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S.M. 2001, c. 31
THE IMPROVED ENFORCEMENT OF SUPPORT PAYMENTS (VARIOUS ACTS AMENDED) ACT
(Assented to July 6, 2001)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
THE FAMILY MAINTENANCE ACT
The Family Maintenance Act is amended by this Part.
The following is added after subsection 10.1(2):
Applicant and respondent must be the same persons
For greater certainty, the parties referred to in subsection (2) must be the same applicant and the same respondent in both orders.
Subclause 23(b)(ii) is amended by adding "or divorce judgment" after "nisi".
Section 25 is amended by adding the following definition in alphabetical order:
"director" means the Director of Vital Statistics under The Vital Statistics Act; (« directeur »)
Subsection 53(1) is amended
(a) by adding "respecting enforcement by a designated officer" after "The provisions of this Part";
(b) by adding "the enforcement provisions of" after "indicating that"; and
(c) by striking out "this Part ceases" and substituting "those provisions of this Part cease".
Subsection 53(2) is amended
(a) by adding "respecting enforcement by a designated officer" after "The provisions of this Part";
(b) by adding "the enforcement provisions of" after "indicating that"; and
(c) by striking out "this Part becomes" and substituting "those provisions of this Part become".
Subsection 53(3) is amended by adding "respecting enforcement by a designated officer" after "this Part".
Clause 53(3.3)(a) is amended by adding "respecting enforcement by a designated officer" after "this Part".
Subsection 53(3.5) is amended by striking out everything after "apply to the agreement" and substituting ". Upon receiving the statement, the designated officer shall immediately notify the other party to the agreement and the enforcement provisions of this Part no longer apply to the agreement."
Subsection 53(3.6) is amended by striking out "either party to the agreement may" and substituting "the person entitled to receive the payments under the agreement may,".
Subsection 53(4) is amended
(a) by striking out "Executive Director of Social Services" and substituting "Director of Field Operations, Employment and Income Assistance";
(b) in the English version, by adding "or her" after "his"; and
(c) by adding "respecting enforcement by a designated officer" after "the provisions of this Part".
Subsection 53(5) is amended by striking out everything after "court may make" and substituting "the provisions of this Part respecting enforcement by a designated officer applicable to the payments, with necessary changes."
Subsection 54(2) of the English version is amended by adding "or her" after "him".
Subclause 55(2)(b)(iv) is amended by striking out "to a third party" and substituting "or gifted to the person requested to provide the information, or to a third party".
Clause 55(2)(b) is amended by striking out "and" at the end of subclause (vii) and by adding the following after subclause (viii):
(ix) the extent of the person's control or influence over any assets or liabilities of
(A) the person requested to provide the information, or
(B) a third party,
particulars of those assets or liabilities, and the nature of the relationship between the person and a person referred to in paragraph (A) or (B), and
(x) any benefits the person receives from the assets of the person requested to provide the information or a third party.
Subsection 55(2.1) is replaced with the following:
Parties to provide information
Upon the request of the designated officer, the person required to pay maintenance or the person entitled to receive maintenance under an order, or both of them, shall
(a) provide in writing to the designated officer all information of which he or she has direct knowledge relating to the financial means, or other circumstances of either or both of them, or of a person for whom support is payable; or
(b) swear a statutory declaration containing this information;
to enable the designated officer to determine
(c) the amount of maintenance payable under the order; or
(d) the appropriate enforcement methods to be used.
Subsection 55(2.2) is replaced with the following:
Information that may be disclosed
Information received by the designated officer under this Part is confidential, except that the officer may
(a) use it to enforce an order under this Part;
(b) give it to a person in another jurisdiction who in the officer's opinion performs the same or similar functions as those performed by the officer; and
(c) give it to a person performing the minister's duties or functions under The Reciprocal Enforcement of Maintenance Orders Act.
Subsection 55(2.3) is amended
(a) by striking out "Notwithstanding anything to the contrary in any Act of the Legislature" and substituting "Notwithstanding The Freedom of Information and Protection of Privacy Act or any other Act";
(b) by striking out "after the day the request is mailed" and substituting "after service of the request"; and
(c) by striking out "any Act or regulation" and substituting "The Freedom of Information and Protection of Privacy Act or any other Act or any regulation".
