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FAMILY LAW ACT

FAMILY LAW ACT

Chapter F‑4.5

Table of Contents

                1      Definitions

                2      Crown is bound

                3      Court jurisdiction

                4      Concurrent proceedings65*

                5      Duty of lawyer

Part 1
Establishing Parentage

             5.1      Interpretation

                6      Application of Part

                7      Rules of parentage

                8      Presumption of parentage — biological father

             8.1      Assisted reproduction

             8.2      Surrogacy

                9      Declaration respecting parentage

              10      New evidence

              11      Notice of application

              14      Evidence not admissible

              15      Blood tests, etc.

Part 2
Guardianship, Parenting and Contact
Orders and Enforcement of
Time with a Child

              16      Definitions

              17      Notice of application

              18      Best interests of the child

Division 1
Guardianship

              19      Children subject to guardianship

              20      Guardians of child

              21      Powers, responsibilities and entitlements of guardianship

              22      Testamentary appointment of guardian

              23      Guardianship order

              24      Consent to guardianship

              25      Termination of guardianship

              26      Duration of guardianship

              30      Review of guardian’s decision

              31      Referral of questions to court

Division 2
Parenting Orders

              32      Parenting order

              33      Terms and conditions

              34      Variation of parenting order

Division 3
Contact Orders

              35      Contact order

              36      Terms and conditions


              37      Variation of contact order

Division 4
Enforcement of Time with a Child

              38      Interpretation

              39      Other rights not affected

              40      Enforcement order

              41      Failure to exercise time

              42      Variation of enforcement order

              43      Reasons must be given

              44      Assistance of enforcement officer

              45      Report by enforcement officer

Division 5
Effect of Divorce Proceedings

           45.1      Effect of divorce proceedings

Part 3
Support Obligations

              46      Definitions

Division 1
Support of Child

              47      Definition

              48      Standing in the place of a parent

              49      Obligation to support child

              50      Child support order

              51      Determining child support

              52      Change in care and control

              53      Child support agreement

              54      Suspension of child support order or agreement

              55      Termination of child support order

Division 1.1
Child Support Recalculation Program

           55.1      Definitions

         55.11      Child support recalculation program

           55.2      Registration

         55.21      Prohibiting recalculation

           55.3      Waiver

         55.31      Recalculated amount

           55.4      Right to object

         55.41      Income information

           55.5      Contact information

         55.51      Recalculation without updated income information

           55.6      Protection from liability

         55.61      Confidentiality

           55.7      Use and disclosure of information

         55.71      Service fee

           55.8      Regulations

Division 2
Support of Spouse or Adult Interdependent Partner

              56      Obligation to support spouse or adult interdependent partner

              57      Spousal or adult interdependent partner support order

              58      Factors

              59      Misconduct

              60      Objectives of spousal or adult interdependent partner support order

              61      Priority of child support

              62      Spousal or adult interdependent partner support agreement

              63      Termination of spousal or adult interdependent
partner support order

Division 3
General Support Matters

              64      Enforcement of support agreement

              65      Disclosure of financial information

              66      Terms and conditions of support order

              67      Definitions

              68      Grant of exclusive possession of home

              69      Matters to be considered

              70      Precedence of order

              71      Registration of order for possession

              72      Spouse as tenant

              73      Exclusive use of household goods

              74      Registration of financing statement re household goods

              75      Effect of registration

              76      Cancellation of registration of order

              77      Variation of support order

              78      Competent and compellable witness

              79      Applications may not be combined

              80      Support order binds estate

           80.1      Variation of support obligation where payor deceased

              81      Effect of divorce proceedings

              82      Application for reimbursement of burial expenses

Part 3.1
Canada Pension Plan (Canada)

           82.1      Definition

           82.2      Agreement re unadjusted pensionable earnings

Part 4
General Powers of Court

              83      Declaration of irreconcilability

              84      Interim order


              85      Consent order or declaration

              86      Incorporation of terms of agreement in court order

              87      Evidence admissible

              88      Failure to appear

              89      Appeal

              90      Order or declaration under appeal remains in force

              91      Frivolous or vexatious applications

              92      Stay of proceedings and judgments

              93      Costs of action

              94      Application before child is born

              95      Child as party

              96      Order for relief on behalf of child

              97      Dispute resolution

              98      Courses and programs

              99      Private hearing

            100      Publication and broadcast ban

Part 5
Other Actions

            101      Breach of promise to marry

            102      Gifts in contemplation of marriage

            103      Actions may not be brought or maintained

            104      Unity of legal personality abolished

            105      Right to pledge credit abolished

            106      Implied agency abolished

Part 6
Regulations

            107      Regulations

Part 7
Transitional Provisions, Consequential
Amendments, Repeals and
Coming into Force

            108      Transitional

            109      Transitional regulations

    110‑128      Consequential amendments

            129      Repeals

            130      Coming into force

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Definitions

1   In this Act,

                           (a)    “applicant” means a person who brings an application under this Act;

                           (b)    “birth” means birth as defined in the Vital Statistics Act and includes a stillbirth as defined in that Act;

