BILL NO. 62

1st Session, 57th General Assembly
Nova Scotia
47 Elizabeth II, 1998

Government Bill

Maintenance Enforcement Act
(amended)

The Honourable James A. Smith, M.D.
Minister of Justice

First Reading: November 3, 1998

(Explanatory Notes)

Second Reading: November 13, 1998

Third Reading: November 26, 1998 (WITH COMMITTEE AMENDMENTS)

Clause 1 enables the Director of Maintenance Enforcement to accept for enforcement an assignment of maintenance rights agreement entered into between the recipient and a representative of the Department of Community Services.

Clause 2 provides that the Director is not required to enforce a maintenance order where the amount payable under the order cannot be determined from the face of the order or it is dependent on another variable that does not appear on the maintenance order.

Clause 3 removes a provision that has proved to be unnecessary and that has caused unnecessary documentation and work.

Subclause 4(1) sets out to whom money received by the Director may be paid.

Subclause 4(2) broadens the information required to be kept by the Director.

Subclause 4(3) provides that where the Director forwards to the recipient an amount to which the recipient is not entitled, the Director may deduct that amount from subsequent payments received on behalf of the recipient.

Clause 5 enables the Director to attach locked-in pension or RRSP funds belonging to the payor where all other reasonable steps have been taken to enforce arrears of maintenance.

Clause 6 permits information received by the Director pursuant to the Act to be disclosed in certain circumstances.

Clause 7 provides that no cause or action lies for anything done in good faith pursuant to the Maintenance Enforcement Act.

Be it enacted by the Governor and Assembly as follows:

1 Chapter 6 of the Acts of 1994-95, the Maintenance Enforcement Act, is amended by adding immediately after Section 9 the following Section:

9A The Director may accept for enforcement an assignment of maintenance rights agreement as entered into between the recipient and a representative of the Department of Community Services.

2 Subsection 11(1) of Chapter 6 is amended by adding immediately after clause (d) the following clause:

(da) the amount of the support or maintenance cannot be determined from the face of the maintenance order or it is dependent on another variable that does not appear on the maintenance order;

3 Section 16 of Chapter 6 is repealed.

4 (1) Subsection 18(4) of Chapter 6 is repealed and the following subsection substituted:

(4) Money received by the Director may be paid to

(a) the recipient or to the beneficiaries under the order to the extent of the recipient or the beneficiaries' entitlement or otherwise pursuant to the maintenance order; or

(b) the Department of Community Services where money is owed to that Department pursuant to an assignment of maintenance rights agreement entered into between the recipient and a representative of the Department,

and then to cover the costs and fees of the Director and then to the payor, where a balance remains.

(2) Subsection 18(5)(c) of Chapter 6 is repealed and the following subsection substituted:

(5) The Director shall keep a record of all payments that, while a maintenance order is filed with the Director, become due to the recipient and that are received and forwarded by the Director on account of a maintenance order filed with the Director.

(3) Section 18 of Chapter 6 is further amended by adding immediately after subsection (5) the following subsection:

(5A) Where the Director forwards to the recipient an amount to which the recipient is not entitled under the maintenance order, the Director may deduct that amount from subsequent payments received on behalf of the recipient.

5 Chapter 6 is further amended by adding immediately after Section 27 the following Sections:

27A In this Section and in Sections 27B to 27F,

(a) "administrator" means a person charged with the administration of a pension plan and includes a financial or other institution that uses, underwrites or is a depository of

(i) benefits,

(ii) monies that have been transferred to another plan, to a prescribed registered retirement savings plan or to any other prescribed retirement plan that is registered pursuant to the Income Tax Act (Canada), including monies transferred before January 1, 1993, and

(iii) monies earned by those transferred monies referred to in subclause (ii);

(b) "pension entitlement" means the amount of money in a pension plan of a payor that is available for attachment pursuant to this Act;

(c) "pension plan" means a pension plan governed by an Act that permits a pension entitlement to be attached and includes

(i) benefits,

(ii) monies that have been transferred to another plan, to a prescribed registered retirement savings plan or to any other prescribed retirement plan that is registered pursuant to the Income Tax Act (Canada), including monies transferred before January 1, 1993, and

(iii) monies earned by those transferred monies referred to in subclause (ii).

27B Notwithstanding any enactment, the Director may enforce a maintenance order by attaching the pension entitlement of a payor pursuant to Section 27F where

(a) the payor is in arrears in an amount not less than three months' payment respecting an obligation under a maintenance order that is filed in the office of the Director;

(b) in the opinion of the Director all reasonable steps have been taken to enforce the maintenance order;

(c) the Director has served the administrator and the payor with a notice of the Director's intention referred to in Section 27C; and

(d) the payor has not, before the service of a notice of attachment on the administrator pursuant to Section 27F, made arrangements satisfactory to the Director to fulfil the obligation under the maintenance order.

