1997 Legislative Session: 2nd Session, 36th Parliament
THIRD READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


Certified correct as passed Third Reading on the 21st day of July, 1997
Ian D. Izard, Law Clerk


HONOURABLE UJJAL DOSANJH
ATTORNEY GENERAL AND
MINISTER RESPONSIBLE
FOR MULTICULTURALISM,
HUMAN RIGHTS AND
IMMIGRATION

BILL 32 -- 1997
FAMILY MAINTENANCE ENFORCEMENT
AMENDMENT ACT, 1997

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 (1) of the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127, is amended

(a) by adding the following definition:

"annual default fee" means the fee prescribed under section 51 for purposes of section 14.4; ,

(b) by repealing paragraph (a) of the definition of "court" and substituting the following:

(a) in sections 3 (1) and (2), 9, 10, 12.1 (4), 13 to 24, 26 (1), (10), (12) and (13), 29.2 (2), 31, 32, 36 (2), 39, 40, 45 (c), 46, 47 (2) and (3), 49 (1) (b) and 51 (2) (c), the Supreme Court or the Provincial Court, ,

(c) in the definition of "maintenance" by adding the following paragraph:

(d.1) the cost of tests for paternity, , and

(d) by repealing the definition of "spouse" and substituting the following:

"spouse" means an individual who is married to or living in a marriage-like relationship with a debtor and this marriage or marriage-like relationship may be between persons of the same gender; .

2 Section 6 is amended

(a) in subsections (1) and (2) by striking out "at any time", and

(b) by adding the following subsection:

(2.1) A withdrawal under subsection (1) or (2) may be made if

(a) the director has recovered all amounts to which section 10 (5) refers respecting the creditor, or

(b) section 10 (5) does not apply respecting the creditor.

3 Section 10 is amended

(a) by repealing subsection (1) (a) and substituting the following:

(a) be sent to the director and be payable

(i) to the director, or

(ii) if specified by the director, to a creditor, or to a reciprocating state, or ,

(b) in subsection (4) by striking out "subsections (5) and (6)" and substituting "subsections (4.1), (5) and (6)", and

(c) by adding the following subsection:

(4.1) The director may reallocate the amount of payments received from a debtor amongst the creditors of the debtor if the director considers that it is reasonable and just to do so.

4 The following sections are added:

Payment conference

12.1 (1) On or after acting under section 12 (1), the director by service of notice in the prescribed form on the debtor may request that the debtor attend at the time and place specified in the notice to review the statement of arrears, the statement of finances and the prescribed documents referred to in section 12 and to arrange for payment of the arrears.

(2) With the consent of the director and the debtor, the time or place for the review under subsection (1) may be changed.

(3) With the consent of the director and the debtor, the review under subsection (1) may be conducted by telephone or other means of telecommunication.

(4) If the debtor refuses to participate in a review under this section or declines to discuss all or part of the information that is or should be set out in the statement of arrears, the statement of finances or the prescribed documents referred to in section 12, the director in any proceedings under this Part may report this lack of cooperation to the court and the court may take this lack of cooperation into account in making its order in those proceedings.

A corporation with only the debtor as shareholder

14.1 (1) In this section, "corporation" means a corporation as defined in section 1 of the Company Act for which the debtor

(a) is the sole shareholder, and

(b) has the sole beneficial interest in the shares of the corporation.

(2) A corporation becomes jointly and separately liable with the debtor for payments required under a maintenance order if

(a) the debtor defaults in a payment required under the maintenance order,

(b) the corporation has been served with a notice of attachment under this Part, or is a garnishee under section 18, respecting the amount owing by the debtor under the maintenance order, and

(c) the amount owing by the debtor under the maintenance order exceeds $3 000 after paragraph (b) applies.

(3) On becoming jointly and separately liable under subsection (2),

(a) a corporation continues to be liable as long as the debtor continues to be liable for payments required under the maintenance order,

(b) an enforcement proceeding that may be taken under this Part against the debtor may be taken against the corporation, and

(c) the amount of a payment required under a maintenance order that is paid by the corporation is a debt owed by the debtor to the corporation.

(4) Despite subsection (3), a corporation is not liable for payments under a maintenance order that come due on or after the director receives written notification from the corporation

(a) stating that the debtor has ceased to have a beneficial interest in any shares of the corporation and the date this took effect,

(b) giving the name and address of the person who acquired the beneficial interest in those shares, and

(c) specifying the nature and amount of the consideration, if known to the corporation, the debtor received or will receive for the transfer of the beneficial interest in the shares.