                        (b.1)    “birth mother” means a person who gives birth to a child;

                           (c)    “child”, except in Part 1 and Part 3, means a person who is under the age of 18 years;

                        (c.1)    “conjugal” means marriage‑like;

                           (d)    “contact order” means an order made under section 35;

                           (e)    “court” means the Court of Queen’s Bench or the Provincial Court, as the case may be;

                            (f)    repealed 2010 c16 s1(2);

                           (g)    “grandparent” means a parent of a person’s parent;

                        (g.1)    “marriage” includes a void marriage and a voidable marriage;

                           (h)    “Minister” means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this Act;

                            (i)    repealed 2010 c16 s1(2);

                            (j)    “parent” means a person determined under Part 1 to be a parent of a child;

                           (k)    “parenting order” means an order made under section 32;

                            (l)    “party” means a party as defined in the regulations;

                          (m)    “person standing in the place of a parent” means a person described in section 48;

                           (n)    “relationship of interdependence” means a relationship of interdependence as defined in the Adult Interdependent Relationships Act;

                           (o)    “respondent” means a person against whom proceedings are brought under this Act.

2003 cF‑4.5 s1;2005 c10 s2;2010 c16 s1(2)

Crown is bound

2   This Act, except sections 97 and 98, binds the Crown.

2003 cF‑4.5 s2;2010 c16 s1(3)

Court jurisdiction

3(1)  The Court of Queen’s Bench has jurisdiction in all matters under this Act.

(2)  Subject to this section, the Provincial Court has jurisdiction in all matters under this Act except

                           (a)    to make a declaration under section 8.2, 9, 10 or 83,

                           (b)    repealed 2005 c10 s3,

                           (c)    to make orders under sections 68, 73 and 76, and

                           (d)    to grant relief described in section 66(3)(b), (d), (g), (4), (7), (9) and (10).

(3)  Nothing in this Act gives the Provincial Court the inherent jurisdiction of the Court of Queen’s Bench to act in a parens patriae capacity respecting a child before the Court.

2003 cF‑4.5 s3;2005 c10 s3;2010 c16 s1(4)

Concurrent proceedings

4(1)  Where an application under this Act has been made to a court, a party may not make another application that is substantially the same to the same court or the other court.

(2)  If 2 or more applications that are substantially the same are made, unless the parties agree otherwise, only the first application that has been filed and served shall proceed.

(3)  If, in an application under this Act, it appears to the court in which the application is brought that it does not have jurisdiction over all or part of the matters in issue, that court may transfer all or part of the application to the other court in accordance with the regulations.

(3.1)  A party to an application under this Act may apply to the court in which the application is brought for an order transferring the matters in issue to the other court in accordance with the regulations.

(4)  Where, in an application under this Act, it appears to the court that it is necessary or desirable for the appropriate determination of the application to have other matters under this Act or another enactment or under any other statute determined first or simultaneously, the court may, on its own motion or the request of a party,

                           (a)    adjourn the application until the other matter is determined,

                           (b)    in accordance with the regulations and insofar as it is within the court’s jurisdiction, join and hear 2 or more applications or matters together, or

                           (c)    in accordance with the regulations, and insofar as it is within the court’s jurisdiction, transfer all or part of the application to the other court.

2003 cF‑4.5 s4;2010 c16 s1(5)

Duty of lawyer

5(1)  Every lawyer who acts on behalf of a party in an application under this Act has a duty

                           (a)    to discuss with the party alternative methods of resolving the matters that are the subject of the application, and

                           (b)    to inform the party of collaborative processes, mediation facilities and family justice services known to the lawyer that might assist the parties in resolving those matters.

(2)  Subject to the regulations, every application presented to the court by a lawyer pursuant to this Act must contain a statement signed by the lawyer certifying that the lawyer has complied with subsection (1).

 

Part 1
Establishing Parentage

Interpretation

5.1(1)  In this Part,

                           (a)    “assisted reproduction” means a method of conceiving other than by sexual intercourse;

                           (b)    “embryo” means an embryo as defined in the Assisted Human Reproduction Act (Canada);

                           (c)    “human reproductive material” means human reproductive material as defined in the Assisted Human Reproduction Act (Canada);

                           (d)    “surrogate” means a person who gives birth to a child as a result of assisted reproduction if, at the time of the child’s conception, she intended to relinquish that child to

                                  (i)    the person whose human reproductive material was used in the assisted reproduction or whose human reproductive material was used to create the embryo used in the assisted reproduction, or

                                (ii)    the person referred to in subclause (i) and the person who is married to or in a conjugal relationship of interdependence of some permanence with that person.

(2)  For the purposes of this Part, if a child is born as a result of assisted reproduction, the child’s conception is deemed to have occurred at the time the procedure that resulted in the implantation of the human reproductive material or embryo was performed.

2010 c16 s1(6)

Application of Part

6   This Part does not apply to an application under section 13 of the Child, Youth and Family Enhancement Act.

2003 cF‑4.5 ss6,114;2003 c16 s117

Rules of parentage

7(1)  For all purposes of the law of Alberta, a person is the child of his or her parents.

