Qp Date

Interjurisdictional Support Orders Act

[SBC 2002] CHAPTER 29

Assented to May 9, 2002

Contents
Part 1 — Definitions and Court Designation
1Definitions
2Designation of court
Part 2 — Claims if no Support Order Exists
3Definitions
4Application of Part 2
 Division 1 — Claimant in British Columbia
5Preparing support application — no provisional order required
6Providing support application
7Preparing support application — provisional order required
 Division 2 — Claimant outside British Columbia
8Application of Division 2
9Dealing with a support application
10Support application before British Columbia court
11Parentage
12Application of laws for child's and claimant's support
13Powers of British Columbia court respecting support orders
14Order if respondent fails to comply with notice
15Sending support order to reciprocating jurisdiction
Part 3 — Registration of Orders Made Outside British Columbia
16Application
17Receipt of an order in British Columbia
18Registration of extra-provincial or foreign order
19Foreign orders after registration
20Effect of setting aside registration of foreign orders
Part 4 — Variation of a Support Order
21Definitions
22Restrictions
23Variation of registered orders
24Variation in a reciprocating jurisdiction
 Division 1 — Variation if Applicant in British Columbia
25Preparing support variation application — no provisional order required
26Providing support variation application
27Preparing support variation application — provisional order required
 Division 2 — Variation if Applicant outside British Columbia
28Application of Division 2
29Dealing with a support variation application
30Support variation application before British Columbia court
31Application of laws for child's and party's support
32Powers of British Columbia court respecting variation orders
33Order if respondent fails to comply with notice
34Sending variation order to reciprocating jurisdiction
 Division 3 — Variation of Orders if Jurisdiction of British Columbia Court Accepted
35British Columbia court varying orders
Part 5 — Appeals
36Appeals
Part 6 — General Matters
37Designated authority
38Translation of order or document
39Order or application not expressed in Canadian currency
40Right of assignment
41Terminology
42Documents and law of reciprocating jurisdiction
43Other remedies
44Regulations
45Transitional
45.1Transition – sections 10, 12, 30 and 31
46–55Spent
56Commencement

Part 1 — Definitions and Court Designation

Definitions

1  (1) In this Act:

"British Columbia court" means a court designated under section 2;

"certified" means, when used to refer to a copy of an order or reasons, certified by the court or administrative body that made the order or gave the reasons;

"child" has the same meaning as in Part 7 of the Family Law Act;

"designated authority" means a person appointed under section 37 (1) and includes a person to whom a power or duty is delegated under section 37 (2);

"director" means the Director of Maintenance Enforcement designated under section 2 (1) of the Family Maintenance Enforcement Act;

"former enactment" means Part 8 of the Family Relations Act, R.S.B.C. 1996, c. 128, which Part is repealed by this Act;

"provisional order" means

(a) a support order of a court in British Columbia that has no effect until confirmed by a court in a reciprocating jurisdiction, or

(b) a similar order made in a reciprocating jurisdiction and received for confirmation in British Columbia;

"provisional variation order" means

(a) a variation of a support order of a court in British Columbia that has no effect until confirmed by a court in a reciprocating jurisdiction, or

(b) a similar order made in a reciprocating jurisdiction and received for confirmation in British Columbia;

"reciprocating jurisdiction" means a jurisdiction declared in the regulations made under section 44 (3) to be a reciprocating jurisdiction;

"support" includes support, maintenance or alimony payable for a person or for the child of a person or for both;

"support order" means an order or interim order, made by a court or by an administrative body, that requires the payment of support, and includes

(a) the provisions of a written agreement requiring the payment of support if those provisions are enforceable in the jurisdiction in which the agreement was made as if they were contained in an order of a court or administrative body of that jurisdiction, and

(b) a statement of recalculation of the payment of support for a child or a document similar in nature (the "recalculation") made by an administrative body, if the recalculation is enforceable in the jurisdiction in which the recalculation was made as if it were an order of, or were contained in an order of, a court of that jurisdiction.

(2) For the purposes of this Act, the definition of a word or expression in the Family Law Act applies to that word or expression when used in this Act unless

(a) the word or expression is defined in this Act, or

(b) there is a contrary intention reflected in this Act.

(3) A reference in this Act to a variation of an order includes a rescission of an order.

Designation of court

2  The minister may designate one or more courts in British Columbia for the purpose of proceedings under this Act.

Part 2 — Claims if no Support Order Exists

Definitions

3  In this Part:

"claimant" means a person who applies under this Act for support;

"respondent" means the person from whom support is sought.