Subsection 55(2.5) is replaced with the following:
Designated officer's options if no compliance
If the designated officer does not receive information requested under subsection (2) or (2.1) or a person fails to report and swear a statutory declaration under subsection (2.1) within 21 days after service of the request, the officer may take such action as he or she considers necessary or advisable, including
(a) proceedings to bring a person required to make payments under an order before a deputy registrar for an examination under section 56;
(b) proceedings to bring a person required to make payments under an order before a judge or master for a hearing under section 57; or
(c) applying to a judge or master for an order under subsection (2.6).
Information or reporting order
On motion by the designated officer, a judge or master may make an order, subject to such terms and conditions as the judge or master considers advisable,
(a) compelling a person, the government or an agency of the government to give the requested information to the designated officer; or
(b) compelling a person to report to the designated officer and swear a statutory declaration with respect to the requested information.
The following is added after subsection 55(3):
Offence re statutory declaration
A person who swears a false statutory declaration is guilty of an offence and liable on summary conviction to a fine of not more than $2,000., or imprisonment for a term of not more than 90 days, or both.
Subsection 55(4) is amended
(a) in clause (a), by adding "under The Garnishment Act" after "order";
(b) in clause (c), by adding "under The Executions Act" after "execution";
(c) in clause (g) of the French version, by striking out "prévu" and substituting "prévue";
(d) in clause (i) by striking out "a computer print-out that is certified by the designated officer and shows that" and substituting "with a computer print-out showing that"; and
(e) by adding the following after clause (i):
(j) Giving notice under section 59.1 to the person in default of possible action under The Highway Traffic Act;
(k) Proceedings under section 59.3 to obtain an order with respect to assets;
(l) Registration of a financing statement in the Personal Property Registry under section 59.4 in accordance with The Personal Property Security Act.
Subsection 56(1) is amended
(a) by repealing the part before clause (a) and substituting the following:
Whether or not any other enforcement proceedings have been taken, or could be taken, the designated officer may issue a summons, to be served personally or in any other manner a judge or master may direct requiring a person in default
(b) in clause (a), by striking out "the default" and substituting "any default".
The following is added after subsection 56(1):
For the purpose of this section, "person in default" includes a person who fails to provide information or swear a statutory declaration under subsection 55(2.1).
Clause 56(2)(e) is amended by striking out "subject to subsection 53(4) and subsection (4)".
Subsection 57(1) is amended
(a) in the part before clause (a), by striking out "under an order"; and
(b) by adding "or to be examined in respect of his or her financial means and other circumstances, or both" at the end of clause (a).
The following is added after subsection 57(1):
For the purpose of this section, "person in default" includes a person who fails to provide information or swear a statutory declaration under subsection 55(2.1).
Subsection 57(3) is amended
(a) in clause (a), by striking out "$1000." and substituting "$3,000."; and
(b) by adding the following after clause (a):
(a.1) determining whether the person required to pay maintenance is in default of a payment, and if so, fix the amount of arrears owing for the purpose of enforcement under this Part;
Subsection 57(5) is amended by striking out "subsection (4)" and substituting "clause (3)(e)".
Subsection 57(6) is amended by adding "under clause (3)(e) or (f)," after "make a deposit".
Subsection 59.1(5) is replaced with the following:
Hearing before judge or master
Where, within the time referred to in subsection (3), a person in default requests that payment of the arrears be determined by a judge or master, the designated officer shall, for the purpose of considering and determining only the payment of arrears,
(a) set a hearing date before a judge or master and advise the person in default, or his or her lawyer, of the date, time and place of the hearing; or
(b) issue a summons for the person in default to appear at a hearing before a judge or master at a time and place specified in the summons.
Clause 59.1(8)(c) is amended by adding "by the designated officer" after "this Part".
The following is added after section 59.2:
Designated officer may apply for preservation order
If the designated officer believes a person required to pay maintenance under an order is likely to evade, hinder or defeat the enforcement of an order by wasting, dissipating or disposing of assets that the person owns, possesses or controls, the designated officer may apply to the Court of Queen's Bench for an order preserving those assets.