27C (1) The notice of the Director's intention to attach the payor's pension entitlement is to be in the prescribed form and is to

(a) direct the administrator to provide the Director and the payor, within thirty days, with prescribed information respecting the payor's pension entitlement;

(b) notify the payor, in accordance with the regulations, that the payor may apply to the court pursuant to Section 27E within thirty days of receipt of the information referred to in clause (a) for an order that the payor's pension entitlement is not to be attached; and

(c) notify the payor, in accordance with the regulations, of the costs, income tax implications and pension reductions that would result from the attachment of the payor's pension entitlement.

(2) The administrator may provide the information referred to in clause (1)(a) to the payor at the most recent address for the payor in the administrator's records.

(3) Failure of the administrator to provide the information referred to in clause (1)(a) to the payor does not render the attachment ineffective.

27D(1) The Director shall not enforce a maintenance order by attaching the pension entitlement of a payor where

(a) the payor is a member of a pension plan and

(i) the payor is required to make contributions to the plan that the Director proposes to attach, or

(ii) the payor's employer is required by the plan to make contributions on the payor's behalf to the plan that the Director proposes to attach;

or

(b) the payor is receiving a pension benefit pursuant to the pension plan that the Director proposes to attach.

(2) Where an administrator is served with a notice of the Director's intention, the administrator shall not pay out any of the payor's pension entitlement at the direction of the payor until sixty days have elapsed from

(a) where no application is made to the court, the date that the Director received the information referred to in clause 27C(1)(a); or

(b) where an application is made to the court, the date that the court orders that the payor's pension entitlement may be attached.

27E (1) The court, on application by the payor, may order that the payor's pension entitlement is not to be attached where the court is satisfied that

(a) the payor is not in arrears in an amount not less than three months' payments respecting an obligation under a maintenance order that is filed in the office of the Director;

(b) the payor is a member of a pension plan and

(i) is required to make contributions to the plan that the Director proposes to attach, or

(ii) the payor's employer is required by the plan to make contributions on the payor's behalf to the plan that the Director proposes to attach; or

(c) the payor is receiving a pension benefit pursuant to the pension plan that the Director proposes to attach.

(2) A payor applying to the court shall serve the Director and the administrator with notice of the application.

27F (1) The Director may serve the administrator with a notice of attachment of the payor's pension entitlement in the prescribed form where

(a) an application pursuant to Section 27E

(i) has not been made to the court by the payor, or

(ii) has been made to the court by the payor but the court has not ordered that the payor's pension entitlement is not to be attached; and

(b) not more than sixty days have elapsed from

(i) where no application is made to the court, the date that the Director received the information referred to in clause 27C(1)(a), or

(ii) where an application is made to the court pursuant to Section 27E, the date that the court orders that the payor's pension entitlement may be attached.

(2) Where the Director serves a notice of attachment, the administrator shall

(a) immediately deliver, personally or by ordinary mail, a copy of the notice to the payor; and

(b) comply with the notice of attachment within forty-five days of receiving the notice.

(3) The administrator may deliver the notice of attachment to the payor at the most recent address for the payor in the administrator's records.

(4) Failure of the administrator to comply with clause (2)(a) does not render the attachment ineffective.

6 (1) Subsection 32(1) of Chapter 6 is amended by

(a) striking out "or" immediately after clause (b); and

(b) adding immediately after clause (b) the following clauses:

(ba) in accordance with an information sharing agreement entered into under and for the purpose of the administration of the Family Benefits Act;

(bb) as authorized by the Minister of Justice; or

(2) Section 32 of Chapter 6 is further amended by adding immediately after subsection (2) the following subsection:

(3) Notwithstanding subsection (1), the Director may disclose to a consumer reporting agency registered pursuant to the Consumer Reporting Act

(a) the name of a payor who is in default on a maintenance order filed in the office of the Director;

(b) the date of the maintenance order;

(c) the amount and frequency of the payor's obligation under the maintenance order;

(d) the amount of the arrears owing under the maintenance order at the time of the disclosure; and

(e) such other information as may be prescribed.

7 Chapter 6 is further amended by adding immediately after Section 60 the following Section:

60A No action lies or shall be instituted against a person who is acting pursuant to the authority contained in this Act or the regulations for any loss or damage suffered by a person by reason of anything done in good faith or caused, permitted or authorized to be done by a person pursuant to any power conferred by this Act or the regulations or in carrying out any duty imposed by this Act or the regulations.