Application of Part 2

4  This Part applies to a claim for support for

(a) a claimant, only if there is no support order in effect requiring the respondent to pay support for the claimant, and

(b) a child, only if there is no support order in effect requiring the respondent to pay support for the child.

Division 1 — Claimant in British Columbia

Preparing support application — no provisional order required

5  (1) If a claimant resides in British Columbia and believes that the respondent habitually resides in a reciprocating jurisdiction that does not require a provisional order, the claimant may start a process in British Columbia that could result in a support order being made in the reciprocating jurisdiction.

(2) To start the process referred to in subsection (1), the claimant must complete a support application that includes the following:

(a) the name and address for service of the claimant;

(b) a copy of the specific statutory or other legal authority on which the claimant's application for support is based, unless the claimant is relying on the law of the jurisdiction in which the respondent habitually resides;

(c) the amount and nature of support claimed;

(d) a sworn document described in subsection (3);

(e) any other information or documents required by the regulations.

(3) The sworn document must include the following:

(a) the respondent's name and any information known to the claimant that can be used to locate or identify the respondent;

(b) the financial circumstances of the respondent, to the extent known by the claimant;

(c) the name of each person for whom support is claimed and the date of birth of any child for whom support is claimed;

(d) the evidence in support of the claimant's application that is relevant to establishing entitlement to or the amount of support, including,

(i)   if support is claimed for a child, details of the parentage of the child and information about the child's financial and other circumstances, and

(ii)   if support is claimed for the claimant, information about the claimant's financial and other circumstances and the claimant's relationship with the respondent.

(4) The claimant is not required to notify the respondent that a process has been started under this section.

Providing support application

6  (1) After completing the support application described in section 5, the claimant must submit the support application to the designated authority in British Columbia.

(2) On receiving a support application, the designated authority must as soon as practicable

(a) review the support application to ensure that it is complete, and

(b) send a copy of the completed support application to the appropriate authority in the reciprocating jurisdiction in which the claimant believes the respondent habitually resides.

(3) On receiving a request for further information or documents from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to section 10 (2) (a), the claimant must provide the further information or documents within the time referred to in the request.

(4) On receiving a certified copy of an order and reasons, if any, from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to section 15, the designated authority must send a copy of the order and reasons, if any, to the claimant.

(5) An order referred to in subsection (4) has, after filing in a court in British Columbia, the same effect as an order of the court with which it is filed.

(6) If an order referred to in subsection (4) is filed with a court in British Columbia, the court has the same control and jurisdiction over the order as if it were an order of that court.

Preparing support application — provisional order required

7  (1) If a claimant

(a) resides in British Columbia, and

(b) believes that the respondent habitually resides in a reciprocating jurisdiction that requires a provisional order,

a court in British Columbia may, on application by the claimant and without notice to and in the absence of the respondent, make a provisional order taking into account the legal authority on which the claimant's application for support is based.

(2) The application referred to in subsection (1) must include the information described in section 5 (2) and (3).

(3) Evidence in proceedings under subsection (1) or (5) may be given orally, in writing or as the court may allow.

(4) If a provisional order is made under this section, the designated authority must send to the reciprocating jurisdiction

(a) 3 certified copies of the provisional order, and

(b) a support application referred to in subsection (2).

(5) If, during a proceeding for confirmation of a provisional order, a court in a reciprocating jurisdiction sends a matter back for further evidence to the court in British Columbia that made the provisional order, the court in British Columbia must, after giving notice to the claimant, receive further evidence.

(6) If evidence is received under subsection (5), the court in British Columbia must send to the court in the reciprocating jurisdiction

(a) a certified copy of the evidence, and

(b) if the court in British Columbia modified its provisional order, 3 certified copies of the order, as modified.

(7) If a provisional order made under this section comes before a court in a reciprocating jurisdiction and confirmation is denied in respect of one or more persons for whom support is sought, the court in British Columbia that made the provisional order may, on application within 6 months after the denial of confirmation, re-open the matter, receive further evidence and make a new provisional order for a person in respect of whom confirmation was denied.

Division 2 — Claimant outside British Columbia

Application of Division 2

8  (1) In this Division, "support application" means the orders and documents described in subsection (2) of this section.

(2) This Division applies in respect of

(a) a document from a reciprocating jurisdiction corresponding to a support application referred to in section 5 (2), and

(b) a provisional order referred to in paragraph (b) of the definition of "provisional order".

Dealing with a support application

9  (1) Subject to subsections (2) and (3), if the designated authority receives a support application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent named in the support application habitually resides in British Columbia, the designated authority must send the application to the British Columbia court.