Criteria for preservation orders
Upon an application under subsection (1), a judge or master may make one or more of the orders in subsection (3) if the judge or master finds that the person required to pay maintenance may waste, dissipate or dispose of assets that he or she owns, possesses or controls in such a way as to evade, hinder or defeat the enforcement of an order.
A judge or master may make the following types of orders:
(a) an order directing the person required to pay maintenance, or any other person, to preserve any assets that the person required to pay maintenance owns, possesses or controls;
(b) an order requiring that the person required to pay maintenance deposit a specified amount of money in the court or with a person the judge or master considers appropriate, to be held as security and for use in the event of a default in payment under the order of maintenance;
(c) an order setting aside a non-arm's length transaction between the person required to pay maintenance and another person;
(d) such other order as he or she thinks fit.
An order under this section may be made without notice.
Designated officer may file financing statement
Where a person defaults in a maintenance payment, the designated officer may register, in the name of the designated officer on behalf of the person entitled to the payment, a financing statement in the Personal Property Registry, in the form and manner prescribed under The Personal Property Security Act, claiming an interest in collateral.
The interest of the person entitled to the payment, or of the designated officer, in respect of a financing statement registered under subsection (1) is a lien and charge on the property and assets of the person required to pay maintenance, for the amount of the arrears of maintenance
(a) at the time of registration; and
(b) which accrue after the financing statement is registered.
Perfection on registration under Personal Property Security Act
Upon registration of a financing statement under subsection (1), the lien and charge arising under subsection (2)
(a) is deemed to be a security interest under The Personal Property Security Act on all personal property of the person in default, including proceeds and after-acquired personal property; and
(b) is deemed to have been perfected on the day
(i) the maintenance was due,
(ii) the enforcement provisions of this Part become applicable to the order, or
(iii) this section comes into force;
whichever occurs last.
Effect of registration under Personal Property Security Act
Upon registration of a financing statement under subsection (1), the designated officer is deemed to be a secured party under The Personal Property Security Act, and the person in default is deemed to be a debtor under that Act.
Despite any Act other than The Employment Standards Code and subject to subsection (6) (priority of prior purchase money security interests), a lien and charge under subsection (2) has priority and is payable in priority over any other claim or right in the property or assets of the person in default that exists after the lien and charge was perfected, including
(a) any claim or right of the Crown in right of Manitoba; and
(b) any lien, charge, encumbrance, assignment, including an assignment of book debts, debenture or other security of whatever kind of any person, and any security interest as defined in The Personal Property Security Act.
Priority of certain prior purchase money security interests
A lien and charge under subsection (2) does not take priority over a purchase money security interest that is perfected
(a) before a financing statement is registered under subsection (1); or
(b) within 15 days after the day the person required to pay maintenance obtains possession of the collateral.
In this section,
"authorized employee" means a person designated under subsection (2); (« employé autorisé »)
"business day" means a day on which the office of the designated officer is open during its regular hours of business; (« jour ouvrable »)
"claimant" means a person entitled to all or part of a lottery prize who makes a claim in Manitoba or has a Manitoba address; (« demandeur »)
"corporation" means the Western Canada Lottery Corporation and includes a corporation that is a successor to it; (« société »)
"lottery prize" means a prize in a lottery scheme that is a monetary prize of $1,001. or more, or a non-monetary prize having a fair market value of $1001. or more; (« prix de loterie »)
"lottery scheme" means a lottery scheme within the meaning of the Criminal Code (Canada), conducted and managed by the corporation; (« loterie »)
"lottery ticket" means a ticket, certificate, subscription form or other evidence of participation in a lottery scheme. (« billet de loterie »)
The corporation shall designate, in writing, one or more employees or officers of the corporation who are authorized by the corporation to obtain information from the records of the designated officer and carry out the obligations of the corporation under this section.
