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


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


HONOURABLE DENNIS STREIFEL
MINISTER OF HUMAN RESOURCES

BILL 33 -- 1997

BC BENEFITS STATUTES 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1 Part 3 of the BC Benefits (Income Assistance) Act, R.S.B.C. 1996, c. 27, is repealed.

2 Section 24 (3) (i) and (j) is repealed.

3 The following section is added:

Eligibility and assignment of maintenance rights

24.1 (1) The Lieutenant Governor in Council may make regulations governing the assignment of maintenance rights and the recovery of the amount of income assistance provided in place of maintenance, including the following regulations:

(a) prescribing categories of persons who are not eligible for income assistance unless they and their dependants assign to the minister any maintenance rights that

(i) they have respecting maintenance for themselves or a dependent child, and

(ii) are specified under paragraph (b);

(b) specifying maintenance rights that are to be assigned to the minister, including, but not limited to, any of the following rights:

(i) to make an application under an enactment of British Columbia for a maintenance order;

(ii) to enter into a maintenance agreement;

(iii) to make or defend an application for variation of a maintenance order or maintenance agreement;

(iv) to receive payment under

(A) a maintenance order made under the Divorce Act (Canada) or otherwise, or

(B) a maintenance agreement;

(v) to enforce a maintenance order or maintenance agreement;

(vi) to file a maintenance order or maintenance agreement under the Family Maintenance Enforcement Act;

(c) governing how and to whom notice of an assignment of maintenance rights must be given;

(d) governing how long an assignment of maintenance rights remains in effect for different categories of maintenance rights;

(e) prescribing terms that are to be included in an assignment of maintenance rights and the consequences of failure to comply with those terms;

(f) determining the amounts that may

(i) be deducted from maintenance payments received under an assignment of maintenance rights, and

(ii) be retained by the government,

to recover the amount of income assistance provided in place of maintenance while the assignment is in effect;

(g) respecting the method of accounting to a recipient for payments received under an assignment of maintenance rights and for deductions made from those payments;

(h) respecting any matter considered necessary or advisable for

(i) phasing in the application of a regulation made under this section to any category of persons and their dependants, and

(ii) resolving any transitional problems encountered in applying a regulation made under this section to persons who are recipients of income assistance when that regulation comes into force.

(2) A regulation under subsection (1) (b) (iv) may specify that the minister be assigned the right to receive arrears of maintenance that are paid while the assignment is in effect, even though the arrears accrued before

(a) the regulation came into force, or

(b) income assistance was provided to or for the person who becomes eligible as a result of the assignment.

(3) A regulation under subsection (1) (d) may provide that an assignment of maintenance rights remains in effect for a specified period after the person who became eligible for income assistance as a result of the assignment ceases to receive income assistance.

(4) While an assignment of maintenance rights is in effect, the minister

(a) may make an application or bring a proceeding relating to the assigned rights in the name of the government or in the name of the person who made the assignment, and

(b) has the same right to be notified and to participate in any proceedings relating to the assigned rights that, but for that assignment, the person who made the assignment would have had.

(5) While an assignment of maintenance rights is in effect, the person who made the assignment is not entitled to exercise any of the assigned rights

(a) except to the extent authorized in writing by the minister, and

(b) subject to any terms or conditions specified in the authorization.

 
BC Benefits (Youth Works) Act

4 The BC Benefits (Youth Works) Act, R.S.B.C. 1996, c. 28, is amended by adding the following section:

Eligibility and assignment of maintenance rights

15.1 (1) The Lieutenant Governor in Council may make regulations governing the assignment of maintenance rights and the recovery of the amount of youth allowance provided in place of maintenance, including the following regulations:

(a) prescribing categories of youth who are not eligible for a youth allowance unless they and their dependants assign to the minister any maintenance rights that

(i) they have respecting maintenance for themselves or a dependent child, and

(ii) are specified under paragraph (b);

(b) specifying the maintenance rights that are to be assigned to the minister, including, but not limited to, any of the following rights:

(i) to make an application under an enactment of British Columbia for a maintenance order;

(ii) to enter into a maintenance agreement;

(iii) to make or defend an application for variation of a maintenance order or maintenance agreement;

(iv) to receive payment under

(A) a maintenance order made under the Divorce Act (Canada) or otherwise, or

(B) a maintenance agreement;

(v) to enforce a maintenance order or maintenance agreement;

(vi) to file a maintenance order or maintenance agreement under the Family Maintenance Enforcement Act;

(c) governing how and to whom notice of an assignment of maintenance rights must be given;

(d) governing how long an assignment of maintenance rights remains in effect for different categories of maintenance rights;

(e) prescribing terms that are to be included in an assignment of maintenance rights and the consequences of failure to comply with those terms;

(f) determining the amounts that may

(i) be deducted from maintenance payments received under an assignment of maintenance rights, and

(ii) be retained by the government,

to recover the amount of youth allowance provided in place of maintenance while the assignment is in effect;

(g) respecting the method of accounting to a youth for payments received under an assignment of maintenance rights and for deductions made from those payments;

(h) respecting any matter considered necessary or advisable for

(i) phasing in the application of a regulation made under this section to any category of youth and their dependants, and

(ii) resolving any transitional problems encountered in applying a regulation made under this section to youth who are being provided with a youth allowance when that regulation comes into force.