A corporation controlled by the debtor or by
the debtor and immediate family members

14.2 (1) In this section:

"control of the corporation" means the holding, other than by way of security only, by or for the benefit of a person or a group of persons not dealing with each other at arm's length, of shares in the corporation that, in an election of the directors of the corporation, carry, in total, sufficient voting rights, if those rights are exercised, to elect 50% or more of the directors or to otherwise effectively control the operations and direction of the corporation;

"corporation" means a corporation as defined in section 1 of the Company Act if the control of the corporation is by

(a) the debtor, or

(b) the debtor and the immediate family members of the debtor together;

"immediate family member" means a spouse, former spouse, child, sibling, step- sibling, half-sibling or parent of the debtor;

"parent" means a parent as defined in section 1 of the Family Relations Act.

(2) The director, if the maintenance order is filed with the director, or the creditor, if the maintenance order is not filed with the director, may apply to the court for an order that a corporation is jointly and separately liable with the debtor for payments required under the maintenance order if

(a) the debtor defaults in a payment required under the maintenance order,

(b) the corporation has been served with a notice of attachment under this Part, or is a garnishee under section 18, respecting the amount owing by the debtor under the maintenance order, and

(c) the amount owing by the debtor under the maintenance order exceeds $3 000 after paragraph (b) applies.

(3) On becoming jointly and separately liable under an order made under subsection (2),

(a) a corporation continues to be liable as long as the debtor continues to be liable for payments required under the maintenance order,

(b) an enforcement proceeding that may be taken under this Part against the debtor may be taken against the corporation, and

(c) the amount of a payment required under a maintenance order that is paid by the corporation is a debt owed by the debtor to the corporation.

(4) Despite subsection (3), a corporation is not liable for payments under a maintenance order that come due on or after the director receives written notification from the corporation

(a) stating that the debtor has ceased to have a beneficial interest in any shares of the corporation and the date this took effect,

(b) giving the name and address of the person who acquired the beneficial interest in those shares, and

(c) specifying the nature and amount of the consideration, if known to the corporation, the debtor received or will receive for the transfer of the beneficial interest in the shares.

Balanced approach to enforcement against a corporation

14.3 For the purposes of an enforcement proceeding referred to in section 14.1 or 14.2 against the corporation, the director and the court, as the case may be, must

(a) consider whether a significant risk to the continued solvency of the corporation arises or will arise from the enforcement proceedings, and

(b) if the conclusion under paragraph (a) is that a significant risk has arisen or will arise, proceed in a manner that will, in the opinion of the director or court, as the case may be, reduce the risk and allow enforcement under this Part to be effective.

Annual default fee

14.4 (1) A notice of the intention to impose an annual default fee may be given by the director to a debtor who is in default on a payment of maintenance under a maintenance order filed with the director.

(2) A notice is conclusively deemed to be given under subsection (1) to the debtor on the 14th day after the notice is deposited with Canada Post to be mailed to the debtor's last known address.

(3) A notice under subsection (1) must state that the annual default fee is imposed on the debtor for the calendar year if the debtor further defaults in the calendar year in payment on the dates and in the amounts specified under the maintenance order.

(4) If a further default as described in subsection (3) occurs after a notice is given under subsection (1), the debtor is liable to pay the government the annual default fee for the calendar year unless the director is satisfied that

(a) the notice under subsection (1) was issued in error, or

(b) the debtor was receiving income assistance under the BC Benefits (Income Assistance) Act, a youth allowance under the BC Benefits (Youth Works) Act or a disability allowance under the Disability Benefits Program Act at the time the further default occurred.

(5) If the director determines that a debtor is not liable to pay the annual default fee, any payment made by the debtor of all or part of the annual default fee must be remitted to the debtor.

(6) In a proceeding in which a court reduces or cancels the arrears under a maintenance order that is filed with the director, the court may order that

(a) if the arrears under the maintenance order are cancelled, the amount owing by the debtor at that time as annual default fees is cancelled,

(b) if the arrears under the maintenance order are reduced but not cancelled, the amount owing by the debtor at that time as annual default fees is reduced by the amount that is proportionate to the reduction in the arrears under the maintenance order, or

(c) if the court is satisfied that special circumstances warrant, the amount owing by the debtor at that time as annual default fees

(i) is not reduced or cancelled, or

(ii) is reduced or cancelled as the court considers appropriate.

(7) Subsections (5) and (6) apply despite the Financial Administration Act.

(8) If subsection (4) applies to a debtor and the relevant maintenance order is withdrawn from filing under section 6, the liability of the debtor to pay the annual default fee for the calendar year continues to apply.

(9) A certificate signed by the director stating the amount of a debtor's liability under subsection (4) on the date the certificate is signed may be filed with the court and, on the certificate being filed, payment of this amount may be enforced under this Part as if it were an order of the court.