(2)  The following persons are the parents of a child:

                           (a)    unless clause (b) or (c) applies, his or her birth mother and biological father;

                           (b)    if the child was born as a result of assisted reproduction, a person identified under section 8.1 to be a parent of the child;

                           (c)    a person specified as a parent of the child in an adoption order made or recognized under the Child, Youth and Family Enhancement Act.

(3)  The relationship of parent and child, and the kindred relationships flowing from that relationship, shall be determined in accordance with this Part.

(4)  A person who donates human reproductive material or an embryo for use in assisted reproduction without the intention of using the material or embryo for his or her own reproductive use is not, by reason only of the donation, a parent of a child born as a result.

(5)  A person who was married to or in a conjugal relationship of interdependence of some permanence with a surrogate at the time of the child’s conception is not a parent of the child born as a result of the assisted reproduction.

(6)  All distinctions between the status of a child born inside marriage and a child born outside marriage are abolished.

2003 cF‑4.5 s7;2010 c16 s1(7)

Presumption of parentage — biological father

8(1)  For the purposes of section 7(2)(a), unless the contrary is proven on a balance of probabilities, a male person is presumed to be the biological father of a child and is recognized in law to be a parent of a child in any of the following circumstances:

                           (a)    he was married to the birth mother at the time of the child’s birth;

                           (b)    he was married to the birth mother by a marriage that within 300 days before the birth of the child ended by

                                  (i)    death,

                                (ii)    decree of nullity, or

                               (iii)    judgment of divorce;

                           (c)    he married the birth mother after the child’s birth and has acknowledged that he is the father;

                           (d)    he cohabited with the birth mother for at least 12 consecutive months during which time the child was born and he has acknowledged that he is the father;

                           (e)    he cohabited with the birth mother for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child;

                            (f)    he is registered as the parent of the child at the joint request of himself and the birth mother under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta;

                           (g)    he has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose.

(2)  Where circumstances exist that give rise to a presumption under subsection (1) that more than one male person might be the father of a child, no presumption as to parentage may be made.

(3)  Subsection (1) does not apply in the case of a child born as a result of assisted reproduction.

2003 cF‑4.5 s8;2010 c16 s1(8);2010 c16 s1(8)

Assisted reproduction

8.1(1)  In this section and section 8.2,

                           (a)    a reference to the provision of human reproductive material by a person means the provision of the person’s own human reproductive material to be used for his or her own reproductive purposes;

                           (b)    a reference to the provision of an embryo by a person means the provision of an embryo created using the person’s own human reproductive material to be used for his or her own reproductive purposes.

(2)  If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a male person only, the parents of the child are

                           (a)    unless clause (b) or (c) applies, the birth mother and the male person;

                           (b)    if the birth mother is a surrogate and, under section 8.2(6), she is declared not to be a parent and the male person is declared to be a parent, the male person and a person who

                                  (i)    was married to or in a conjugal relationship of interdependence of some permanence with the male person at the time of the child’s conception, and

                                (ii)    consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception;

                           (c)    unless section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under section 8.2, the birth mother only.

(3)  If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a female person only, the parents of the child are

                           (a)    unless clause (b) or (c) applies, the birth mother and a person who

                                  (i)    was married to or in a conjugal relationship of interdependence of some permanence with the birth mother at the time of the child’s conception, and

                                (ii)    consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception;

                           (b)    if the birth mother is a surrogate and, under section 8.2(6), she is declared not to be a parent and the female person is declared to be a parent, the female person and a person who

                                  (i)    was married to or in a conjugal relationship of interdependence of some permanence with the female person at the time of the child’s conception, and

                                (ii)    consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception;

                           (c)    unless section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under section 8.2, the birth mother only.

(4)  If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person and a female person, the parents of the child are

                           (a)    unless clause (b) or (c) applies, the birth mother and the male person;

                           (b)    if the birth mother is a surrogate and, under section 8.2(6), she is declared not to be a parent and the male person and female person are each declared to be a parent, the male person and the female person;

                           (c)    unless section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under section 8.2, the birth mother only.

(5)  If a child is born as a result of assisted reproduction without the use of human reproductive material or an embryo provided by a person referred to in subsection (1)(a) or (b), the parents of the child are the birth mother and a person who

                           (a)    was married to or in a conjugal relationship of interdependence of some permanence with the birth mother at the time of the child’s conception, and

                           (b)    consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception.

(6)  Unless the contrary is proven, a person is presumed to have consented to be a parent of a child born as a result of assisted reproduction if the person was married to or in a conjugal relationship of interdependence of some permanence with,

                           (a)    in the case of a child born in the circumstances referred to in subsection (2), the male person referred to in that subsection,

                           (b)    in the case of a child born in the circumstances referred to in subsection (3), the female person referred to in that subsection, or

                           (c)    in the case of a child born in the circumstances referred to in subsection (5), the birth mother.