Authorized employee may search designated officer's records about persons in default
The designated officer shall allow an authorized employee to search the names and other identifying information about persons in default of obligations to make payments under orders enforced under this Part, as contained in the records of the designated officer, for the purpose of determining if a claimant is one of those persons.
Corporation obtains name and identifying information about claimant
When a claimant makes a claim for a lottery prize, the corporation shall
(a) obtain the names of all claimants for the lottery prize and any identifying and other information required in the regulations; and
(b) take possession of the lottery ticket.
Corporation searches records about persons in default
Using the name and other identifying information about the claimant as authorized in the regulations, an authorized employee, on behalf of the corporation, shall search the records of the designated officer as provided in subsection (3) to determine if that claimant is a person who is in default.
If claimant listed in records about persons in default 59.5(6) If a search of the records of the designated officer under subsection (5) indicates that the claimant is a person who is in default, the corporation shall
(a) immediately notify the designated officer in writing, in the manner set out in the regulations, of
(i) the name of, and identifying information about, the claimant and any other information required in the regulations, and
(ii) the particulars and value of the lottery prize being claimed by the claimant; and
(b) retain the lottery ticket and withhold payment or delivery of the lottery prize until the close of business at the office of the designated officer on the business day after the business day on which the designated officer receives notice under clause (a), unless the designated officer notifies the corporation in writing, in the manner set out in the regulations, that all or part of the lottery prize can be paid or delivered.
Where the designated officer requests that a monetary prize be substituted for a claimant's non-monetary prize, the corporation shall substitute a monetary prize.
Enforcement proceedings re lottery prize
Whether or not other enforcement proceedings are being taken, the designated officer may take proceedings with respect to the lottery prize to obtain
(a) a garnishing order under section 4 or 13.1 of The Garnishment Act; or
(b) a writ of execution under The Executions Act.
No employee, officer or agent of the corporation shall use or disclose any information provided or obtained from the records of the designated officer except for the purposes of this section.
Immunity for acts in good faith
No action or proceeding may be commenced against the corporation or an authorized employee for any act done in good faith in the performance of a duty or the exercise of a power under this section.
The Lieutenant Governor in Council may make regulations
(a) respecting information that is required or authorized to be obtained, used or included in a notification under this section;
(b) as to the manner in which a notification shall be provided under subsection (6).
Subsection 60(1) is replaced with the following:
Where there is default in respect of an order, a judge or master, upon an application made by or on behalf of the person in whose favour the order was made, may appoint a receiver, to the extent of any payments due or accruing due under the order, for any of the following purposes:
(a) to collect any moneys due, owing or payable to, or to become due, owing or payable to, or earned or to be earned by, the person in default;
(b) to take all steps necessary to apply for and receive any benefit, credit, interest or entitlement available to the person in default;
(c) to take all steps necessary to take possession of and realize upon property in which the person in default has an interest or entitlement;
(d) to take all steps necessary to pursue any action that is available to the person in default;
(e) to take any other steps or be given any other authority that the judge or master considers necessary or advisable.
The following is added after section 60:
Assets of a corporation or other person
In this section, a reference to a person required to pay maintenance, or another person on his or her behalf, "exercising authority over a corporation or other person" is a reference to the situation where, with respect to assets that are legally owned or otherwise held by that corporation or other person,
(a) the person required to pay maintenance, or another person on his or her behalf, is using or otherwise dealing with or is in a position to use or otherwise deal with those assets in a manner that is or would be similar to that of a person who legally owns or otherwise holds the assets; or
(b) the person required to pay maintenance, or another person on his or her behalf, is in a position to compel or otherwise influence the corporation or other person
(i) to use or deal with the assets as directed by the person required to pay maintenance or another person on his or her behalf, or
(ii) to permit the person required to pay maintenance, or another person on his or her behalf, to use or otherwise deal with the assets in a manner that would be similar to that of a person who legally owns or otherwise holds the assets.
Application to Court of Queen's Bench
If
(a) the person required to pay maintenance has defaulted with respect to a payment under an order; and
(b) with respect to assets legally owned or otherwise held by a corporation or other person, the designated officer is of the opinion that the person required to pay maintenance, or another person on his or her behalf, is exercising authority over the corporation or other person;
the designated officer may apply to a judge of the Court of Queen's Bench for an order directing that the assets are subject to garnishment or execution, as the case may be, for the purposes of paying the arrears under the order.