(2) A regulation under subsection (1) (b) (iv) may specify that the minister be assigned the right to receive arrears of maintenance that are paid while the assignment is in effect, even though the arrears accrued before

(a) the regulation came into force, or

(b) a youth allowance was provided to or for the youth who became eligible as a result of the assignment.

(3) A regulation under subsection (1) (d) may provide that an assignment of maintenance rights remains in effect for a specified period after the youth who became eligible for a youth allowance as a result of the assignment ceases to receive that allowance.

(4) While an assignment of maintenance rights is in effect, the minister

(a) may make an application or bring a proceeding relating to the assigned rights in the name of the government or in the name of the youth or dependant who made the assignment, and

(b) has the same right to be notified and to participate in any proceedings relating to the assigned rights that, but for that assignment, the youth or dependant who made the assignment would have had.

(5) While an assignment of maintenance rights is in effect, the youth or dependant who made the assignment is not entitled to exercise any of the assigned rights

(a) except to the extent authorized in writing by the minister, and

(b) subject to any terms or conditions specified in the authorization.

 
Disability Benefits Program Act

5 The Disability Benefits Program Act, R.S.B.C. 1996, c. 97, is amended by adding the following section:

Eligibility and assignment of maintenance rights

13.1 (1) The Lieutenant Governor in Council may make regulations governing the assignment of maintenance rights and the recovery of the amount of disability allowance provided in place of maintenance, including the following regulations:

(a) prescribing categories of persons with disabilities who are not eligible for a disability allowance unless they and their dependants assign to the minister any maintenance rights specified under paragraph (b);

(b) specifying the maintenance rights that are to be assigned to the minister, including, but not limited to, any of the following rights:

(i) to make an application under an enactment of British Columbia for a maintenance order;

(ii) to enter into a maintenance agreement;

(iii) to make or defend an application for variation of a maintenance order or maintenance agreement;

(iv) to receive payment under

(A) a maintenance order made under the Divorce Act (Canada) or otherwise, or

(B) a maintenance agreement;

(v) to enforce a maintenance order or maintenance agreement;

(vi) to file a maintenance order or maintenance agreement under the Family Maintenance Enforcement Act;

(c) governing how and to whom notice of an assignment of maintenance rights must be given;

(d) governing how long an assignment of maintenance rights remains in effect for different categories of maintenance rights;

(e) prescribing terms that are to be included in an assignment of maintenance rights and the consequences of failure to comply with those terms;

(f) determining the amounts that may

(i) be deducted from maintenance payments received under an assignment of maintenance rights, and

(ii) be retained by the government,

to recover the amount of disability allowance provided in place of maintenance while the assignment is in effect;

(g) respecting the method of accounting to a person with disabilities for payments received under an assignment of maintenance rights and for deductions made from those payments;

(h) respecting any matter considered necessary or advisable for

(i) phasing in the application of a regulation made under this section to any category of persons with disabilities and their dependants, and

(ii) resolving any transitional problems encountered in applying a regulation made under this section to persons with disabilities who are being provided with a disability allowance when that regulation comes into force.

(2) A regulation under subsection (1) (b) (iv) may specify that the minister be assigned the right to receive arrears of maintenance that are paid while the assignment is in effect, even though the arrears accrued before

(a) the regulation came into force, or

(b) a disability allowance was provided to or for the person who became eligible as a result of the assignment.

(3) A regulation under subsection (1) (d) may provide that an assignment of maintenance rights remains in effect for a specified period after the person who became eligible for a disability allowance as a result of the assignment ceases to receive that allowance.

(4) While an assignment of maintenance rights is in effect, the minister

(a) may make an application or bring a proceeding relating to the assigned rights in the name of the government or in the name of the person who made the assignment, and

(b) has the same right to be notified and to participate in any proceedings relating to the assigned rights that, but for that assignment, the person who made the assignment would have had.

(5) While an assignment of maintenance rights is in effect, the person who made the assignment is not entitled to exercise any of the assigned rights

(a) except to the extent authorized in writing by the minister, and

(b) subject to any terms or conditions specified in the authorization.