(2) If the designated authority believes that the respondent habitually resides in another reciprocating jurisdiction in Canada, the designated authority must

(a) send the support application to the appropriate authority in that other reciprocating jurisdiction, and

(b) notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.

(3) If the designated authority

(a) is unable to determine where the respondent habitually resides, or

(b) believes that the respondent habitually resides in a jurisdiction outside Canada,

the designated authority must return the support application to the appropriate authority in the originating reciprocating jurisdiction with any information that the designated authority has respecting the location and circumstances of the respondent.

(4) The British Columbia court receiving a support application under subsection (1) must serve on the respondent

(a) a copy of the support application, and

(b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the information or documents required by the regulations.

(5) If the British Columbia court is unable to serve the respondent under subsection (4), the designated authority must send the support application back to the appropriate authority in the originating reciprocating jurisdiction with any information that the designated authority has respecting the location and circumstances of the respondent.

Support application before British Columbia court

10  (1) If a support application comes before a British Columbia court, that court must consider

(a) the evidence provided to the British Columbia court, and

(b) the documents received from the reciprocating jurisdiction.

(2) If the British Columbia court needs further information or documents from the claimant to consider making a support order, that court

(a) must direct the designated authority to contact the claimant or the appropriate authority in the reciprocating jurisdiction to request the information or documents,

(b) must adjourn the hearing, and

(c) may make an interim support order.

(3) If the British Columbia court does not receive the information or documents requested under subsection (2) within 12 months after the request is made, it may dismiss the support application and terminate an interim support order made under subsection (2) (c).

(4) The dismissal of a support application under subsection (3) does not preclude the claimant from submitting a new support application.

Parentage

11  (1) If the parentage of a child is in issue and has not previously been determined, the British Columbia court may decide that issue.

(2) A determination of parentage under this section has effect only for the purposes of proceedings related to support for the child under this Act.

(3) Division 2 of Part 3 of the Family Law Act applies to the determination of parentage under this section.

Application of laws for child's and claimant's support

12  (1) In determining entitlement to support for a child, the British Columbia court must,

(a) subject to paragraph (b), apply the law of British Columbia, and

(b) if there is no entitlement to support for the child under the law of British Columbia, apply the law of the jurisdiction in which the child habitually resides.

(2) In determining the amount of support to be paid for a child, the British Columbia court must apply the law of British Columbia.

(3) In determining the entitlement to and amount of support for a claimant, the British Columbia court must,

(a) subject to paragraph (b), apply the law of British Columbia, and

(b) if the claimant is not entitled to support under the law of British Columbia, apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence.

Powers of British Columbia court respecting support orders

13  (1) After considering the evidence and documents with respect to a support application, a British Columbia court may do the following in respect of a claimant, a child or both:

(a) make a support order;

(b) make an interim support order and adjourn the hearing to a specified date;

(c) adjourn the hearing to a specified date without making an interim support order;

(d) refuse to make a support order.

(2) An order under this section may also provide for one or more of the following:

(a) payment periodically, annually or otherwise, and either for an indefinite or limited period or until the happening of a specified event;

(b) payment of a lump sum directly or in trust on terms provided;

(c) charging of property with payment under the order;

(d) payment of support in respect of any period before the order is made;

(e) payment for expenses arising from and incidental to

(i)   the prenatal care of the mother or child, or

(ii)   the birth of a child.

(3) A British Columbia court that refuses to make a support order must record the reasons for its refusal.

(4) If an order made under this section does not specify the law that was applied to determine entitlement to child support, it is presumed that the British Columbia court applied the law of British Columbia for that purpose.

Order if respondent fails to comply with notice

14  (1) If the respondent does not appear as required in the notice served on the respondent under section 9 (4) (b), or does not provide the information or documents referred to in that notice, the British Columbia court may make an order under section 13 in the absence of the respondent or in the absence of the information or documents, and in making the order may draw any inference it considers appropriate.

(2) If a respondent does not appear as required, the British Columbia court must send a copy of the order to the respondent.

Sending support order to reciprocating jurisdiction

15  When the designated authority receives an order made under section 13 or 14, the designated authority must as soon as practicable send a certified copy of it with reasons, if any, to the appropriate authority in the reciprocating jurisdiction in which the claimant's support application originated.