An application made under subsection (2) may be made without notice.
If on hearing an application the judge finds that
(a) the person required to pay maintenance has defaulted in a payment required under an order; and
(b) with respect to the assets that are legally owned or otherwise held by a corporation or other person, the person required to pay maintenance, or another person on his or her behalf is exercising or has exercised authority over the corporation or other person as defined in subsection 60.1(1);
the judge may by order do one or more of the following:
(c) declare that the assets legally owned or otherwise held by a corporation or other person are assets of the person required to pay maintenance and direct that the assets or any specific portion of them are subject to garnishment, execution, or to an order of receivership under subsection 60(1), as the case may be, for the purposes of paying the arrears owed under the order;
(d) give such other direction or make such other order as the judge considers appropriate in the circumstances;
Subsection 61(3) is replaced with the following:
Death of person entitled to receive payments
Where the person entitled to receive payments under an order dies, the personal representative of the deceased may, subject to subsection (4),
(a) recover for the estate of the deceased any payments in default at the time of the death; or
(b) sign and file a statement in a form satisfactory to the designated officer indicating that the provisions of this Part respecting enforcement by a designated officer apply to the order, with the necessary changes.
Section 64 is replaced with the following:
In this section,
"director" means the Director of Field Operations, Employment and Income Assistance under The Social Services Administration Act, or a person acting under his or her authority; (« directeur »)
"order" means an order as defined in Part VI. (« ordonnance »)
An order or agreement for maintenance or support may be assigned to the director.
If the director has an address for the person required to make payments under an order that has been assigned under subsection (2), the director shall notify the person of the assignment by regular lettermail at that address.
The director is entitled to the payments due under the order and has the same right to be notified of and participate in any proceedings under this Act to vary, discharge, suspend or enforce payments, or arrears of payments under the order, as has the person who is entitled to the payments under the order.
THE EXECUTIONS ACT
The Executions Act is amended by this Part.
Section 19 is amended by striking out "In respect" and substituting "Subject to section 19.1, in respect".
The following is added after section 19:
Priority for maintenance orders
Subject to section 3, a writ of execution that has been issued as a result of proceedings taken by a designated officer under Part VI of The Family Maintenance Act has priority of claim over what is seized or realized under any other writ of execution.
If a writ of execution is issued as a result of proceedings taken under Part VI of The Family Maintenance Act, a designated officer may at any time file with the sheriff a statutory declaration stating the amount currently owing under the order for which the writ of execution was issued, and the writ of execution is deemed to be amended to specify the amount owing in accordance with the statutory declaration.
Notice from sheriff of opportunity to amend writ
If a sheriff has in his or her possession or control money to be paid out under a writ of execution that has been issued as a result of proceedings taken by a designated officer under Part VI of The Family Maintenance Act, the sheriff shall immediately give notice to the designated officer of the opportunity to file a statutory declaration under subsection (2).
Subsection 20(4) is amended by striking out "by distributing any balance amongst the execution creditors" and substituting "subject to section 19.1 by distributing any balance among the remaining execution creditors,".
The part of subsection 23(1) before clause (a) is replaced with the following:
Except as provided by The Family Maintenance Act or any other Act, the following personal estate is declared free from seizure by all writs of execution issued by any court in the province, namely:
CONDITIONAL AMENDMENTS AND COMING INTO FORCE
If during the Second Session of the 37th Legislature, Bill 37 entitled The Inter-jurisdictional Support Orders Act is assented to, then subsection 55(2.2) of The Family Maintenance Act, as enacted by subsection 8(2), 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 after clause (c):
(d) give it to a designated authority or his or her delegate under The Inter-jurisdictional Support Orders Act.
This Act, except section 13 insofar as it enacts section 59.5 of The Family Maintenance Act, comes into force on the day it receives royal assent.
Section 13 insofar as it enacts section 59.5 of The Family Maintenance Act comes into force on a day fixed by proclamation.