2010 c16 s1(9)

Surrogacy

8.2(1)  An application may be made to the court for a declaration that

                           (a)    a surrogate is not a parent of a child born to the surrogate as a result of assisted reproduction, and 

                           (b)    a person whose human reproductive material or embryo was provided for use in the assisted reproduction is a parent of that child.

(2)  Subject to subsection (3), the following persons may make an application under subsection (1):

                           (a)    the surrogate;

                           (b)    a person referred to in subsection (1)(b);

                           (c)    a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b).

(3)  If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person referred to in subsection (1)(b) and a female person referred to in subsection (1)(b), only the surrogate, the male person or the female person may make an application under subsection (1).

(4)  An application under subsection (1) may not be commenced more than 30 days after the date of the child’s birth unless the court allows a longer period.

(5)  Unless the court directs otherwise, the following persons must, in accordance with the regulations, be served with notice of the application:

                           (a)    if a surrogate brings an application under subsection (1),

                                  (i)    a person referred to in subsection (1)(b),

                                (ii)    unless subsection (3) applies, a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b), and

                               (iii)    any other person as the court considers appropriate;

                           (b)    if a person referred to in subsection (1)(b) brings an application under subsection (1),

                                  (i)    the surrogate,

                                (ii)    unless subsection (3) applies, a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b),

                               (iii)    if subsection (3) applies, the other person referred to in subsection (1)(b), and

                               (iv)    any other person as the court considers appropriate;

                           (c)    if a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b) brings an application,

                                  (i)    the person referred to in subsection (1)(b),

                                (ii)    the surrogate, and

                               (iii)    any other person as the court considers appropriate.

(6)  The court shall make the declaration applied for if the court is satisfied that

                           (a)    the child was born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a person referred to in subsection (1)(b), and

                           (b)    the surrogate consents, in the form provided for by the regulations, to the application.

(7)  A person who is declared to be a parent of the child under subsection (6) and any person who, as a result of that declaration, is a parent of the child under section 8.1 are deemed to be the parents at and from the time of the birth of the child.

(8)  Any agreement under which a surrogate agrees to give birth to a child for the purpose of relinquishing that child to a person

                           (a)    is not enforceable,

                           (b)    may not be used as evidence of consent of the surrogate under subsection (6)(b), and

                           (c)    may be used as evidence of consent for the purposes of section 8.1(2)(b)(ii) or (3)(b)(ii).

(9)  The court may waive the consent required under subsection (6)(b) if

                           (a)    the surrogate is deceased, or

                           (b)    the surrogate cannot be located after reasonable efforts have been made to locate her.

(10)  If the court makes a declaration under subsection (6), the court shall identify in the declaration any person referred to in section 8.1(2)(b)(i) and (ii) or (3)(b)(i) and (ii), as the case may be, who is a parent as a result of that declaration.

(11)  The court has jurisdiction under this section if the child is born in Alberta.

(12)  An application may not be made under this section if

                           (a)    the child has been adopted, or

                           (b)    the declaration sought would result in the child having more than 2 parents.

2010 c16 s1(9)

Declaration respecting parentage

9(1)  If there is a dispute or any uncertainty as to whether a person is or is not a parent of a child under section 7(2)(a) or (b), the following persons may apply to the court for a declaration that the person is or is not the parent of a child:

                           (a)    a person claiming to be a parent of the child;

                           (b)    a person claiming not to be a parent of the child;

                           (c)    the child;

                           (d)    a parent of the child, if the child is under the age of 18 years;

                           (e)    a guardian of the child;

                            (f)    a person who has the care and control of the child.

(2)  This section does not apply where a child is born to a surrogate who has consented to an application under section 8.2.

(3)  If the court finds that a living person is or is not a parent of a child, the court may make a declaration to that effect.

(4)  If the court finds that a deceased person is or is not a parent of a child conceived before that person’s death, the court may make a declaration to that effect.

(5)  In making a declaration under this section, the court shall give effect to any applicable presumption set out in section 8 and any applicable provision of section 8.1.

(6)  The court has jurisdiction under this section if

                           (a)    the child is born in Alberta, or

                           (b)    an alleged parent resides in Alberta.

(7)  An application or declaration may not be made under this section if

                           (a)    the child has been adopted, or

                           (b)    the declaration sought would result in the child having more than 2 parents.

(8)  When making a declaration of parentage, the court may, in order to facilitate registration under the Vital Statistics Act, order one or more of the following:

                           (a)    if the child is less than 12 years of age at the time the application is made, that the Registrar of Vital Statistics register or amend the name of the child in accordance with section 10 of the Vital Statistics Act;

                           (b)    that the Registrar of Vital Statistics add the name of a parent to the child’s birth registration document;

                           (c)    that the Registrar of Vital Statistics amend the parentage shown on the child’s birth registration document.

(9)  In making an order under subsection (8), the court shall consider the child’s views and preferences.

(10)  A declaration of the court that a person is not a parent of a child does not affect

                           (a)    any rights and duties that have been exercised and observed, or

                           (b)    any interests in property that have been distributed before the declaration is made, unless the court orders otherwise.

