amended by adding the following section:

Order regarding conduct

47.1 In making any order under this Part, other than an order under section 46, the court may also make an interim order prohibiting, in whole or in part, a party from directly or indirectly contacting or communicating with another party, if the court determines that the order is necessary to ensure that an application under this Part is dealt with justly.

37. The Act is amended by adding the following section:

Provisions re pension plan

Family law valuation date

56.1 (1) In this section,

“family law valuation date” means, with respect to the parties to a domestic contract,

(a) the valuation date under Part I (Family Property) that applies in respect of the parties, or

(b) for parties to whom Part I does not apply, the date on which they separate and there is no reasonable prospect that they will resume cohabitation.

Immediate transfer of lump sum

(2) A domestic contract may provide for the immediate transfer of a lump sum out of a pension plan, but, except as permitted under subsection (3), not for any other division of a party’s interest in the plan.

Division of pension payments

(3) If payment of the first instalment of a party’s pension under a pension plan is due on or before the family law valuation date, the domestic contract may provide for the division of pension payments, but not for any other division of the party’s interest in the plan.

Restrictions re certain pension plans

(4) If the Pension Benefits Act applies to the pension plan, the restrictions under sections 67.3 and 67.4 of that Act apply with respect to the division of the party’s interest in the plan under a domestic contract.

Valuation

(5) Subsections 10.1 (1) and (2) apply, with necessary modifications, with respect to the valuation of a party’s interest in a pension plan.

Transition, family law valuation date

(6) This section applies whether the family law valuation date is before, on or after the date on which this section comes into force.

Transition, previous domestic contracts

(7) This section does not apply to a domestic contract that provided, before the date on which this section comes into force, for the division of a party’s interest in a pension plan.

38. The French version of subsection 59 (2) of the Act is amended by striking out “dans la forme prescrite” and substituting “selon la formule prescrite”.

39. The Act is amended by adding the following section:

Award re pension plan

Family law valuation date

59.4.1 (1) In this section,

“family law valuation date” means, with respect to the parties to an arbitration,

(a) the valuation date under Part I (Family Property) that applies in respect of the parties, or

(b) for parties to whom Part I does not apply, the date on which they separate and there is no reasonable prospect that they will resume cohabitation.

Immediate transfer of lump sum

(2) A family arbitration award may provide for the immediate transfer of a lump sum out of a pension plan, but, except as permitted under subsection (3), not for any other division of a party’s interest in the plan.

Division of pension payments

(3) If payment of the first instalment of a party’s pension under a pension plan is due on or before the family law valuation date, the family arbitration award may provide for the division of pension payments, but not for any other division of the party’s interest in the plan.

Restrictions re certain pension plans

Valuation

(5) Subsections 10.1 (1) and (2) apply, with necessary modifications, with respect to the valuation of a party’s interest in a pension plan.

Transition, family law valuation date

(6) This section applies whether the family law valuation date is before, on or after the date on which this section comes into force.

Transition, previous family arbitration awards

(7) This section does not apply to a family arbitration award made before the date on which this section comes into force that requires one party to pay to the other party the amount to which that party is entitled under section 5 (equalization of net family properties).

40. (1) Section 69 of the Act is amended by adding the following subsection:

Same

(4) The Lieutenant Governor in Council may make regulations respecting the production of information, including income information, relating to child support obligations created by domestic contracts or by written agreements that are not domestic contracts, and providing for enforcement procedures when that information is not provided.

(2) Section 69 of the Act is amended by adding the following subsection:

Same

(5) The Lieutenant Governor in Council may make regulations governing the recalculation of the amount payable for the support of a child for the purposes of section 39.1, including regulations,

(a) establishing a child support service, governing its structure and prescribing its powers, duties and functions;

(b) governing procedures respecting the recalculation of child support amounts;

(d) providing for review or appeal processes respecting recalculated child support amounts;

(e) excluding specified classes of provisions for child support from recalculation.

Pension Benefits Act

41. (1) Subsection 1 (1) of the Pension Benefits Act is amended by adding the following definition:

“domestic contract” means a domestic contract as defined in Part IV of the Family Law Act; (“contrat familial”)

(2) Subsection 1 (1) of the Act is amended by adding the following definition:

“family arbitration award” means a family arbitration award made under the Arbitration Act, 1991; (“sentence d’arbitrage familial”)

(3) The definition of “spouse” in subsection 1 (1) of the Act is amended by striking out the portion before clause (a) and substituting the following:

“spouse” means, except where otherwise indicated in this Act, either of two persons who,

. . . . .

42. Subsection 29 (1) of the Act is amended by adding the following clause:

(c.1) a former spouse, within the meaning of sections 67.1 to 67.6, of a member or former member but only in such circumstances and for such purposes as may be prescribed;

43. Subsection 46 (1) of the Act is amended by striking out “domestic contract, as defined in Part IV of the Family Law Act” and substituting “domestic contract”.

