R.S., 1985, c. 4 (2nd Supp.)

[1986, c. 5, assented to 13th February, 1986]

An Act to provide for the release of information that may assist in locating persons in default and other persons and to permit, for the enforcement of support orders and support provisions, the garnishment and attachment of certain moneys payable by Her Majesty in right of Canada

1. This Act may be cited as the Family Orders and Agreements Enforcement Assistance Act.

2. In this Part,

“access right” means a right, granted in an order or agreement, of access to or visitation of a child;

“court” means a court having jurisdiction with respect to the enforcement of family provisions;

“custody provision” means a provision of an order or agreement awarding custody of a child;

“family provision” means a support provision, a custody provision or an access right;

“information bank director” means

(a) with respect to any of the information banks controlled by the Department of Social Development that may be searched under this Part, the Minister of Social Development,

(b) with respect to any of the information banks controlled by the Canada Employment Insurance Commission that may be searched under this Part, the Chairman of the Canada Employment Insurance Commission, and

(c) with respect to any of the information banks controlled by the Canada Revenue Agency that may be searched under this Part, the Minister of National Revenue;

“Minister” means the Minister of Justice;

“order” means any order or judgment, or interim order or judgment, relating to family support, custody or access that is enforceable in a province;

“provincial enforcement service” means any service, agency or body designated in an agreement with a province under section 3 that is entitled under the laws of the province to enforce family provisions;

“provincial information bank” means a source of information designated in an agreement made under section 3;

“support provision” means a provision of an order or agreement for maintenance, alimony or family financial support and includes any order for arrears of payments thereof.

R.S., 1985, c. 4 (2nd Supp.), s. 2; 1996, c. 11, ss. 95, 97(E), 99; 1997, c. 1, s. 16; 1999, c. 17, s. 158; 2005, c. 35, ss. 66, 67, c. 38, s. 138.

3. With the approval of the Governor in Council, the Minister may, on behalf of the Government of Canada, enter into agreements with each of the provinces concerning the searching for and the release of information under this Part.

4. Every agreement with a province under section 3 must provide for

(a) the establishment of safeguards in the province for the protection of information released under this Part; and

(b) the designation of the provincial information bank or banks that, subject to this Part, must be searched before information may be released under this Part.

5. The Minister and a province may designate in an agreement made under section 3 one or more provincial enforcement services for the purposes of this Part.

6. With the approval of the Governor in Council, the Minister of Social Development may, on behalf of the Government of Canada, enter into an agreement with each province providing a comprehensive pension plan, as defined under the Canada Pension Plan, for the purpose of obtaining the approval of that province for

(a) the creation, for the purposes of this Act, of an information bank to be controlled by the Department of Social Development in respect of contributors to and beneficiaries under that comprehensive pension plan; and

(b) the release of information under this Part from the information bank referred to in paragraph (a) and from any other information bank controlled by the Department of Social Development that contains information in respect of contributors to and beneficiaries under that comprehensive pension plan.

R.S., 1985, c. 4 (2nd Supp.), s. 6; 1996, c. 11, ss. 95, 97; 2005, c. 35, s. 53.

7. Any person, service, agency or body entitled to have a family provision enforced may, by ex parte application, request that the court apply for the release to the court of information under this Part.

R.S., 1985, c. 4 (2nd Supp.), s. 7; 1993, c. 8, s. 6.

8. (1) An application under section 7 in relation to a family provision must be accompanied by

(a) a certified copy of the order, or a copy of the agreement, containing the support provision, custody provision or access right to which the application relates;

(b) an affidavit in accordance with section 9; and

(c) subject to subsection (2), proof, as supplied by the province where the court seized of the application has jurisdiction, that the provincial information banks designated with respect to that province have been searched for information helpful in locating, as the case may be, the person who is in arrears under the support provision or the child or children who is or are the object of the custody provision or access right.

(2) The proof referred to in paragraph (1)(c) is not necessary where the affidavit in support of the application discloses that there are reasonable grounds to believe that the person, child or children referred to in that paragraph has or have left the province of the court seized of the application.

9. An affidavit in support of an application under section 7 in relation to a family provision must

(a) allege a breach of the family provision;

(b) set out particulars of the breach and identify the person who

(i) where the family provision is a support provision, is in arrears, or

(ii) where the family provision is a custody provision or access right, is believed to have possession of the child or children who is or are the object of the custody provision or access right;

(c) disclose that reasonable steps have been taken to locate the person who is in arrears or the child or children who is or are the object of the custody provision or access right and that the person, child or children have not been located;

(d) set out particulars of the reasonable steps referred to in paragraph (c); and

(e) where the affidavit is not accompanied by the proof referred to in paragraph 8(1)(c), disclose that there are reasonable grounds to believe that the person, child or children referred to in paragraph (c) has or have left the province of the court seized of the application to which the affidavit relates and set out information in support of that belief.