Part 3 — Registration of Orders Made Outside British Columbia

Application

16  (1) In this Part:

"extra-provincial order" means

(a) a support order that is made in a reciprocating jurisdiction in Canada, or

(b) a variation of a support order if the variation is made in a reciprocating jurisdiction in Canada,

but does not include a provisional order or a provisional variation order;

"foreign order" means

(a) a support order that is made in a reciprocating jurisdiction outside Canada, or

(b) a variation of a support order if the variation is made in a reciprocating jurisdiction outside Canada,

but does not include a provisional order or a provisional variation order.

(2) This Part applies only with respect to extra-provincial orders and foreign orders.

Receipt of an order in British Columbia

17  (1) For an order to which this Part applies to be registered, a certified copy of the order must be sent to the designated authority.

(2) On receiving a certified copy of an order under subsection (1), the designated authority must send the certified copy of the order to the British Columbia court.

Registration of extra-provincial or foreign order

18  (1) On receiving a certified copy of an order under section 17 (2), the British Columbia court must register it as an order of that court.

(2) On an order being registered under subsection (1), the order, from the date it is registered, has the same effect as a support order made by a court in British Columbia.

(3) Subject to section 19, an order registered under subsection (1) may be enforced, with respect both to arrears accrued before registration and obligations accruing after registration, in the same manner as a support order made by a court in British Columbia, or may be varied under this Act.

(4) Subject to section 19, an order registered under subsection (1) may be filed with the director.

(4.1) Unless otherwise stated in the order, if an order registered under subsection (1) creates an obligation to pay support, the duration of that obligation is governed by the law of the jurisdiction under which law the order was made.

(4.2) Despite subsection (4.1), if the director is unable to determine the duration of the obligation to pay support based on information received from the person seeking to have the order enforced in British Columbia or from the reciprocating jurisdiction, the director may apply British Columbia law to determine the duration of the obligation to pay support.

(5) This section applies to a registered order whether it is made before, on or after the date this section comes into force.

Foreign orders after registration

19  (1) After registration of a foreign order under section 18, the British Columbia court must send notice of the registration to

(a) the party required to pay support under the order, whether or not that party habitually resides in British Columbia, and

(b) every other party to the order who resides in British Columbia.

(2) A party to the foreign order may apply to the British Columbia court to set aside the registration

(a) within 30 days after receiving notice of the registration, and

(b) on giving notice of the application in accordance with the regulations.

(3) On an application under subsection (2), the British Columbia court may

(a) confirm the registration, or

(b) set aside the registration if the British Columbia court determines that

(i)   a party to the foreign order did not have proper notice or a reasonable opportunity to be heard in the proceeding in which the foreign order was made,

(ii)   the foreign order is contrary to the public policy of British Columbia, or

(iii)   the court or administrative body that made the foreign order did not have jurisdiction to make the order.

(4) For the purpose of subsection (3) (b) (iii), the British Columbia court must consider the foreign court or administrative body to have had jurisdiction if the British Columbia court determines that

(a) both parties to the foreign order habitually resided in the reciprocating jurisdiction outside Canada, or

(b) a party did not habitually reside in the reciprocating jurisdiction outside Canada but was, under British Columbia's conflict of law rules, subject to the jurisdiction of the foreign court or administrative body that made the foreign order.

(5) A British Columbia court that sets aside the registration under subsection (3) must record the reasons for its decision.

(6) The British Columbia court must give notice of its decision or order, and written reasons, if any, to the party that did not request the registration, and the designated authority.

Effect of setting aside registration of foreign orders

20  (1) If the registration of a foreign order is set aside under section 19, the foreign order must be dealt with under this Act as if it were a document corresponding to a support application received under section 9 (1) or a support variation application received under section 29 (1).

(2) If the foreign order does not contain the necessary information or documents required for a support application or a support variation application, the designated authority must request the necessary information and documents from the party who applied to register the order or the appropriate authority of the reciprocating jurisdiction that requested the registration.

(3) Until the court receives the required information and documents under subsection (2), no further steps may be taken under this Act.

Part 4 — Variation of a Support Order

Definitions

21  In this Part:

"applicant" means a party applying to vary a support order;

"respondent" means a party responding to a support variation application;

"support order" means a support order as defined in section 1 that is

(a) made in British Columbia, or

(b) made in a reciprocating jurisdiction

but does not include a provisional order or a provisional variation order.

Restrictions

22  Nothing in this Part

(a) authorizes a judge of the Provincial Court to vary a support order made in Canada by a federally appointed judge, or

(b) allows a support order originally made under the Divorce Act (Canada) to be varied except as authorized by a federal enactment.

Variation of registered orders

23  It is not necessary to re-register an order that is registered under Part 3 and subsequently varied under this Part.

Variation in a reciprocating jurisdiction

24  When a support order originally made or registered in British Columbia is varied in a reciprocating jurisdiction under provisions that correspond to Division 2 of this Part, it is varied in British Columbia.