2003 cF‑4.5 s9;2007 cV‑4.1 s82;2010 c16 s1(10),(52);
2013 c23 s6

New evidence

10(1)  Where

                           (a)    a declaration of parentage has been made or an application for a declaration of parentage has been dismissed under section 9, and

                           (b)    evidence of a substantial nature becomes available that was not available at the previous hearing,

the court may, on application by a person referred to in section 9(1), confirm a declaration, set aside a declaration or make a new declaration of parentage.

(2)  A person may not bring an application under this section without the leave of the court.

(3)  Notice of an application under this section shall be given to the persons referred to in section 11.

(4)  The setting aside of a declaration of parentage under subsection (1) does not affect

                           (a)    any rights and duties that have been exercised and observed, or

                           (b)    any interests in property that have been distributed as a result of the declaration before it is set aside, unless the court orders otherwise.

2003 cF‑4.5 s10;2010 c16 s1(11)

Notice of application

11(1)  Unless the court directs otherwise, the following persons must, in accordance with the regulations, be served with notice of an application for a declaration of parentage under section 9:

                           (a)    the person claimed to be the child, if the child is 16 years of age or older;

                           (b)    each guardian of the person claimed to be the child;

                           (c)    a person who has the care and control of the person claimed to be the child;

                           (d)    any person claiming or alleged to be a parent of whom the applicant has knowledge;

                           (e)    any other person, including a child under 16 years of age, as the court considers appropriate.

(2)  Before making an order under this Part, the court must consider whether it is appropriate for a child who has not been served under this section to have notice of the application.

2003 cF‑4.5 s11; 2010 c16 s1(12)

12 and 13   Repealed 2010 c16 s1(13).

Evidence not admissible

14   Evidence given in an application under this Part or Part 3 that tends to show that the person giving evidence had sexual intercourse with any person is not admissible against the person giving evidence in any other action under provincial law to which that person is a party.

 

Blood tests, etc.

15(1)  On the request of a party to an application under this Part or Part 3 or on its own motion, the court may make an order granting leave to obtain blood tests, DNA tests or any other tests that the court considers appropriate from any person named in the order and to submit the results in evidence.

(2)  An order under subsection (1) may be made subject to any terms and conditions the court considers appropriate.

(3)  No test shall be performed on a person without the person’s consent.

(4)  If a person named in an order under subsection (1) is not capable of giving consent because of age or incapacity, the consent may be given by the person’s guardian.

(5)  If a person named in an order under subsection (1) or the person’s guardian, as the case may be, refuses to consent to a test referred to in the order, the court may draw any inference it considers appropriate on behalf of the child without prejudice to the child in future proceedings.

 

Part 2
Guardianship, Parenting and Contact Orders and Enforcement of
Time with a Child

Definitions

16   In this Part,

                           (a)    “guardianship order” means an order made under section 23;

                           (b)    “place of residence”, in respect of a child, means the place where a child is living, either temporarily or permanently;

                           (c)    “proposed guardian” means a person who applies or on whose behalf someone else applies for an order appointing the person as a guardian of a child.

                           (d)    repealed 2004 cM‑18.1 s21.

2003 cF‑4.5 s16;2004 cM‑18.1 s21

Notice of application

17(1)  Unless the court directs otherwise, the following persons must, in accordance with the regulations, be served with notice of an application under this Part:

                           (a)    each guardian of the child;

                           (b)    in the case of an application under Division 1 or 3, the child, if the child is 16 years of age or older;

                           (c)    in the case of an application for a guardianship order,

                                  (i)    each proposed guardian, and

                                (ii)    a director under the Child, Youth and Family Enhancement Act if

                                      (A)    the child is in the custody or under the guardianship of a director, or

                                      (B)    the child comes into the custody or under the guardianship of a director at any time after the application is commenced;

                           (d)    repealed 2004 cM‑18.1 s21;

                           (e)    any other person, other than a director under the Child, Youth and Family Enhancement Act, whom the court considers appropriate.

(2)  Before making an order under this Part, the court must consider whether it is appropriate for a child who has not been served under this section to be given notice of the application.

2003 cF‑4.5 ss17,114;2003 c16 s117;2004 cM‑18.1 s21;
2010 c16 s1(15)

Best interests of the child

18(1)  In all proceedings under this Part except proceedings under section 20, the court shall take into consideration only the best interests of the child.

(2)  In determining what is in the best interests of a child, the court shall

                           (a)    ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and

                           (b)    consider all the child’s needs and circumstances, including

                                  (i)    the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development,

                                (ii)    the history of care for the child,

                               (iii)    the child’s cultural, linguistic, religious and spiritual upbringing and heritage,

                               (iv)    the child’s views and preferences, to the extent that it is appropriate to ascertain them,

                                 (v)    any plans proposed for the child’s care and upbringing,

                               (vi)    any family violence, including its impact on

                                      (A)    the safety of the child and other family and household members,

                                      (B)    the child’s general well‑being,

                                      (C)    the ability of the person who engaged in the family violence to care for and meet the needs of the child, and

                                      (D)    the appropriateness of making an order that would require the guardians to co‑operate on issues affecting the child,

                              (vii)    the nature, strength and stability of the relationship

                                      (A)    between the child and each person residing in the child’s household and any other significant person in the child’s life, and

                                      (B)    between the child and each person in respect of whom an order under this Part would apply,

                             (viii)    the ability and willingness of each person in respect of whom an order under this Part would apply

                                      (A)    to care for and meet the needs of the child, and

                                      (B)    to communicate and co‑operate on issues affecting the child,

                               (ix)    taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,

                                 (x)    the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and

                               (xi)    any civil or criminal proceedings that are relevant to the safety or well‑being of the child.