10. and 11. [Repealed, 1993, c. 8, s. 7]

12. A court seized of a valid application under section 7 shall, if it is satisfied

(a) that reasonable steps have been taken to locate the person, child or children to whom the application relates, and

(b) where it is alleged that the person, child or children to whom the application relates has or have left the province of the court, that the allegation is based on reasonable grounds,

grant an authorization in writing authorizing any judge of that court or any officer thereof, as the case may be, to apply for the release of information under this Part.

R.S., 1985, c. 4 (2nd Supp.), s. 12; 1993, c. 8, s. 8.

13. Subject to this Part, the following, namely,

(a) a judge of a court or any officer thereof, if authorized to do so under section 12,

(b) a provincial enforcement service, or

(c) a peace officer investigating a child abduction pursuant to section 282 or 283 of the Criminal Code,

may apply to the Minister, in the manner prescribed by the regulations, to have the information banks referred to in section 15 searched for the information referred to in section 16 and to have any such information found in those information banks released on a confidential basis.

R.S., 1985, c. 4 (2nd Supp.), s. 13; 1993, c. 8, s. 9; 1997, c. 1, s. 17.

14. (1) An application under section 13 for the release of information must contain the information and be in the form prescribed by the regulations.

(2) Where an application under section 13 is made by a person referred to in paragraph 13(a), the application must be accompanied by

(a) a copy of the family provision to which the application relates;

(b) the applicant’s authorization under section 12;

(c) a copy of the affidavit submitted in support of the application for the authorization; and

(d) where the applicant’s affidavit does not contain the allegation referred to in paragraph 9(e), proof, as supplied by the province where the court that granted the authorization has jurisdiction, that the provincial information banks designated with respect to that province have been searched for information helpful in locating the person, child or children to whom the application relates.

(3) Where an application under section 13 is made by a provincial enforcement service, the application must be accompanied by an affidavit submitted by an officer of the provincial enforcement service in accordance with subsection (4).

(3.1) Where an application under section 13 is made by a peace officer investigating a child abduction pursuant to section 282 or 283 of the Criminal Code, the application must be accompanied by

(a) a copy of the information to which the application relates; and

(b) an affidavit, submitted by the peace officer in accordance with subsection (5).

(4) An affidavit submitted by an officer of a provincial enforcement service must

(a) allege a breach of the family provision;

(b) set out particulars of the breach and identify the person who

(i) where the family provision is a support provision, is in arrears, or

(ii) where the family provision is a custody provision or an access right, is believed to have possession of the child or children who is or are the object of the custody provision or access right;

(c) disclose that reasonable steps have been taken to locate the person who is in arrears or the child or children who is or are the object of the custody provision or access right and that the person, child or children has or have not been located;

(d) set out particulars of the reasonable steps referred to in paragraph (c); and

(e) disclose

(i) that the provincial information banks designated with respect to the province of the provincial enforcement service have been searched for information helpful in locating the person who is in arrears or the child or children who is or are the object of the custody provision or access right, or

(ii) that there are reasonable grounds to believe that the person, child or children referred to in subparagraph (i) has or have left the province of the provincial enforcement service, and set out information in support of that belief.

(5) An affidavit submitted by a peace officer must

(a) disclose that reasonable steps have been taken to locate the person against whom the information was laid and the child or children alleged to have been abducted and that the person, child or children has or have not been located;

(b) set out particulars of the reasonable steps referred to in paragraph (a); and

(c) disclose

(i) that the provincial information banks designated with respect to the province where the information was laid have been searched for information helpful in locating the person, child or children referred to in paragraph (a), or

(ii) that there are reasonable grounds to believe that the person, child or children referred to in paragraph (a) has or have left the province where the information was laid, and set out information in support of that belief.

R.S., 1985, c. 4 (2nd Supp.), s. 14; 1993, c. 8, s. 10; 1997, c. 1, s. 18.

15. The information banks that may be searched under this Part are the information banks designated by the regulations from among the information banks controlled by the Department of Social Development, the Canada Revenue Agency and the Canada Employment Insurance Commission.

R.S., 1985, c. 4 (2nd Supp.), s. 15; 1996, c. 11, ss. 97, 99; 1997, c. 1, s. 19; 1999, c. 31, s. 91(F); 2005, c. 35, s. 66, c. 38, ss. 111, 146.

