BILL 4

An Act to Amend the Family Services Act

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

1 Section 113 of the Family Services Act, chapter F-2.2 of the Acts of New Brunswick, 1980, is repealed and the following is substituted:

113(1) Subject to subsection (2), every parent has an obligation, to the extent the parent is capable of doing so, to provide support, in accordance with need,

(a) for his or her child, and

(b) for his or her child at or over the age of majority who is unable to withdraw from the charge of his or her parents or to obtain the necessaries of life by reason of illness, disability, pursuit of reasonable education or other cause.

113(2) For the purposes of an application under section 115 for an order for the support of a dependant

(a) who is a child, the support to be provided pursuant to the obligation referred to in paragraph (1)(a) shall be an amount determined in accordance with subsections 115(1.1) to (1.6) and the regulations respecting orders for child support, or

(b) who is a child at or over the age of majority, the support to be provided pursuant to the obligation referred to in paragraph (1)(b) shall be an amount determined in accordance with the regulations respecting orders for child support or, if the court considers that amount to be inappropriate, an amount the court considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.

2 Subsection 115(6) of the Act is amended by striking out the portion preceding paragraph (a) and substituting the following:

115(6) In determining the amount, if any, of support in relation to need, for a dependant who is neither a child nor a child at or over the age of majority, the court shall consider all the circumstances of the parties, including,

3 Section 115.1 of the Act is repealed and the following is substituted:

115.1(1) Where a court is considering an application for an order for the support of a dependant referred to in subsection 113(1) and an application for an order for the support of any other dependant, the court shall give priority to the support for the dependant referred to in subsection 113(1) in determining the applications.

115.1(2) Where, as a result of giving priority to the support of a dependant referred to in subsection 113(1), the court is unable to make an order for the support of any other dependant, or the court makes the order for the support of the other dependant in an amount that is less than it otherwise would have been, the court shall record its reasons for not making the order or for making the order in an amount that is less than it otherwise would have been.

115.1(3) Where, as a result of giving priority to the support of a dependant referred to in subsection 113(1), an order for the support of any other dependant is not made, or the amount of the order for the support of the other dependant is less than it otherwise would have been, any subsequent reduction or termination of the support for the dependant referred to in subsection 113(1) constitutes a material change in the circumstances of the other dependant for the purposes of an application, in respect of support for the other dependant, under section 115 or subsection 118(1), as the case may be.

4 Subsection 116(4.1) of the Act is repealed and the following is substituted:

116(4.1) A court making an interim order for the support of a dependant who is a child or a child at or over the age of majority shall do so, to the extent possible, in accordance with the spirit and intent of paragraph 113(2)(b), subsections 115(1.1) to (1.6) and the regulations respecting orders for child support, as the case may be.

5 Section 118 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out "who is not a child" and substituting "who is neither a child nor a child at or over the age of majority";

(b) in subsection (2)

(i) by striking out the portion preceding paragraph (a) and substituting the following:

118(2) Where an order for child support or an order for the support of a child at or over the age of majority has been made and the court is satisfied that a change of circumstances as provided for in the regulations respecting orders for child support has occurred since the making of the order under subsection 115(1) or since the making of the last order under this section, if any, in respect of the support of a child or a child at or over the age of majority, the court may, upon the application of any person named in the order or referred to in subsection 115(3) and subject to paragraph 113(2)(b), subsections 115(1.1) to (1.6) and the regulations respecting orders for child support, as the case may be,

(ii) by repealing paragraph (c) and substituting the following:

(c) make any order for child support or any order for the support of a child at or over the age of majority that the court could make on an application under section 115 for the support of a dependant who is a child or a child at or over the age of majority.

6 Paragraph 143(nn.1) of the Act is amended

(a) in the portion preceding subparagraph (i) by striking out "of orders for child support" and substituting "of an order for child support or an order for the support of a child at or over the age of majority";

(b) in subparagraph (i) by striking out "order for child support" and substituting "order for child support or an order for the support of a child at or over the age of majority";

(c) in subparagraph (ii) by striking out "order for child support" and substituting "order for child support or an order for the support of a child at or over the age of majority".

7(1) Section 4 of New Brunswick Regulation 98-27 under the Family Services Act is amended

(a) in subsection (1) by striking out "orders for child support" and substituting "an order for child support or an order for the support of a child at or over the age of majority";

(b) in subsection (2)

(i) by striking out "subsection 3(2),";

(ii) by striking out "paragraph 13(d),";

(c) in subsection (4) by striking out "in an application for child support" and substituting "in an application for child support or an application for the support of a child at or over the age of majority";

(d) in subsection (5) by striking out "for an order for child support" wherever it appears and substituting "for an order for child support, for an order for the support of a child at or over the age of majority".

7(2) Section 6 of the Regulation is amended by striking out "for the purposes of making orders for child support" and substituting "for the purpose of making an order for child support or an order for the support of a child at or over the age of majority".

8 Rule 73 of the Rules of Court of New Brunswick, New Brunswick Regulation 82-73 under the Judicature Act and the Provincial Offences Procedure Act, is amended

(a) in subrule 73.11

(i) in paragraph (1) in the portion preceding clause (a) by striking out "child support" and substituting "child support, support for a child at or over the age of majority";

(ii) in paragraph (1.1) in the portion preceding clause (a) by striking out "child" and substituting "child or a child at or over the age of majority";

(iii) in subclause (2)(b)(ii) by striking out "child support" and substituting "child support or the support of a child at or over the age of majority";

(b) in subrule 73.17.3

(i) by striking out the heading "Motion to Vary, Discharge or Suspend Child Support Order" and substituting "Motion to Vary, Discharge or Suspend Child Support Order or Order for the Support of a Child at or over the Age of Majority";

(ii) in paragraph (1) by striking out "a child support order" and substituting "a child support order or an order for the support of a child at or over the age of majority";

(iii) in clause (2)(a) by striking out "of the children" and substituting "of the children, including children at or over the age of majority,";

(iv) in clause (6)(c) by striking out "of the child support order" and substituting "of the child support order or the order for the support of a child at or over the age of majority";

(c) by repealing paragraph 73.17.4(1) and substituting the following:

(1) Notwithstanding Rule 73.17.3, where the parties consent to the variation, discharge or suspension of a child support order or an order for the support of a child at or over the age of majority, they shall file with the administrator, in the judicial district in which one of the parties ordinarily resides, a consent order signed by both parties and accompanied by a copy of the support order and any income information required by the regulations respecting orders for child support under the Family Services Act.