5 Section 15 is amended

(a) in subsection (3) (a) and (b) by adding "or benefit" after "any money",

(b) in subsection (6) (a) by adding "or benefit" after "the money", and

(c) by adding the following subsection:

(9) In this section, "benefit" means a benefit as defined in the Pension Benefits Standards Act.

6 Section 16 is amended

(a) in subsection (1) (a) (i) by adding "or benefit" after "no money", and

(b) by adding the following subsection:

(10) In this section, "benefit" means a benefit as defined in the Pension Benefits Standards Act.

7 Section 21 (10) is amended by repealing paragraph (d) and substituting the following:

(d) next, to any interest under section 11.1;

(e) last, to any annual default fees.

8 Section 24 is amended

(a) in subsection (1) by adding "or is receiving or entitled to receive a benefit," after "from a person employing or engaging the services of the debtor,",

(b) in subsection (3) by adding "or pays a benefit," after "employees or engages the services of the debtor",

(c) in subsection (3) (a) by adding "or benefit" after "deduct from the money",

(d) in subsection (4) by adding "or pays a benefit" after "the services of the debtor" and by adding ", or to receive a benefit" after "salary or other remuneration", and

(e) by adding the following subsection:

(10) In this section, "benefit" means a benefit as defined in the Pension Benefits Standards Act.

9 Section 25 is amended

(a) in subsection (1) in the definition of "money" by striking out "or" at the end of paragraph (a) and by adding the following paragraph:

(a.1) a benefit as defined in the Pension Benefits Standards Act, or , and

(b) in subsection (2) (b) by adding "or any benefit as defined in the Pension Benefits Standards Act," after "wages, salary or other remuneration,".

10 Section 26 (1) is repealed and the following substituted:

(1) A maintenance order may be registered in a land title office in the same manner as a charge is registered and is deemed for the purposes of Part 5 of the Court Order Enforcement Act to be a judgment as defined in section 81 of that Act if an application is made under this section for the registration and the application is accompanied by

(a) a copy of the maintenance order certified by a proper officer of the court, or

(b) a copy of a copy described by paragraph (a) certified by the director to be a true copy, as described by paragraph (a), filed with the director.

11 The following section is added:

Registration in personal property security registry

26.1 (1) The Lieutenant Governor in Council may prescribe the circumstances in which, for the purpose of enforcing a maintenance order, a claim may be registered by the director under the Miscellaneous Registrations Act, 1992, against the personal property of a debtor.

(2) Registration of a claim under the Miscellaneous Registrations Act, 1992, in respect of a maintenance order in circumstances prescribed under subsection (1) creates, in favour of the director for payment as provided for under section 10, a lien on the personal property against which the claim is registered.

(3) The lien created under subsection (2) is for the total of

(a) the amount of any arrears of maintenance accrued before the claim is registered, and

(b) the amount of any arrears of maintenance that accrues while the claim is registered.

(4) The lien created under subsection (2) has priority, for the total amount determined under subsection (3), over any other claim that is registered and any security interest that is perfected after the lien is created, even though part of that amount is for arrears, interest and other sums that accrue after the other claim is registered or after the security interest is perfected.

(5) Despite subsection (4), the lien created under subsection (2) does not have priority over

(a) liens for wages due to workers by their employers, and

(b) liens under section 52 of the Workers Compensation Act.

(6) The lien created under subsection (2) continues

(a) until the claim is discharged in accordance with the Miscellaneous Registrations Act, 1992, or a regulation made under this Act, or

(b) until the arrears are paid,

whichever happens first.

(7) Registration of a claim in circumstances prescribed under subsection (1) is notice to any person of the claim and of the lien created under subsection (2).

(8) If the claim is registered against a manufactured home, the Registrar of Manufactured Homes must not, except with a consent given in accordance with subsection (9) or except in prescribed circumstances,

(a) issue a transport permit under section 25 of the Manufactured Home Act, or

(b) register a transfer, or an agreement for sale, of a manufactured home.

(9) For the purposes of subsection (8), consent must be in the prescribed form and may be given by the director.

(10) For the purposes of sections 6 and 7 of the Miscellaneous Registrations Act, 1992, and of any regulations made under section 9 (2) (c) of that Act, the director is considered to be the holder of a claim registered under that Act in respect of a maintenance order that is filed with the director.

12 The following sections are added:

Debtor's driver's licence

29.1 (1) If a maintenance order is filed with the director and the debtor is in default and the arrears under the maintenance order total $3 000 or more, the director may

(a) give the debtor 30 days' notice that action under this section will be taken, and

(b) prepare and forward to the Insurance Corporation of British Columbia, after the 30 days referred to in paragraph (a), a notice stating that the debtor is in default.