16. The information that may be searched for and released under this Part is

(a) the address of the person who, as the case may be,

(i) is in arrears under the support provision to which the application relates,

(ii) is believed to have possession of the child or children who is or are the object of the custody provision or access right to which the application relates, or

(iii) is believed to have possession of the child or children who is or are the object of the investigation pursuant to section 282 or 283 of the Criminal Code to which the application relates;

(b) the name and address of the employer of the person referred to in paragraph (a);

(c) the address of the child or children to whom the application relates; and

(d) the name and address of the employer of every child to whom the application relates.

17. Forthwith on the receipt of an application under section 13, the Minister shall transmit a search request to the information bank directors who shall, in accordance with the regulations, cause their designated information banks to be searched forthwith and periodically during the twelve month period immediately following the receipt by the Minister of the application.

R.S., 1985, c. 4 (2nd Supp.), s. 17; 1993, c. 8, s. 11.

18. Subject to the regulations, information in any information banks that may be searched under this Part may be released by one information bank director to the other information bank director to assist that other director in conducting a search under this Part.

19. Where information requested in an application under section 13 is found in an information bank that may be searched under this Part, the information bank director of that information bank shall cause to be transmitted to the Minister, in accordance with the regulations, all information obtained during any search conducted pursuant to section 17.

R.S., 1985, c. 4 (2nd Supp.), s. 19; 1993, c. 8, s. 12.

19.1 Where new information is obtained during a periodic search, the Minister shall not release the information to an applicant under section 13 unless the Minister is satisfied that the applicant still requires the information for the reasons set out in the application.

1993, c. 8, s. 12.

20. The Minister shall release information under this Part to an applicant under section 13 only if the Minister is satisfied that the safeguards established by the agreement under section 3 with the province of that applicant are in place.

21. No information may be released under this Part in respect of any person whose identity has been changed for security or law enforcement purposes.

22. The Governor in Council may make regulations

(a) prescribing the form of an application for the release of information under this Part and the information that must be contained therein;

(a.1) prescribing the manner in which an application for the searching of information banks and the release of information under this Part may be made;

(b) designating, for the purposes of section 15, the information banks that may be searched under this Part;

(c) setting out the manner in which searches for information under this Part are to be conducted;

(d) prescribing the conditions under which information may be released under section 18 by one information bank director to the other information bank director;

(e) establishing the procedures to be followed for the transmission to the Minister of information found in any information bank searched under this Part; and

(f) generally, for carrying out the purposes and provisions of this Part.

R.S., 1985, c. 4 (2nd Supp.), s. 22; 1997, c. 1, s. 20.

23. (1) In this Part,

“garnishable moneys” means moneys authorized to be paid by Her Majesty by or under such Acts of Parliament or provisions thereof or programs thereunder as are designated by the regulations;

“garnishee summons” includes any document or court order of similar nature;

“garnishment” includes attachment;

“Her Majesty” means Her Majesty in right of Canada;

“judgment debtor” means a person named in a garnishee summons in respect of whom garnishable moneys are sought to be garnisheed under this Part;

“Minister” means the Minister of Justice;

“provincial garnishment law” means the law of a province relating to garnishment as it applies to the enforcement of support orders and support provisions;

“support order” means an order or judgment for maintenance, alimony or family financial support that is enforceable in any province;

“support provision” means a provision in an agreement relating to the payment of maintenance or family financial support that is enforceable by a garnishee summons under provincial garnishment law.

(2) Notwithstanding the acquisition by a discounter from a client of a right to a refund of tax for the purposes of the Tax Rebate Discounting Act, the refund of tax remains, for the purposes of this Part, payable to the client and not the discounter.

R.S., 1985, c. 4 (2nd Supp.), s. 23; 1992, c. 1, s. 66; 1993, c. 8, s. 13(F).

24. Notwithstanding any other Act of Parliament preventing the garnishment of Her Majesty, Her Majesty may, for the enforcement of support orders and support provisions, be garnisheed in accordance with this Part in respect of all garnishable moneys.

25. Subject to section 26 and any regulations made under this Part, garnishment under this Part shall be in accordance with provincial garnishment law.

R.S., 1985, c. 4 (2nd Supp.), s. 25; 1993, c. 8, s. 14.

26. In the event of any inconsistency between this Part or a regulation made under this Part and provincial garnishment law, the provincial garnishment law is overridden to the extent of the inconsistency.