 
Consequential Amendments

Family Maintenance Enforcement Act

6 Section 1 (1) of the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127, is amended by repealing the definition of "creditor" and substituting the following:

"creditor"

(a) in relation to a maintenance order, except one referred to in paragraph (b), means the person entitled under the order to receive maintenance for himself or herself or another person, and, in the following provisions of this Act, includes any minister to whom the order is assigned under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act:

(i) section 9 (1);

(ii) section 10 (1) (a) (ii);

(iii) section 11 (1) and (2);

(iv) section 28 (2) and (4), and

(b) in relation to a maintenance order requiring a parent to contribute to the maintenance of a child who is in the care of a director under the Child, Family and Community Service Act, means that director; .

7 Section 1 is amended by adding the following subsections:

(1.1) For the purposes of this Act, a maintenance order is considered to be assigned to a minister under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act during the period

(a) beginning on the date the right to receive payment under the order or the right to file the maintenance order under this Act is assigned to that minister, and

(b) ending on the date the assignment terminates.

(1.2) While a maintenance order is assigned to a minister referred to in subsection (1.1), that minister is deemed for the purposes of this Act to be a party to the maintenance order.

8 Section 5 (2) is repealed and the following substituted:

(2) Unless the maintenance order is assigned to a minister under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act, the director

(a) may, in writing, authorize the creditor to enforce a maintenance order while it is filed with the director, and

(b) may include any conditions in the authorization.

9 Section 6 (5) is repealed and the following substituted:

(5) Despite subsections (1), (2) and (2.1), a maintenance order that is assigned to a minister under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act may only be withdrawn from filing

(a) by the minister to whom the order is assigned, or

(b) with the written consent of that minister.

10 Section 10 (1) is amended

(a) in paragraph (a) by striking out "payable" and substituting "payable, despite the terms of an assignment under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act" , and

(b) by repealing paragraph (b) and substituting the following:

(b) with the written approval of the director be made directly to the creditor, except to the extent that the right to receive payment under the maintenance order is assigned to a minister under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act.

11 Section 18 is amended

(a) in subsection (6) by striking out "to the creditor or to the director" and substituting "to a person authorized under subsection (6.1) to receive payment,", and

(b) by adding the following subsection:

(6.1) For the purposes of subsection (6), the following are authorized to receive payment out of court:

(a) the director, if the maintenance order is filed under this Act;

(b) the creditor, unless the maintenance order is assigned as described in paragraph (c);

(c) the minister to whom the maintenance order is assigned, if it is assigned under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act.

12 Section 21 (10) is repealed and the following substituted:

(10) If an order for payment under subsection (1), (3) (b) or (11) is in force, a payment made by the debtor must be credited in the following descending order of priority:

(a) to the amount due and owing under the maintenance order after the date of the order under subsection (1), (3) (b) or (11);

(b) to any arrears required to be paid under an order under subsection (1), (3) (b) or (11) that are due and owing to the creditor and not described by paragraph (e);

(c) to any other amount, not referred to in another paragraph, due and owing;

(d) to interest payable under section 11.1;

(e) to any arrears required to be paid under an order under subsection (1), (3) (b) or (11) that are due and owing to the minister, if the maintenance order is assigned to a minister under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act;

(f) to any annual default fee.

13 Section 24 (8) is amended by striking out "Payment made by an attachee to the court or to a creditor" and substituting "Payment made by an attachee to the court or the person specified in the attachment order".

14 Section 32 is repealed and the following substituted:

How payments are credited and reduction of arrears applied

32 (1) Unless the court otherwise orders, all payments, except when an order for payment under section 21 (1), (3) (b) or (11) is in effect, must be credited in the following descending order of priority:

(a) to the periodic payment most recently due under the maintenance order;

(b) to arrears due and owing other than arrears described under paragraph (e);

(c) to any other amount, not referred to in another paragraph, due and owing in respect of the maintenance order;

(d) to interest payable under section 11.1;

(e) to any arrears that are due and owing to the minister, if the maintenance order is assigned to a minister under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program Act;

(f) to any annual default fee.

(2) Unless the court otherwise orders, if arrears of maintenance are reduced by a court, the amount by which they are reduced must first be applied to reduce arrears referred to in subsection (1) (e).

15 Section 41 (2) is repealed and the following substituted:

(2) A statement signed by the director and stating that a maintenance order is filed with the director is, without proof of the signature, conclusive evidence of the facts stated.

 
Family Relations Act

16 Section 91 (5) of the Family Relations Act, R.S.B.C. 1996, c. 128, is repealed and the following substituted:

(5) If the right to apply for an order under this Part is assigned to a minister under section 24.1 of the BC Benefits (Income Assistance) Act, section 15.1 of the BC Benefits (Youth Works) Act or section 13.1 of the Disability Benefits Program Act, the minister to whom the right is assigned may apply for the order in the name of the government or the name of the person who made the assignment.