Division 1 — Variation if Applicant in British Columbia

Preparing support variation application — no provisional order required

25  (1) If an applicant resides in British Columbia and believes that the respondent habitually resides in a reciprocating jurisdiction that does not require a provisional variation order, the applicant may start a process in British Columbia that could result in the variation of a support order being made in the reciprocating jurisdiction.

(2) To start the process referred to in subsection (1), the applicant must complete a support variation application that includes the following:

(a) the name and address for service of the applicant;

(b) a certified copy of the support order;

(c) a copy of the specific statutory or other legal authority on which the application for variation is based, unless the applicant is relying on the law of the jurisdiction in which the respondent habitually resides;

(d) the details of the variation applied for, which may include a termination of the support order;

(e) a sworn document described in subsection (3);

(f) any other information or documents required by the regulations.

(3) The sworn document must include the following:

(a) the respondent's name and any information known to the applicant that can be used to locate or identify the respondent;

(b) the financial circumstances of the respondent, to the extent known by the applicant, including whether the respondent is or was receiving social assistance;

(c) the name of each person, to the extent known by the applicant, for whom support is payable or who will be affected by the variation if granted;

(d) the evidence in support of the application, including

(i)   if the variation applied for would affect support for a child, information about the child's financial and other circumstances, and

(ii)   if support to the applicant or respondent is an issue, information about their relationship;

(e) prescribed information about the applicant's financial circumstances.

(4) The applicant is not required to notify the respondent that a process has been started under this section.

Providing support variation application

26  (1) After completing the support variation application described in section 25, the applicant must submit the support variation application to the designated authority in British Columbia.

(2) On receiving a support variation application, the designated authority must, as soon as practicable,

(a) review the support variation application to ensure that it is complete, and

(b) send a copy of the completed support variation application to the appropriate authority in the reciprocating jurisdiction in which the applicant believes the respondent habitually resides.

(3) On receiving a request for further information or documents from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to section 30 (2) (a), the applicant must provide the further information or documents within the time referred to in the request.

(4) On receiving a certified copy of an order and reasons, if any, from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to section 34, the designated authority must send a copy of the order and reasons, if any, to the applicant and the British Columbia court.

Preparing support variation application — provisional order required

27  (1) If the applicant

(a) resides in British Columbia, and

(b) believes that the respondent habitually resides in a reciprocating jurisdiction that requires a provisional variation order,

the British Columbia court may, on application by the applicant and without notice to and in the absence of the respondent, make a provisional variation order taking into account the legal authority on which the application for variation is based.

(2) The application referred to in subsection (1) must include the information described in section 25 (2) and (3).

(3) Evidence in proceedings under subsection (1) or (5) may be given orally, in writing or as the court may allow.

(4) If a provisional variation order is made under this section, the designated authority must send to the reciprocating jurisdiction

(a) 3 certified copies of the provisional variation order, and

(b) a support variation application referred to in section 25 (2).

(5) If, during a proceeding for confirmation of a provisional variation order, a court in a reciprocating jurisdiction sends a matter back for further evidence to the British Columbia court that made the provisional variation order, the British Columbia court must, after giving notice to the applicant, receive further evidence.

(6) If evidence is received under subsection (5), the British Columbia court must send to the court in the reciprocating jurisdiction

(a) a certified copy of the evidence, and

(b) if the British Columbia court modified its provisional variation order, 3 certified copies of the order, as modified.

(7) If a provisional variation order made under this section comes before a court in a reciprocating jurisdiction and confirmation is denied in respect of one or more persons, the British Columbia court that made the provisional variation order may, on application within 6 months after the denial of confirmation, re-open the matter, receive further evidence and make a new provisional variation order for a person in respect of whom confirmation was denied.

(8) Despite section 22 (a), a judge of the Provincial Court may make a provisional variation order that varies a support order made in Canada by a federally appointed judge.

Division 2 — Variation if Applicant outside British Columbia

Application of Division 2

28  (1) In this Division, "support variation application" means the orders and documents described in subsection (2) of this section.

(2) This Division applies in respect of

(a) a document from a reciprocating jurisdiction corresponding to a support variation application referred to in section 25 (2), and

(b) a provisional variation order referred to in paragraph (b) of the definition of "provisional variation order".

Dealing with a support variation application

29  (1) Subject to subsections (2) and (3), if the designated authority receives a support variation application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent named in the support variation application habitually resides in British Columbia, the designated authority must send the application to the British Columbia court.