27. For the purposes of this Part, garnishable moneys are deemed to be located in the jurisdiction of every court requested to issue a garnishee summons in respect thereof.

28. Subject to this Part and the regulations, service of the following documents on the Minister, namely,

(a) a garnishee summons, and

(b) [Repealed, 1997, c. 1, s. 21]

(c) an application in the form prescribed by the regulations,

binds Her Majesty for five years in respect of all garnishable moneys payable to the judgment debtor named in the garnishee summons.

R.S., 1985, c. 4 (2nd Supp.), s. 28; 1993, c. 8, s. 15; 1997, c. 1, s. 21.

29. For the purposes of section 28, the five year period referred to in that section commences on the expiration of the period prescribed by the regulations that immediately follows the service of the garnishee summons on the Minister.

R.S., 1985, c. 4 (2nd Supp.), s. 29; 1993, c. 8, s. 15.

30. Subject to section 31, where a garnishee summons of continuing effect is served on the Minister under this Part and garnishable moneys become payable to the judgment debtor in the five year period during which Her Majesty is bound by the garnishee summons, Her Majesty shall, at the expiration of that period, continue to be bound in accordance with the garnishee summons in respect of all subsequent payments of garnishable moneys to the judgment debtor that are authorized by the same Act of Parliament, provision thereof or program thereunder that authorized the payments of the garnishable moneys to the judgment debtor in the period during which Her Majesty was originally bound by the garnishee summons.

R.S., 1985, c. 4 (2nd Supp.), s. 30; 1993, c. 8, s. 15.

31. Her Majesty shall cease to be bound under section 30 in respect of any garnishable moneys authorized by any particular Act of Parliament, provision thereof or program thereunder if no such moneys become payable to the judgment debtor for any period of one hundred and eighty consecutive days.

32. A garnishee summons served on the Minister has effect only if it is served on the Minister in the first thirty days following the first day on which it could have been validly served on the Minister.

33. Service of documents on the Minister in connection with garnishment proceedings permitted by this Part must be effected at the place specified in the regulations.

34. In addition to any method of service permitted in accordance with provincial garnishment law, service of documents on the Minister under this Part may be effected by registered mail or by any other method prescribed in the regulations.

35. Where service of a document on the Minister under this Part is effected by registered mail, the document shall be deemed to be served on the day of its receipt by the Minister.

36. Forthwith after receipt of the documents referred to in section 28, the Minister shall notify every minister responsible for garnishable moneys of the service thereof and provide each such minister with such information as may be necessary to assist that other minister in determining whether any garnishable moneys are payable to the judgment debtor.

R.S., 1985, c. 4 (2nd Supp.), s. 36; 1993, c. 8, s. 16.

37. Forthwith after being notified pursuant to section 36, each minister responsible for garnishable moneys shall report to the Minister on whether such moneys are payable or are foreseeably payable to the judgment debtor.

38. In addition to reporting under section 37, each minister responsible for garnishable moneys shall continue to monitor the payments of those moneys the entire time during which Her Majesty is bound in respect of payments thereof and report to the Minister whenever any payments to the judgment debtor become payable or foreseeably payable.

39. When reporting that garnishable moneys are payable or are foreseeably payable to the judgment debtor, each minister shall also inform the Minister of the amounts payable and the times when those moneys became, or will become, payable.

40. Subject to the regulations, every minister responsible for garnishable moneys is entitled to have any of the information banks that may be searched under Part I searched for any information that minister deems necessary to confirm the identity of any judgment debtor.

41. The Minister, on behalf of Her Majesty, shall respond to every garnishee summons within the time prescribed by the regulations.

42. In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, the Minister may respond to a garnishee summons by registered mail or by any other method prescribed by the regulations.

43. Where the Minister responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that the Minister has responded to the garnishee summons.

44. (1) A payment into court by the Minister is, to the extent of the payment, a good and sufficient discharge of Her Majesty’s liability under this Part and under the legislation governing the garnishable moneys.

(2) Where a payment to a provincial enforcement service as defined in section 2 is permitted under the provincial garnishment law of the province of a provincial enforcement service, a payment to the provincial enforcement service by the Minister is, to the extent of the payment, a good and sufficient discharge of Her Majesty’s liability under this Part and under the legislation governing the garnishable moneys.

45. Where a garnishee summons is served on the Minister under this Part, the Minister shall, in the form, within the time and in the manner prescribed by the regulations, notify the judgment debtor named in the garnishee summons of that service.

R.S., 1985, c. 4 (2nd Supp.), s. 45; 1993, c. 8, s. 17.