(3)  In this section, “family violence” includes behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another family or household member to reasonably fear for his or her safety or that of another person, but does not include

                           (a)    the use of force against a child as a means of correction by a guardian or person who has the care and control of the child if the force does not exceed what is reasonable under the circumstances, or

                           (b)    acts of self‑protection or protection of another person.

(4)  For the purpose of subsection (2)(b)(vi), the presence of family violence is to be established on a balance of probabilities.

2003 cF‑4.5 s18;2010 c16 s1(16)

Division 1
Guardianship

Children subject to guardianship

19(1)  Every child is subject to guardianship.

(2)  Subsection (1) does not apply to a child who has become a spouse or adult interdependent partner.

(3)  A person who is or is appointed as a guardian of a child under this Part is a guardian for all purposes of the law of Alberta.

2003 cF‑4.5 s19;2010 c16 s1(17)

Guardians of child

20(1)  This section is subject to any order of the court regarding the guardianship of a child.

(2)  Subject to this section, a parent of a child is a guardian of the child if the parent

                           (a)    has acknowledged that he or she is a parent of the child, and

                           (b)    has demonstrated an intention to assume the responsibility of a guardian in respect of the child

within one year from either becoming aware of the pregnancy or becoming aware of the birth of the child, whichever is earlier.

(3)  For the purposes of this section, a parent has demonstrated an intention to assume the responsibility of a guardian in respect of a child by

                           (a)    being married to the other parent at the time of the birth of the child,

                           (b)    being the adult interdependent partner of the other parent at the time of the birth of the child or becoming the adult interdependent partner of the other parent after the birth of the child,

                           (c)    entering into an agreement that meets the requirements of the regulations with the other parent to be a guardian of the child,

                           (d)    marrying the other parent after the birth of the child,

                           (e)    cohabiting with the other parent for at least 12 consecutive months during which time the child was born,

                            (f)    with respect to a female parent, carrying the pregnancy to term,

                           (g)    with respect to a child born as a result of assisted reproduction, being a parent of the child under section 8.1,

                           (h)    being married to the other parent by a marriage that, within 300 days before the birth of the child, ended by

                                  (i)    death,

                                (ii)    a decree of nullity, or

                               (iii)    a judgment of divorce,

                            (i)    where the other parent is the birth mother of the child, voluntarily providing or offering to provide reasonable direct or indirect financial or other support, other than pursuant to a court order, for the birth mother during or after her pregnancy,

                            (j)    voluntarily providing or offering to provide reasonable direct or indirect financial or other support, other than pursuant to a court order, for the child, or

                           (k)    any other circumstance that a court, on application under subsection (6), finds demonstrates the parent’s intention to assume the responsibility of a guardian in respect of the child.

(4)  Despite subsection (2), if the pregnancy resulting in the birth of the child was a result of a sexual assault, the parent committing that assault is not eligible to be a guardian of the child under this section.

(5)  For the purposes of subsection (4), sexual assault may be found by a court under subsection (6) to have occurred whether or not a charge has been or could be laid, dismissed or withdrawn and whether or not a conviction has been or could be obtained.

(6)  A court may, on application by a parent of a child, a guardian of a child or a child, or on its own motion in a proceeding under this Act or the Child, Youth and Family Enhancement Act, make a determination that a parent meets or does not meet the requirements to be a guardian under subsection (2).

(7)  In making a determination under subsection (6), the court may identify the powers, responsibilities and entitlements of the guardian, but the court may not vary those things without an application under section 32.

(8)  In an application under this section, the court may, for the purposes of this section only, make a finding that a person is a parent, and in doing so, the court shall have regard to Part 1.

(9)  Despite anything to the contrary in this section, a person who is a guardian of a child immediately before the coming into force of this subsection does not cease to be a guardian by reason of this section.

2003 cF‑4.5 s20;2005 c10 s6;2010 c16 s1(18)

Powers, responsibilities and entitlements of guardianship

21(1)  A guardian shall exercise the powers, responsibilities and entitlements of guardianship in the best interests of the child.

(2)  Where a child has more than one guardian, the guardians

                           (a)    may each exercise the powers, responsibilities and entitlements of a guardian, unless the court orders otherwise,

                           (b)    shall provide information to any other guardian relating to the  exercise of  powers, responsibilities and entitlements of guardianship, at the request of that other guardian,

                           (c)    shall use their best efforts to co‑operate with one another in exercising their powers, responsibilities and entitlements of guardianship, and

                           (d)    may enter into an agreement with respect to the allocation of  powers, responsibilities and entitlements of guardianship among themselves.