(2) The director may act under subsection (1) (b) without complying with subsection (1) (a) if

(a) subsection (6) applies, or

(b) the director considers that it is impractical to contact the debtor.

(3) On receipt of a notice under subsection (1), the Insurance Corporation of British Columbia must not issue or renew a driver's licence of the debtor until the Insurance Corporation of British Columbia is advised by the director that

(a) the maintenance order has been withdrawn under section 6,

(b) the maintenance order is no longer in arrears, or

(c) direction is given under section 29.2 to disregard the notice under subsection (1).

(4) The director may, as a condition for acting under subsection (3) (b), require the debtor to give the director a deposit in a prescribed amount as security for future payments under the maintenance order in addition to paying the arrears.

(5) The director may hold a deposit received under subsection (4) until the debtor has not been in arrears under the maintenance order for at least 9 consecutive months since the deposit was given, in which case the deposit may be applied to future maintenance payments, or returned to the debtor, as the director considers appropriate.

(6) If the debtor gives a deposit under subsection (4) and subsequently falls into arrears for more than 10 consecutive days under the maintenance order filed with the director, the director may

(a) prepare and forward to the Insurance Corporation of British Columbia a further notice under subsection (1) without further notice to the debtor, and

(b) apply the deposit to the payment of arrears under the maintenance order.

(7) Action by the Insurance Corporation of British Columbia under subsection (3) or the giving of a deposit under subsection (4) is not a bar to the bringing of other proceedings under this Part to enforce payment under the maintenance order.

Withdrawing the director's notice

29.2 (1) The director must direct the Insurance Corporation of British Columbia to disregard a notice given under section 29.1 if the debtor satisfies the director that

(a) the notice is based on a material error,

(b) the lack of a driver's licence will significantly reduce the debtor's ability to pay under the maintenance order and the debtor has entered into an arrangement that is satisfactory to the director to report the debtor's financial circumstances from time to time, or

(c) the debtor has entered into a payment arrangement that is satisfactory to the director.

(2) If the director refuses to act under subsection (1) (a), the court, on application by the debtor, may summarily determine whether the refusal was unreasonable and, if the refusal is found to be unreasonable, may order the director to act under subsection (1).

13 Section 32 is amended by repealing paragraph (d) and substituting the following:

(d) next, to any interest under section 11.1;

(e) last, to any annual default fees.

14 Section 33 (2) is amended

(a) by striking out "13 (4)" and substituting "12.1 (4), 13 (4)", and

(b) by striking out "31," and substituting "29.2 (2), 31,".

15 Section 43 is repealed and the following substituted:

Information confidential

43 (1) Despite the Freedom of Information and Protection of Privacy Act, a person must not disclose information obtained under this Act except

(a) to the extent necessary for purposes relating to the enforcement of a maintenance order,

(b) as provided in section 8 (4), or

(c) in accordance with an information-sharing agreement that is entered into

(i) under and for the purposes of the administration of the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act, and

(ii) with the minister responsible for the administration of this Act.

(2) Subsection (1) does not apply to information for research purposes disclosed in accordance with section 35 of the Freedom of Information and Protection of Privacy Act.

(3) Despite subsection (1), the director in prescribed circumstances may disclose to a reporting agency, as defined in section 1 of the Credit Reporting Act, the fact that a debtor is in arrears under a maintenance order filed with the director.

(4) Section 11 (3) (k) of the Credit Reporting Act does not apply to a disclosure under subsection (3).

16 Section 51 (2) is amended by adding the following paragraphs:

(i.1) prescribing the form of a section 12.1 notice;

(i.2) prescribing the amount of the annual default fee for the purposes of section 14.4;

(i.3) prescribing circumstances for the purposes of section 26.1 (8);

(i.4) prescribing a form for the purposes of section 26.1 (9);

(i.5) prescribing the amount under section 29.1;

(i.6) prescribing circumstances for the purposes of section 43 (3); .

17 Section 5 of the Supplement to the Family Maintenance Enforcement Act is repealed.

 
Consequential Amendments

 
Pension Benefits Standards Act

18 Section 63 of the Pension Benefits Standards Act, R.S.B.C. 1996, c. 352, is amended

(a) in subsection (1) by striking out "subsection (3)," and substituting "subsections (3) and (3.1),", and

(b) by adding the following subsection:

(3.1) Subsection (1) (a), and that portion of subsection (1) (b) that refers to a transfer of money under section 32 (2), but only in respect of excess contributions returned to a member under section 32 (3) (a), does not apply to

(a) a notice of attachment under section 15 of the Family Maintenance Enforcement Act,

(b) an order of garnishment under section 18 (2) of that Act, or

(c) an attachment order under section 24 of that Act.

Commencement

19 This Act comes into force by regulation of the Lieutenant Governor in Council.


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