44. Subsection 48 (13) of the Act is repealed and the following substituted:

Restriction on entitlement

(13) An entitlement to a benefit under this section is subject to any right to or interest in the benefit set out in an order made under Part I (Family Property) of the Family Law Act, a family arbitration award or a domestic contract.

45. Section 51 of the Act is repealed.

46. (1) Subsection 65 (2) of the Act is amended by adding “section 67.3 (transfer of a lump sum for certain family law purposes), 67.4 (division of a pension for certain family law purposes)” after “(pre-retirement death benefit)”.

(2) Subsection 65 (3) of the Act is repealed and the following substituted:

Exemptions

(3) Subsections (1) and (2) do not apply to prevent the assignment of an interest in money payable under a pension plan or money payable as a result of a purchase or transfer under section 42, 43, clause 48 (1) (b), section 67.3 or 67.4 or subsection 73 (2) by an order under the Family Law Act, by a family arbitration award or by a domestic contract.

47. (1) Subsection 66 (2) of the Act is amended by striking out “or 48” and substituting “48, 67.3 or 67.4”.

(2) Subsection 66 (3) of the Act is amended by striking out “or 48” and substituting “48, 67.3 or 67.4”.

(3) Subsection 66 (4) of the Act is amended by adding “section 67.3 or 67.4” after “clause 48 (1) (b)”.

48. Subsection 67 (1) of the Act is amended by striking out “or 48” and substituting “48, 67.3 or 67.4”.

49. The Act is amended by adding the following sections:

Family Law Matters

Interpretation

67.1 (1) In this section and in sections 67.2 to 67.6,

“family law valuation date” means, with respect to a member or former member of a pension plan and his or her spouse,

(a) the spouses’ valuation date under Part I (Family Property) of the Family Law Act, or

(b) for spouses to whom Part I of that Act does not apply, the date on which they separate and there is no reasonable prospect that they will resume cohabitation; (“date d’évaluation en droit de la famille”)

“spouse” has the same meaning as in section 29 of the Family Law Act. (“conjoint”)

Former spouse

(2) A reference in this section and in sections 67.2 to 67.6 to the spouse of a member or former member of a pension plan is, where circumstances require, a reference to him or her as the former spouse of the member or former member.

Valuation for family law purposes

Preliminary valuation, member or former member

67.2 (1) The preliminary value of a member’s pension benefits or a former member’s deferred pension or pension under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the member or former member and his or her spouse.

Same, spouse

(2) The preliminary value of the pension benefits or pension of the spouse of a member or former member under a pension plan, before apportionment for family law purposes, is determined by the administrator in accordance with the regulations and as of the family law valuation date of the spouse and the member or former member.

Adjustments

(3) If the pension benefits, pension or deferred pension are provided under a pension plan that provides defined benefits, the preliminary value includes such adjustments as may be prescribed for ancillary benefits and other entitlements.

Same

(4) There is no preliminary value attributable to ancillary benefits and other entitlements otherwise than by virtue of subsection (3).

Imputed value for family law purposes

(5) The imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be, is that portion of the preliminary value that is attributed by the administrator, in accordance with the regulations,

(a) to the period beginning with the date of the spouses’ marriage and ending on their family law valuation date, for the purposes of an order under Part I (Family Property) of the Family Law Act; or

(b) to the period beginning with the date determined in accordance with the regulations and ending on the spouses’ family law valuation date, for the purposes of a family arbitration award or domestic contract.

Application for statement of imputed value

(6) The following persons may apply to the administrator of the pension plan, in accordance with the regulations, for a statement of the imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be:

1. In the case of spouses to whom Part I of the Family Law Act applies, either spouse.

2. In the case of spouses to whom Part I of the Family Law Act does not apply, the member or former member.

Application fee

(7) The application must be accompanied by the applicable fee, if any, imposed by the administrator and the applicable fee must not exceed the prescribed amount.

Duty to determine imputed value

(8) Once the application is complete, the administrator shall determine the imputed value, for family law purposes, of each spouse’s pension benefits, deferred pension or pension, as the case may be.

Duty to provide statement

(9) The administrator shall give a statement containing the prescribed information to both spouses within the prescribed period.

Transition

(10) Neither spouse is eligible to apply under paragraph 1 of subsection (6) for the statement if an order made under Part I of the Family Law Act before the day on which this section comes into force requires one spouse to pay to the other spouse the amount to which the other spouse is entitled under section 5 (equalization of net family properties) of that Act.

Transfer of a lump sum for certain family law purposes

Eligibility

67.3 (1) A spouse of a member or former member of a pension plan is eligible to apply under this section for an immediate transfer of a lump sum from the plan if all of the following circumstances exist:

1. The spouses are separated and there is no reasonable prospect that they will resume cohabitation.

2. No payment of an instalment of the member’s or former member’s pension was due on or before the family law valuation date.