(3)  A guardian who is neither a parent of the child nor a person standing in the place of a parent referred to in section 48 has no legal duty to support the child from the guardian’s own financial resources.

(4)  Except where otherwise limited by a parenting order, each guardian is entitled

                           (a)    to be informed of and consulted about and to make all significant decisions affecting the child in the exercise of the powers and responsibilities of guardianship described in subsection (5), and

                           (b)    to have sufficient contact with the child to carry out those powers and responsibilities.

(5)  Except where otherwise limited by law, including a parenting order, each guardian has the following responsibilities in respect of the child:

                           (a)    to nurture the child’s physical, psychological and emotional development and to guide the child towards independent adulthood;

                           (b)    to ensure the child has the necessaries of life, including medical care, food, clothing and shelter.

(6)  Except where otherwise limited by law, including a parenting order, each guardian may exercise the following powers:

                           (a)    to make day‑to‑day decisions affecting the child, including having the day‑to‑day care and control of the child and supervising the child’s daily activities;

                           (b)    to decide the child’s place of residence and to change the child’s place of residence;

                           (c)    to make decisions about the child’s education, including the nature, extent and place of education and any participation in extracurricular school activities;

                           (d)    to make decisions regarding the child’s cultural, linguistic, religious and spiritual upbringing and heritage;

                           (e)    to decide with whom the child is to live and with whom the child is to associate;

                            (f)    to decide whether the child should work and, if so, the nature and extent of the work, for whom the work is to be done and related matters;

                           (g)    to consent to medical, dental and other health‑related treatment for the child;

                           (h)    to grant or refuse consent where consent of a parent or guardian is required by law in any application, approval, action, proceeding or other matter;

                            (i)    to receive and respond to any notice that a parent or guardian is entitled or required by law to receive;

                            (j)    subject to the Minors’ Property Act and the Public Trustee Act, to commence, defend, compromise or settle any legal proceedings relating to the child and to compromise or settle any proceedings taken against the child;

                           (k)    to appoint a person to act on behalf of the guardian in an emergency situation or where the guardian is temporarily absent because of illness or any other reason;

                            (l)    to receive from third parties health, education or other information that may significantly affect the child;

                          (m)    to exercise any other powers reasonably necessary to carry out the responsibilities of guardianship.

(7)  A guardian who exercises any of the powers referred to in subsection (6) shall do so in a manner consistent with the evolving capacity of the child.

(8)  Subsections (2) and (4) do not apply to decisions of a director under the Child, Youth and Family Enhancement Act.

2003 cF‑4.5 s21;2005 c10 s7

Testamentary appointment of guardian

22(1)  A guardian who is a parent of a child may appoint a person to be a guardian of the child after the death of that guardian by

                           (a)    a will, or

                           (b)    a written document that is signed and dated by the guardian and an attesting witness.

(2)  An appointment under subsection (1) does not take effect unless accepted by the person either expressly or impliedly by the person’s conduct.

(3)  Unless the guardian expressly states otherwise in the will or document referred to in subsection (1),

                           (a)    the guardianship takes effect immediately on the guardian’s death, and

                           (b)    if more than one person is appointed as a guardian under subsection (1), any one of the persons may accept the appointment even if one or more of the other persons appointed decline to accept.

(4)  A guardian may revoke an appointment under subsection (1).

(5)  A person appointed as a guardian under subsection (1) has only the powers, responsibilities and entitlements of guardianship that the guardian had at the time of the guardian’s death.

(6)  If a guardian who is subject to a parenting order dies without appointing a guardian under subsection (1), a surviving guardian who is a parent of the child may, subject to any limitations imposed by the court, exercise the powers, responsibilities and entitlements of guardianship that had been allocated to the deceased guardian under that order.

2003 cF‑4.5 s22;2010 c16 s1(19)

Guardianship order

23(1)  The court may, on application by a person who

                           (a)    is an adult and has had the care and control of a child for a period of more than 6 months, or

                           (b)    is a parent other than a guardian of a child,

make an order appointing the person as a guardian of the child.

(2)  The court may, on application by a child, make an order appointing a person as a guardian of the child if

                           (a)    the child has no guardian, or

                           (b)    none of the child’s guardians is able or willing to exercise the powers, responsibilities and entitlements of guardianship in respect of the child.

(3)  The court on hearing an application for a guardianship order shall consider, and may require the applicant to provide the court with a report prepared by a qualified person respecting, whether it is in the best interests of the child that the applicant be appointed as a guardian of the child, including whether the proposed guardian

                           (a)    is suitable as a guardian, and

                           (b)    has the ability and is willing to exercise the powers, responsibilities and entitlements of guardianship in respect of the child.

(4)  Subject to subsection (5), a person may not apply for a guardianship order unless the child or proposed guardian resides in Alberta.

(5)  If it is satisfied that there are good and sufficient reasons for doing so, the court may waive the requirement

                           (a)    that the child or proposed guardian reside in Alberta, or

                           (b)    in the case of an application under subsection (1)(a), that the applicant has had the care and control of the child for a period of more than 6 months.