46. to 48. [Repealed, 1993, c. 8, s. 17]

49. Where a judgment debtor is paid any garnishable moneys to which he is not entitled by reason of garnishment proceedings permitted under this Part, the amount thereof is a debt due to Her Majesty by the judgment debtor and may be recovered as such in accordance with the Financial Administration Act or the legislation governing the particular garnishable moneys paid to the judgment debtor.

50. Subject to section 51, where garnishable moneys are paid under this Part to or for the benefit of a party that instituted garnishment proceedings permitted under this Part in excess of the amount that should be paid to or for the benefit of that party, the amount thereof is a debt due to Her Majesty by that party and may be recovered as such in accordance with the Financial Administration Act or by deduction or set-off against any garnishable moneys payable to or for the benefit of that party under this Part.

51. Where it is determined that the reason for the payment of excess moneys referred to in section 50 is that the judgment debtor was not entitled to the garnishable moneys garnisheed under this Part, the amount of the excess is a debt due to Her Majesty by the judgment debtor and may be recovered as such in accordance with the Financial Administration Act or the legislation governing the garnishable moneys garnisheed under this Part.

52. When a judgment debtor is indebted to

(a) Her Majesty, or

(b) Her Majesty in right of a province on account of taxes payable to any province, and an agreement exists between Canada and the province under which Canada is authorized to collect the tax on behalf of the province,

Her Majesty ranks in priority over the party that instituted the garnishment proceedings permitted under this Part with respect to any garnishable moneys that are payable to the judgment debtor notwithstanding that a garnishee summons in respect of those moneys has been served on the Minister, and the amount of the indebtedness may be recovered or retained in any manner authorized by law.

R.S., 1985, c. 4 (2nd Supp.), s. 52; 2001, c. 4, s. 81.

53. Where more than one garnishee summons is served on the Minister under this Part in respect of the same judgment debtor and the garnishable moneys payable to the judgment debtor are insufficient to satisfy all the garnishee summonses, payment shall be made on a proportional basis.

54. No execution shall issue on a judgment given against Her Majesty in garnishment proceedings permitted by this Part.

55. In the event that a garnishee summons that binds Her Majesty may be honoured under this Part or the Garnishment, Attachment and Pension Diversion Act, the garnishee summons shall be honoured first under the Garnishment, Attachment and Pension Diversion Act and secondly under this Part.

56. No person may be disentitled or disqualified in respect of any payment or future payment of garnishable moneys solely on the ground that garnishment proceedings permitted by this Part may be or have been taken in respect of that person.

57. No person may be dismissed, suspended or laid off solely on the ground that garnishment proceedings permitted by this Part may be or have been taken in respect of that person.

58. A fee in the amount prescribed by the regulations is chargeable in respect of the processing of every garnishee summons served on the Minister.

59. Subject to any regulations respecting the remittance thereof, the fee referred to in section 58 is a debt due to Her Majesty by the judgment debtor and may, subject to section 60, be recovered by deduction or set-off against any garnishable moneys payable to the judgment debtor.

60. The fee referred to in section 58 may not be recovered out of any garnishable moneys to be used to honour a garnishee summons.

61. The Governor in Council may make regulations

(a) designating Acts of Parliament, provisions thereof and programs thereunder for the purposes of the definition “garnishable moneys”;

(a.1) prescribing the percentage of the amount of garnishable moneys, in relation to the Act of Parliament or provision thereof or program thereunder by or under which the garnishable moneys are authorized to be paid, that is to be exempt from the enforcement of support orders and support provisions;

(b) prescribing the form of the application referred to in paragraph 28(c);

(c) prescribing the period of time before which Her Majesty becomes bound by the service of the documents referred to in section 28;

(d) specifying the place where service of documents on the Minister must be effected in connection with garnishment proceedings permitted under this Part;

(e) prescribing the methods in which service of documents in connection with garnishment proceedings permitted under this Part may be effected on the Minister;

(f) respecting the conducting of searches for the purposes of this Part of the information banks that may be searched under Part I;

(g) prescribing the time within which and the methods by which the Minister must respond to garnishee summonses;

(h) prescribing the form of the notification referred to in section 45 and the time within which and the manner in which it must be sent;

(i) prescribing a fee in respect of the processing of garnishee summonses and the manner of collecting the fee;

(j) respecting the remission, in whole or in part, of the fee referred to in section 58; and

(k) generally, for carrying out the purposes and provisions of this Part.

R.S., 1985, c. 4 (2nd Supp.), s. 61; 1993, c. 8, s. 18.