EXPLANATORY NOTE
This Explanatory Note was written as a reader’s aid to Bill 133 and does not form part of the law. Bill 133 has been enacted as Chapter 11 of the Statutes of Ontario, 2009.
The Bill makes amendments in respect of various family law matters.
Change of Name Act
The Act is consequentially amended to account for amendments made by the Bill to the Children’s Law Reform Act, permitting a court to change a child’s surname where a declaration of maternity or paternity is made. Specifically, section 5 of the Change of Name Act is amended to add a requirement that, where the court has made such an order changing a child’s surname, an application under the Act to further change the child’s surname requires the consent of the person declared by the court to be the mother or father of the child. As with the other consents required to be obtained by the Act in the circumstances, the requirement may be waived by a court on application.
The Bill also makes amendments to the French version of certain provisions in the Act in order to harmonize the English and French texts.
Child and Family Services Act
The Bill makes consequential amendments to section 57.1 of the Child and Family Services Act to update the provisions permitting the court to, while making a custody order, make a restraining order without requiring a separate application, and deeming the restraining order to be a restraining order made under the Children’s Law Reform Act.
Children’s Law Reform Act
The Children’s Law Reform Act is amended by adding section 6.1, which permits a court to change a child’s surname in accordance with the Vital Statistics Act where an order has been made under the Act declaring someone to be the mother or father of the child.
The Act is amended to add new requirements for certain applications for custody of or access to a child. Section 21 of the Act is amended to add a requirement to file, with any application for custody or access, an affidavit of the person making the application, in the form prescribed by the rules of court, containing the person’s proposed plan for the child’s care and upbringing, information respecting the person’s current or previous involvement in any family or criminal proceedings, and any other information known to the person that is relevant to the court’s decision in the application.
In addition, three new provisions are added to create new requirements in cases where a person who is not the parent of a child applies for custody of the child.
Firstly, the new section 21.1 provides that the person applying for custody must file with the court the results of a recent police records check. The section gives authority to the Lieutenant Governor in Council to prescribe by regulation the scope of the required police records check.
Secondly, under the new section 21.2, the person must send a request to one or more children’s aid societies or other bodies or persons prescribed by the regulations for a report as to whether there are any records respecting the person and, if there are records and the records indicate that one or more files relating to the person have been opened, the opening and closing dates of those files. A society or other body or person that receives such a request is required, in the specified time, to complete and provide the report to the court and to the requesting party. Twenty days after the court has received all of the reports that were requested, the clerk of the court provides a copy of each report to the other parties and to counsel, if any, representing the child, and files the report in the court file. A court may, on motion by the requesting party, extend the 20-day time period, or may order that all or part of a report be sealed in the court file and not provided to the other parties if it determines that some or all of the information contained in the report is not relevant to the application or if the requesting party withdraws the application. In addition to creating authority to specify societies or other bodies or persons to which a request must be made, regulation-making authority is given to the Lieutenant Governor in Council to prescribe the manner and scope of the search to be undertaken upon receipt of a request for a report, and to specify any classes of files that should not be included in the report.
Finally, under the new section 21.3, where a person who is not the parent of a child applies for custody of the child, the clerk of the court is required to provide to the court and to parties information in writing respecting any current or previous family proceedings involving the child or any person who is a party to the application and who is not a parent of the child. In addition, the court may require the clerk of the court to provide to it and to the parties information in writing respecting any current or previous criminal proceedings involving any person who is a party to the application who is not a parent of the child. Regulation-making authority is given to the Attorney General to prescribe the scope of the search to be made by the clerk of the court, as well as the scope, content and form of the written information to be provided. As well, the Attorney General may prescribe a process for removing information that is not relevant from the written information.
Information or documents obtained as a result of the new requirements that are added by the new sections 21.1 to 21.3 are admissible in evidence, if the court considers them to be relevant, and the evidence shall be considered by the court in making its decision respecting custody, subject to the limitation currently in the Act on the extent to which a person’s past conduct can be considered when making a custody or access order.
Subsection 28 (1) of the Act is amended to specify some of the orders that the court may make when making an order under Part III of the Act for custody of or access to a child.
Section 35 of the Act, dealing with the making of restraining orders, is re-enacted. The re-enacted section sets out the test for making a restraining order and specifies against whom an order may be made. In addition, the section specifies provisions that may form part of the restraining order.
The Bill adds section 70, which requires the court to consider, in every proceeding that includes an application under Part III of the Act, whether to make an order limiting access to the court file to specified persons, or to prohibit the publication or the making public of information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. The new section specifies factors that the court must consider in determining whether to make such an order. In addition to the court’s duty to consider whether to make such an order, any interested person may apply to the court for the order. The order may be varied or discharged.
Finally, the Bill repeals references throughout the Act to the local registrar of the court.
Courts of Justice Act
The Bill repeals provisions in the Courts of Justice Act that are consequential to the Domestic Violence Protection Act, 2000.
Domestic Violence Protection Act, 2000
The Domestic Violence Protection Act, 2000 is repealed.
Family Law Act
The Bill amends the definition of “net family property” in the Act to specify that debts and other liabilities to be excluded from the calculation of the value of property owned by a spouse on the valuation date include any contingent tax liabilities in respect of the property. The definition is also amended to exclude from the calculation of the value of property owned by a spouse on the date of marriage those debts that are directly related to the acquisition or significant improvement of a matrimonial home.