3. A statement of the imputed value, for family law purposes, of the member’s pension benefits or the former member’s deferred pension has been obtained from the administrator under section 67.2.

4. The transfer is provided for by an order made under Part I (Family Property) of the Family Law Act or is authorized under a family arbitration award or domestic contract.

5. In the order, family arbitration award or domestic contract, the amount to be transferred as a lump sum is expressed,

i. as a specified amount, or

ii. as a proportion of the imputed value, for family law purposes, of the member’s pension benefits or the former member’s deferred pension.

Application for transfer

(2) The eligible spouse may apply, in accordance with the regulations, to the administrator of the plan for any of the following:

1. Transfer of a lump sum from the plan to another pension plan registered under the pension benefits legislation in any jurisdiction in Canada or provided by a government in Canada. This option is available only if the administrator of the other plan agrees to accept the transfer.

2. Transfer of a lump sum from the plan to a prescribed retirement savings arrangement.

3. Transfer of a lump sum to another prescribed arrangement.

4. Implementation of the transfer of a lump sum by leaving it in the plan to the credit of the eligible spouse. This option is available in such circumstances as may be prescribed and only if the administrator agrees to it.

Restrictions on transfers

(3) The transfer is subject to the restrictions set out in this section and to such other restrictions as may be prescribed.

Duty to transfer

(4) Once the application is complete, the administrator shall make the transfer within the prescribed period.

Transfer to eligible spouse’s estate

(5) If the lump sum is not transferred under subsection (4) before the death of the eligible spouse, the lump sum is payable instead to the eligible spouse’s estate or as otherwise permitted by regulation.

Maximum percentage

(6) The order, family arbitration award or domestic contract is not effective to the extent that it purports to entitle the eligible spouse to the transfer of a lump sum that exceeds 50 per cent of the imputed value, for family law purposes, of the pension benefits or deferred pension, as updated for the purposes of this subsection if the regulations require the imputed value to be updated.

Partial transfer directly to spouse

(7) If the amount that would otherwise be transferred in accordance with the application is greater than the amount prescribed under the Income Tax Act (Canada) for such a transfer, the administrator shall pay the portion that exceeds the prescribed amount as a lump sum to the eligible spouse.

Duty to adjust pension benefits, etc.

(8) Upon making the transfer, the administrator shall, in accordance with the regulations, adjust the benefits and entitlements of the member or former member under the pension plan to take into account the transfer.

Discharge of administrator

(9) In the absence of actual notice to the contrary, the administrator is entitled to rely upon the information provided by the spouse in the application and is discharged upon making the transfer in accordance with the application and this section and making the adjustments required by subsection (8).

Effect of transfer

(10) Once the transfer is made in accordance with the application and this Act, the eligible spouse has no further claim against the pension plan in respect of the member or former member.

Orders for support

(11) This section does not affect any order for support enforceable in Ontario.

Priorities

(12) An entitlement to a transfer under this section prevails over any other entitlement under this Act to a payment from the pension plan in respect of the member or former member.

Same

(13) For the purposes of subsection (12), an entitlement to a transfer under this section arises on application under subsection (2) by an eligible spouse.

Division of a pension for certain family law purposes

Eligibility

67.4 (1) A spouse of a former member of a pension plan is eligible to apply under this section for the division of the former member’s pension if all of the following circumstances exist:

1. The spouses are separated and there is no reasonable prospect that they will resume cohabitation.

2. Payment of the first instalment of the former member’s pension was due on or before the family law valuation date.

3. A statement of the imputed value, for family law purposes, of the former member’s pension has been obtained from the administrator under section 67.2.

4. The division of the pension is provided for by an order made under Part I (Family Property) of the Family Law Act or is authorized under a family arbitration award or domestic contract.

5. In the order, family arbitration award or domestic contract, the amount of each pension instalment to be paid to the spouse is expressed,

i. as a specified amount, or

ii. as a proportion of the instalment otherwise payable to the former member.

Application for division and payment

(2) The eligible spouse may apply, in accordance with the regulations, to the administrator of the plan for division of the former member’s pension and for payment of the eligible spouse’s share to him or her.

Restrictions

(3) The division and payment of the pension is subject to the restrictions set out in this section and to such other restrictions as may be prescribed.

Duties of administrator

(4) Once the application is complete, the administrator shall revalue the former member’s pension in the prescribed manner and begin the payments to the eligible spouse within the prescribed period.

Maximum percentage

(5) The order, family arbitration award or domestic contract is not effective to the extent that it purports to entitle the eligible spouse to a share that exceeds 50 per cent of the imputed value, for family law purposes, of the pension, as updated for the purposes of this subsection if the regulations require the imputed value to be updated.