Commencement

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

 
Explanatory Notes

[This Bill amends the Revised Statutes of British Columbia, 1996. The Revised Statutes of British Columbia, 1996 came into force on April 21, 1997.]

SECTION 1: [BC Benefits (Income Assistance) Act, repeals Part 3] repeals provisions relating to the voluntary assignment of maintenance rights.

SECTION 2: [BC Benefits (Income Assistance) Act, repeals section 24 (3) (i) and (j)] removes regulatory powers that relate to Part 3 which is being repealed.

SECTION 3: [BC Benefits (Income Assistance) Act, enacts section 24.1] adds a provision authorizing the Lieutenant Governor in Council to make regulations for the assignment of maintenance rights and for the recovery of income assistance paid out when maintenance payments required by an agreement or court order are not made. The new provision authorizes the Lieutenant Governor in Council to prescribe categories of persons who are not eligible for income assistance unless their rights to maintenance are assigned. It also specifies some of the legal and procedural consequences of an assignment of maintenance rights.

SECTION 4: [BC Benefits (Youth Works) Act, enacts section 15.1] adds a provision, similar to section 24.1 of the BC Benefits (Income Assistance) Act, authorizing the Lieutenant Governor in Council to make regulations for the assignment of maintenance rights and for the recovery of youth allowance paid out when maintenance payments required by an agreement or court order are not made. The new provision authorizes the Lieutenant Governor in Council to prescribe categories of persons who are not eligible for youth allowances unless their rights to maintenance are assigned. It also specifies some of the legal and procedural consequences of an assignment of maintenance rights.

SECTION 5: [Disability Benefits Program Act, enacts section 13.1] adds a provision, similar to section 24.1 of the BC Benefits (Income Assistance) Act and section 15.1 of the BC Benefits (Youth Works) Act, authorizing the Lieutenant Governor in Council to make regulations for the assignment of maintenance rights and for the recovery of disability allowance paid out when maintenance payments required by an agreement or court order are not made. The new provision authorizes the Lieutenant Governor in Council to prescribe categories of persons who are not eligible for a disability allowance unless their rights to maintenance are assigned. It also specifies some of the legal and procedural consequences of an assignment of maintenance rights.

SECTION 6: [Family Maintenance Enforcement Act, amends section 1 (1)] expands the definition of "creditor" to include, for certain purposes, the appropriate minister if a maintenance order has been assigned under the BC Benefits legislation (the BC Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act and the Disability Benefits Program Act).

SECTION 7: [Family Maintenance Enforcement Act, adds section 1 (1.1) and (1.2)] adds provisions specifying the period an assignment is in place for purposes of the Family Maintenance Enforcement Act and deeming the minister to be a party during that period.

SECTION 8: [Family Maintenance Enforcement Act, repeals and replaces section 5 (2)] ensures that only the director of maintenance enforcement can enforce a maintenance order while it is filed with the director and assigned to a minister.

SECTION 9: [Family Maintenance Enforcement Act, repeals and replaces section 6 (5)] ensures that only the minister can withdraw a maintenance order from filing while it is assigned to the minister.

SECTION 10: [Family Maintenance Enforcement Act, amends section 10)] makes changes to the provisions directing how payments are to be made under filed orders. The change are consequential to the amendments to the BC Benefits legislation.

SECTION 11: [Family Maintenance Enforcement Act, amends section 18)] makes changes to the garnishment provisions. The change are consequential to the amendments to the BC Benefits legislation.

SECTION 12: [Family Maintenance Enforcement Act, repeals and replaces section 21 (10)] makes changes to the provisions directing how payments are to be credited if they are made in compliance with a court order made at a default hearing. The changes are consequential to the amendments to the BC Benefits legislation.

SECTION 13: [Family Maintenance Enforcement Act, amends section 24 (8)] makes changes to the provisions relating to payments made under attachment orders The changes are consequential to the amendments to the BC Benefits legislation.

SECTION 14: [Family Maintenance Enforcement Act, re-enacts section 32] makes changes to the crediting of payments provision to specify the order of priority for allocating payments to arrears when a maintenance order is assigned under the BC Benefits legislation. Also, adds provisions about the effect of a reduction in arrears.

SECTION 15: [Family Maintenance Enforcement Act, repeals and replaces section 41 (2)] makes changes consequential to the repeal of Part 3 of the BC Benefits (Income Assistance) Act.

SECTION 16: [Family Relations Act, repeals and replaces section 91 (5)] makes changes to a procedural provision of the Family Relations Act relating to application for maintenance orders. The changes are consequential to the amendments to the BC Benefits legislation.


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