(2) If the designated authority believes that the respondent habitually resides in another reciprocating jurisdiction in Canada, the designated authority must

(a) send the support variation application to the appropriate authority in that other reciprocating jurisdiction, and

(b) notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.

(3) If the designated authority

(a) is unable to determine where the respondent habitually resides, or

(b) believes that the respondent habitually resides in a jurisdiction outside Canada,

the designated authority must return the support variation application to the appropriate authority in the originating reciprocating jurisdiction with any information that the designated authority has respecting the location and circumstances of the respondent.

(4) The British Columbia court receiving a support variation application under subsection (1) must serve on the respondent

(a) a copy of the support variation application, and

(b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the information or documents required by the regulations.

(5) If the British Columbia court is unable to serve the respondent under subsection (4), the designated authority must send the documents back to the appropriate authority in the reciprocating jurisdiction that sent the support variation application with any information that the designated authority has respecting the location and circumstances of the respondent.

Support variation application before British Columbia court

30  (1) If a support variation application comes before a British Columbia court, that court must consider

(a) the evidence provided to the British Columbia court, and

(b) the documents received from the reciprocating jurisdiction.

(2) If the British Columbia court needs further information or documents from the applicant to consider making a support variation order, that court

(a) must direct the designated authority to contact the applicant or the appropriate authority in the reciprocating jurisdiction to request the information and documents,

(b) must adjourn the hearing, and

(c) may make an interim support variation order.

(3) If the British Columbia court does not receive the information or documents requested under subsection (2) within 12 months after the request is made, it may dismiss the support variation application and terminate an interim support variation order made under subsection (2) (c).

(4) The dismissal of the support variation application under subsection (3) does not preclude the applicant from submitting a new support variation application.

Application of laws for child's and party's support

31  (1) In determining entitlement to receive or to continue to receive support for a child, the British Columbia court must

(a) subject to paragraph (b), apply the law of British Columbia, and

(b) if there is no entitlement to support for the child under the law of British Columbia, apply the law of the jurisdiction in which the child habitually resides.

(2) In determining the amount of support to be paid for a child, the British Columbia court must apply the law of British Columbia.

(3) In determining a party's entitlement to receive or continue to receive support other than child support, and the amount of support, the British Columbia court must

(a) subject to paragraph (b), apply the law of British Columbia, and

(b) if the party is not entitled to support under paragraph (a), apply

(i)   the law of the jurisdiction in which the party habitually resides, or

(ii)   if the party is not entitled to support under subparagraph (i), the law of the jurisdiction in which the parties last maintained a common habitual residence.

Powers of British Columbia court respecting variation orders

32  (1) After considering the evidence and documents with respect to a support variation application, a British Columbia court may do the following in respect of a party, a child or both:

(a) make a support variation order;

(b) make an interim support variation order and adjourn the hearing to a specified date;

(c) adjourn the hearing to a specified date without making an interim support variation order;

(d) refuse to make a support variation order.

(2) An order under this section may also provide for one or more of the following:

(a) payment periodically, annually or otherwise, and either for an indefinite or limited period or until the happening of a specified event;

(b) payment of a lump sum directly or in trust on terms provided;

(c) charging of property with payment under the order;

(d) payment of support in respect of any period before the order is made;

(e) payment for expenses arising from and incidental to

(i)   the prenatal care of the mother or child, or

(ii)   the birth of a child.

(3) A British Columbia court that refuses to make a support variation order must record the reasons for its refusal.

Order if respondent fails to comply with notice

33  (1) If the respondent does not appear as required in the notice served on the respondent under section 29 (4) (b), or does not provide the information or documents referred to in that notice, the British Columbia court may make an order under section 32 in the absence of the respondent or in the absence of the information or documents, and in making the order may draw any inference it considers appropriate.

(2) If a respondent does not appear as required, the British Columbia court must send a copy of the order to the respondent.

Sending variation order to reciprocating jurisdiction

34  When the designated authority receives an order made under section 32 or 33, the designated authority must as soon as practicable send a certified copy of it with reasons, if any, to

(a) the appropriate authority in the reciprocating jurisdiction in which the applicant resides, and

(b) if the support order was originally made in another reciprocating jurisdiction, the appropriate authority in that jurisdiction.

Division 3 — Variation of Orders if Jurisdiction of British Columbia Court Accepted

British Columbia court varying orders

35  (1) The British Columbia court may, after taking into account any right of a government or agency of a government under section 40, vary a support order made or registered in British Columbia under this Act or under the former enactment if

(a) both the applicant and respondent accept the British Columbia court's jurisdiction, or

(b) [Repealed 2012-11-26(b).]