Discharge of administrator

(6) In the absence of actual notice to the contrary, the administrator is entitled to rely upon the information provided by the spouse in the application and is discharged on revaluing the former member’s pension and making the payments to the eligible spouse in accordance with the application and this section.

Orders for support

(7) This section does not affect any order for support enforceable in Ontario.

Waiver of joint and survivor pension

(8) Despite subsection 46 (2), the eligible spouse may waive his or her entitlement to a joint and survivor pension after payment of the first instalment of the former member’s pension is due and before the pension is divided in accordance with this section.

No cancellation

(9) A waiver authorized by subsection (8) cannot be cancelled.

Special case, combining payments

(10) The following rules apply if the eligible spouse is entitled to a joint and survivor pension in respect of the former member in addition to being entitled to payment of a share of the former member’s pension in accordance with this section:

1. The eligible spouse may make a written request, in the form approved by the Superintendent, to the administrator for payment of a single pension from the pension plan instead of payment of a share of the former member’s pension and payment of a joint and survivor pension.

2. If the pension plan so permits, the administrator may comply with the request.

3. When the eligible spouse begins to receive the single pension, he or she ceases to be entitled to payment of the share of the former member’s pension and to payment of the joint and survivor pension in respect of the former member.

Restriction on other ways of dividing pension benefits, etc.

67.5 (1) An order made under Part I (Family Property) of the Family Law Act, a family arbitration award or a domestic contract is not effective to the extent that it purports to require the administrator of a pension plan to divide the pension benefits, deferred pension or pension, as the case may be, of a member or former member of the plan otherwise than as provided under section 67.3 or 67.4.

Transition, valuation date

(2) This section applies whether the family law valuation date for the member or former member and his or her spouse is before, on or after the date on which this section comes into force.

Transition, previous orders, etc.

(3) This section does not apply to an order, family arbitration award or domestic contract to which section 67.6 applies.

Other transitional matters

67.6 (1) This section applies to an order under Part I (Family Property) of the Family Law Act, family arbitration award or domestic contract that requires one spouse to pay to the other spouse the amount to which that spouse is entitled under section 5 (equalization of net family properties) of that Act, if the order, award or contract was made before the date on which this section comes into force.

Amendments

(2) The application of this section to an order, family arbitration award or domestic contract described in subsection (1) is not affected by an amendment or variation made on or after the date on which this section comes into force to the order, award or contract, if,

(a) the order, award or contract provided, before that date, for the division of a party’s interest in a pension plan; and

(b) the amendment or variation is made in order to facilitate or effect the division of the party’s interest in the pension plan in accordance with the order, award or contract.

Timing of payment

(3) The order, family arbitration award or domestic contract is not effective to require payment of a pension benefit before the earlier of,

(a) the date on which payment of the pension benefit commences; or

(b) the normal retirement date of the relevant member or former member.

Maximum percentage

(4) The order, family arbitration award or domestic contract is not effective to cause the spouse to become entitled to more than 50 per cent of the pension benefits, calculated in the prescribed manner, accrued by the member or former member during the period when they were spouses.

Discharge of administrator

(5) If payment of a pension or a deferred pension is divided between spouses by the order, family arbitration award or domestic contract, the administrator is discharged on making payment in accordance with the order, award or contract.

Revaluation of joint and survivor pension

(6) If the order, family arbitration award or domestic contract affects a pension, the administrator of the pension plan shall revalue the pension in the prescribed manner.

Entitlement to options

(7) The spouse has the same entitlement, on termination of employment by the member or former member, to any option available in respect of the spouse’s interest in the pension benefits as the member or former member has in respect of his or her pension benefits.

50. Subsection 115 (1) of the Act is amended by adding the following clause:

(y) governing the fees that may be imposed by an administrator under section 67.2.

Vital Statistics Act

51. Section 9 of the Vital Statistics Act is amended by adding the following subsection:

Same

(8) On receiving a certified copy of an order under section 6.1 of the Children’s Law Reform Act respecting a child whose birth is registered in Ontario, the Registrar General shall amend the particulars of the child’s surname shown on the registration, in accordance with the order.

52. Section 14 of the Act is amended by adding the following subsection:

Prohibition

(1.1) Despite subsection (1), no election shall be made under clause (1) (b) or (c) to change a child’s surname if a court has made an order under section 6.1 of the Children’s Law Reform Act changing the child’s surname.

Commencement and Short Title

Commencement

53. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.

(2) Sections 2 to 10, 12, 15 and 18, subsection 22 (4), sections 26, 27 and 29, subsection 32 (2) and sections 33, 35 to 37 and 39 to 52 come into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

54. The short title of this Act is the Family Statute Law Amendment Act, 2009.

Français

Family Statute Law Amendment Act, 2009, S.O. 2009, c. 11 - Bill 133

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