An amendment to the definition of “property” in subsection 4 (1) of the Family Law Act concerns the valuation of a spouse’s rights under a pension plan for the purposes of the calculation of net family property under Part I of the Act. It specifies that a spouse’s property includes the imputed value, for family law purposes, of his or her interest in a pension plan.
Subsection 4 (2) of the Act is amended to exclude from the calculation of net family property under Part I of the Act the value of a spouse’s interest in the Canada Pension Plan.
The Act is amended to include in the list of items set out in subsection 6 (6) that in the applicable circumstances are to be credited, less any related contingent tax liability, against an equalization payment that is owed to a surviving spouse, property or a portion of a property to which the surviving spouse becomes entitled by right of survivorship or otherwise on the death of the deceased spouse.
Under a new section 10.1 of the Act, the imputed value, for family law purposes, of a spouse’s interest in a pension plan is to be determined in accordance with the Pension Benefits Act. The section also restricts the court’s power to make orders requiring the division of the interest in a pension plan in connection with the equalization of the spouses’ net family property. An order may provide for the immediate transfer of a lump sum out of the pension plan but, with one exception, cannot provide for any other division of the spouse’s interest in the plan. The exception applies if the spouse has begun to receive a pension under the plan on or before the valuation date. In that case, an order may only provide for the division of the pension payments. Additional restrictions that apply to the division of the interest in the pension plan are also described.
The Bill adds sections 13.1, 25.1 and 47.1, which create authority in each of Parts I, II and III of the Act for a court, when making an order under one of those Parts, to also make an interim order limiting or prohibiting direct or indirect contact or communication between parties, if the court determines that such an order is necessary to ensure that an application under the relevant Part is dealt with justly.
The Bill adds section 39.1, which provides that child support amounts payable under a court order or a domestic contract that is filed with the court may be recalculated by a child support service to reflect updated income information. The Bill also adds regulation-making authority to the Act respecting the recalculation of child support amounts, including authority to establish the child support service and to govern recalculation procedures and decisions.
Section 46 of the Act, dealing with the making of restraining orders, is re-enacted. The re-enacted section sets out the test for making a restraining order and specifies against whom an order may be made. In addition, the section specifies provisions that may form part of the restraining order.
A new section 56.1 of the Act addresses domestic contracts that provide for the division of a party’s interest in a pension plan following the parties’ separation. A new section 59.4.1 of the Act correspondingly addresses family arbitration awards that include similar provisions. Restrictions are established that correspond to those set out in section 10.1 for court orders.
The Bill amends the Act to add authority permitting the Lieutenant Governor in Council to make regulations respecting the production of information, including income information, relating to child support obligations in domestic contracts or in written agreements that are not domestic contracts, and providing for enforcement procedures when that information is not provided. The Act already contains authority for such regulations to be made in respect of child support obligations in court orders.
Finally, the Bill makes amendments to the French version of certain provisions in the Act in order to harmonize the English and French texts.
Pension Benefits Act
New sections of the Pension Benefits Act provide for the valuation, for family law purposes, of the benefits and entitlements of members and former members of pension plans and for the division of their benefits and entitlements for certain family law purposes.
A new section 67.1 of the Act sets out definitions that apply throughout these new sections. Key definitions include “family law valuation date” and “spouse”.
A new section 67.2 of the Act governs the determination of the imputed value, for family law purposes, of the pension benefits, deferred pension or pension to which a member or former member of a pension plan or his or her spouse is entitled under the plan. The new section 67.2 also enables members and former members, and in specified circumstances their spouses, to apply to the administrator of the pension plan for a statement of the imputed value, for family law purposes, of the pension benefits, deferred pension or pension, as the case may be.
A new section 67.3 of the Act enables an eligible spouse to apply to the administrator of the pension plan for the transfer of a lump sum from the plan in accordance with a court order under Part I (Family Property) of the Family Law Act, a family arbitration award or a domestic contract. Certain restrictions are set out.
A new section 67.4 of the Act enables an eligible spouse to apply to the administrator of the pension plan for the division of a former member’s pension in accordance with a court order under Part I of the Family Law Act, a family arbitration award or a domestic contract. Certain restrictions are set out. The section also sets out provisions permitting an eligible spouse who is entitled to a joint and survivor pension to waive the entitlement after payment of the first instalment of the former member’s pension is due, and specifies the rules that apply if the eligible spouse is entitled to a joint and survivor pension in respect of the former member in addition to being entitled to payment of a share of the former member’s pension.
Under a new section 67.5 of the Act, certain court orders made under Part I of the Family Law Act, family arbitration awards and domestic contracts are not effective to the extent that they purport to divide the pension benefits, deferred pension or pension of a member or former member otherwise than as permitted by section 67.3 or 67.4. A new section 67.6 sets out transitional rules that continue to apply to certain orders, family arbitration awards and domestic contracts.
Complementary technical amendments are made to several other provisions of the Act.
Vital Statistics Act
The Vital Statistics Act is consequentially amended to account for amendments made by the Bill to the Children’s Law Reform Act, permitting a court to change a child’s surname where a declaration of maternity or paternity is made. Specifically, section 9 is amended to add a requirement that, where the court has made such an order changing a child’s surname, the Registrar General shall amend the particulars of the child’s surname shown on the child’s birth registration in accordance with the order. In addition, section 14 is amended to add a prohibition on further changing the child’s surname by way of an election under the Act.