(c) the respondent habitually resides in British Columbia.

(2) The Family Law Act applies for the purposes of varying a support order under the circumstances referred to in subsection (1), as if the order being varied were an order respecting child support or spousal support under that Act.

Part 5 — Appeals

Appeals

36  (1) Subject to subsections (2) and (5) to (7), a party to a proceeding under this Act or the designated authority may appeal any ruling, decision or order of

(a) the Provincial Court, made under this Act to the Supreme Court, and

(b) the Supreme Court, made under this Act to the Court of Appeal, in accordance with the Court of Appeal Act.

(2) Subsection (1) does not apply to an interim order of the Provincial Court under this Act.

(3) An appeal under subsection (1) (a) may be brought by

(a) filing a notice of appeal in a registry of the Supreme Court,

(b) serving a copy of the notice of appeal on the parties to the proceeding in which the order of the Provincial Court was made, unless a judge of the Supreme Court orders otherwise, and

(c) filing a copy of the notice of appeal in the registry of the Provincial Court at the location where the order was made.

(4) The Supreme Court Family Rules apply to an appeal under subsection (1) (a) to the extent that they are consistent with this section.

(5) Despite section 14 of the Court of Appeal Act, an appeal must be commenced within 90 days after the date the ruling, decision or order of the British Columbia court is entered as a judgment of the court.

(6) Despite subsection (5), the court to which an appeal is made under this section may extend the appeal period before or after the appeal period has expired.

(7) A respondent in an appeal under this section may appeal a ruling, decision or order in the same proceeding within 30 days after the receipt of the notice of appeal.

(8) An order under appeal remains in force until the determination of the appeal, unless otherwise ordered by the court that made the order.

(9) The designated authority must notify the appropriate authority in the reciprocating jurisdiction of a court's decision on an appeal under this section.

(10) If an appeal under this section is commenced in the Supreme Court, the Supreme Court may do one or more of the following:

(a) confirm the order of the Provincial Court;

(b) set aside the order of the Provincial Court;

(c) make any order that the Provincial Court could have made;

(d) direct the Provincial Court to conduct a new hearing.

Part 6 — General Matters

Designated authority

37  (1) The minister may appoint one or more persons to act as the designated authority in British Columbia for the purposes of this Act.

(2) A person appointed under subsection (1) may, in writing, delegate any power or duty under this Act to any other person or persons.

Translation of order or document

38  (1) If an order or other document is to be sent to a reciprocating jurisdiction that requires the order or document to be translated into a language other than English, the order or document must be accompanied by a translation into the other language that is certified by the translator as being an accurate translation.

(2) An order or other document to which this Act applies that is

(a) received by the designated authority or a British Columbia court, and

(b) written in a language other than English

must be accompanied by a translation into English that is certified by the translator as being an accurate translation.

Order or application not expressed in Canadian currency

39  (1) In this section:

"foreign support amount" means the amount of support referred to in a foreign support order;

"foreign support order" means an order or other document made in a reciprocating jurisdiction that refers to an amount of support that is not expressed in Canadian currency.

(2) If a foreign support order is received by a designated authority or a British Columbia court,

(a) the designated authority must convert the foreign support amount into Canadian currency in accordance with the regulations, and

(b) after that, the director or, if the foreign support order is not filed with the director, the designated authority, may, from time to time, revise the conversion into Canadian currency of the foreign support amount to reflect current conversion rates.

Right of assignment

40  Any government or agency of a government that is providing or has provided social assistance to a person has the same rights as that person to commence or participate in proceedings under this Act for the purpose of

(a) obtaining support or a variation of support,

(b) responding to an application for a variation of support payments or arrears under a support order,

(c) responding to an application to suspend enforcement of support payments or arrears under a support order,

(d) making or responding to an application to the British Columbia court to set aside the registration of a foreign order under section 19, or

(e) appealing or responding to an appeal of a ruling, decision or order of the British Columbia court under this Act,

and has the right to seek an order of reimbursement of the social assistance it provided to that person.

Terminology

41  If, in a proceeding under this Act, a document from a reciprocating jurisdiction contains terminology different from the terminology in this Act or contains terminology or is in a form different than that customarily in use in the British Columbia court, the British Columbia court must give a broad and liberal interpretation to the terminology or form so as to give effect to the document.

Documents and law of reciprocating jurisdiction

42  (1) In a proceeding under this Act,

(a) the British Columbia court must take judicial notice of the law of a reciprocating jurisdiction and, if required, apply it, and

(b) an enactment of a reciprocating jurisdiction may be pleaded and proved for the purposes of this Act by producing a copy of the enactment received from the reciprocating jurisdiction.

(2) In a proceeding under this Act, a document purporting to be signed by a judge, officer of a court or public officer in a reciprocating jurisdiction is, unless the contrary is proved, proof of the appointment, signature and authority of the person who signed the document.

(3) Statements in writing sworn to by the maker, depositions or transcripts of evidence taken in a reciprocating jurisdiction may be received in evidence by a British Columbia court under this Act.

Other remedies

43  This Act does not impair any other remedy available to a person, the government of British Columbia, a province or territory of Canada, a jurisdiction outside Canada, or a political subdivision or official agency of the government of British Columbia or of a province or territory of Canada or of a jurisdiction outside Canada.

Regulations

44  (1) The Lieutenant Governor in Council may make regulations as authorized by section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations respecting the following:

(a) information or documents required for the purposes of this Act;

(b) the giving of documents required under this Act;

(c) the giving of notices under section 19;

(d) proceedings under this Act;

(e) forms for the purposes of this Act;

(f) the conversion of the amounts of support to Canadian currency.

(3) Without limiting subsection (1), if the Lieutenant Governor in Council is satisfied that laws are or will be in effect in a jurisdiction for the reciprocal enforcement of support orders made in British Columbia on a basis substantially similar to this Act, the Lieutenant Governor in Council may make regulations declaring that jurisdiction to be a reciprocating jurisdiction.

(4) In declaring a jurisdiction to be a reciprocating jurisdiction under subsection (3), the Lieutenant Governor in Council may impose any conditions with respect to the enforcement and recognition in British Columbia of support orders made or registered in that jurisdiction.

(5) The Lieutenant Governor in Council may, by regulation, revoke any declaration made under subsection (3), and the jurisdiction with respect to which the declaration was made ceases to be a reciprocating jurisdiction for the purposes of this Act.

Transitional

45  (1) An order made or registered under the former enactment, as it was before section 55 comes into force, continues to be valid and may be varied or otherwise dealt with under this Act and enforced under the Family Maintenance Enforcement Act.

(2) If notice of registration of a final order is given to the respondent before the coming into force of section 55, an application to set aside the registration of the final order must be dealt with in accordance with the former enactment as if the former enactment had not been repealed.

(3) An application under the former enactment for a provisional order or a provisional variation order by a person ordinarily resident in British Columbia, made before the coming into force of section 55, may be continued after the coming into force of section 55 as if the former enactment had not been repealed.

(4) If a final order has been received for registration under the former enactment but has not been registered in a British Columbia court on the coming into force of the section 55, the final order must be dealt with in accordance with this Act as if it were an extra-provincial order or foreign order, as the case may be, received under Part 3 of this Act.

(5) If a provisional order or a provisional variation order is received under the former enactment before the coming into force of section 55, the provisional order or provisional variation order must be dealt with in accordance with this Act as if the order were received under Part 2 or Part 4 of this Act, as the case may be.

(6) The court designated by the Attorney General for the purpose of the registration of final orders or the filing of confirmation orders under Part 8 of the Family Relations Act, R.S.B.C. 1996, c. 128, may file with the director under the Family Maintenance Enforcement Act all final orders and confirmation orders that were registered or filed with the court, before the coming into force of section 55, as if Part 8 of the Family Relations Act, R.S.B.C. 1996, c. 128, were not repealed.

Transition – sections 10, 12, 30 and 31

45.1  (1) Section 10 (3) applies to a direction of the British Columbia court under section 10 (2) (a) made on or after the coming into force of this subsection, and a direction of the British Columbia court made before the coming into force of this subsection is governed by section 10 (3) as it read immediately before that date.

(2) Section 12 applies in respect of a support application heard by the British Columbia court on or after the coming into force of this subsection, and section 12, as it read immediately before the coming into force of this subsection, applies in respect of a support application heard by the British Columbia court before that date.

(3) Section 30 (3) applies to a direction of the British Columbia court under section 30 (2) (a) made on or after the coming into force of this subsection, and a direction of the British Columbia court made before the coming into force of this subsection is governed by section 30 (3) as it read immediately before that date.

(4) Section 31 applies in respect of a support application heard by the British Columbia court on or after the coming into force of this subsection, and section 31, as it read immediately before the coming into force of this subsection, applies in respect of a support application heard by the British Columbia court before that date.

Spent

46–55   [Consequential amendments. Spent. 2002-29-46 to 55.]

Commencement

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