(6)  Subject to the regulations, the court may at any time on its own motion make a guardianship order appointing a guardian of a child, other than a director under the Child, Youth and Family Enhancement Act, to act with another guardian of the child in accordance with section 21(2).

(7)  The court may, in making a guardianship order under this section or terminating the guardianship of a guardian under section 25, make a parenting order on its own motion or on application by one or more of the parties.

(8)  No order may be made under subsection (1) or (2) if the purpose of the application is to facilitate the adoption of the child.

(9)  For greater certainty, one or more persons may be appointed guardians of a child under this section despite the fact that one or both parents of the child are guardians pursuant to section 20.

2003 cF‑4.5 ss23,114;2003 c16 s117;2005 c10 s8;2010 c16 s1(20)

Consent to guardianship

24(1)  A guardianship order shall not be made without the consent of

                           (a)    each guardian of the child,

                           (b)    the child, if the child is 12 years of age or older, and

                           (c)    the proposed guardian.

(2)  Despite subsection (1), the court may make an order dispensing with the consent of one or more of the persons referred to in subsection (1)(a) or (b) if the court is satisfied that there are good and sufficient reasons for doing so.

 

Termination of guardianship

25(1)  The court may, on application by a guardian or a proposed guardian, make an order terminating the guardianship of a guardian, including the applicant, if there is a guardian in place or about to be appointed and if

                           (a)    the court is satisfied that the guardian whose guardianship is to be terminated consents to the termination, or

                           (b)    for reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so.

(2)  No order under subsection (1) relating to a child who is 12 years of age or older shall be made without the consent of the child.

(3)  Despite subsection (2), the court may make an order dispensing with the consent of the child if the court is satisfied that there are good and sufficient reasons for doing so.

(4)  If the court makes a guardianship order pursuant to an application by a child under section 23(2), the court may make a further order terminating the guardianship of any guardian if the court is satisfied that the guardian is unable or unwilling to exercise the powers, responsibilities and entitlements of guardianship in respect of the child.

 

Duration of guardianship

26   A person continues to be a guardian of a child until the earliest of

                           (a)    the guardian’s death,

                           (b)    the child’s attaining the age of 18 years,

                           (c)    the child’s becoming a spouse or adult interdependent partner, and

                           (d)    the termination of the guardian’s guardianship under section 25.

 

27 to 29   Repealed 2004 cM‑18.1 s21.

Review of guardian’s decision

30(1)  In this section, “significant decision” means a decision that

                           (a)    involves a serious risk to the health or safety of a child, or

                           (b)    is likely to have serious long‑term consequences for the child.

(2)  The court may, on application by a guardian or on its own motion, review a significant decision of a guardian, whether or not it has been implemented, and may

                           (a)    confirm, reverse or vary that decision, and

                           (b)    provide advice and directions in respect of that decision.

(3)  This section does not apply to decisions of a director under the Child, Youth and Family Enhancement Act.

2003 cF‑4.5 ss30,114;2003 c16 s117

Referral of questions to court

31(1)  A guardian appointed by the court or by will or a document referred to in section 22(1) may apply to the court for directions concerning a question affecting the child, and the court may make any order in that regard that the court considers appropriate.

(2)  Repealed 2004 cM‑18.1 s21.

2003 cF‑4.5 s31;2004 cM‑18.1 s21;2010 c16 s1(21)

Division 2
Parenting Orders

Parenting order

32(1)  Where a child has more than one guardian and the guardians

                           (a)    are not able to agree with each other in exercising the powers, responsibilities and entitlements of guardianship in respect of the child, and

                           (b)    in the case where the guardians are the parents of the child, are living separate and apart,

the court may, on application by one or more of the guardians, make an order relating to the exercise of the powers, responsibilities and entitlements of guardianship in respect of the child.

(2)  A parenting order may contain any or all of the following:

                           (a)    an allocation, generally or specifically, of the powers, responsibilities and entitlements of guardianship among the guardians;

                           (b)    an allocation of parenting time, which may be by way of a schedule, unless a schedule is unnecessary in the circumstances;

                           (c)    a dispute resolution process for any or all future disputes regarding guardianship or parenting arrangements, if the process has been agreed to by the persons who are bound by that process;

                           (d)    any other provisions that the court considers appropriate.

(3)  Subject to any limitations imposed by the court, parenting time allocated to a guardian under subsection (2)(b) is exclusive to that guardian.

(4)  Unless the court orders otherwise, if a guardianship power or responsibility is allocated to one guardian, the other guardian or guardians remain entitled to make inquiries and to be given information about any significant matter that arises in connection with the exercise of that power or responsibility.

(5)  In this section, “parenting time” means time during which a guardian has the power to make day to day decisions affecting the child, including having the day‑to‑day care and control of the child and supervising the child’s daily activities, whether the child is in the guardian’s presence or out of the guardian’s presence with the guardian’s express or implied consent.

 

Terms and conditions

33(1)  The court may make a parenting order for a definite or indefinite period or until a specified event occurs and may impose terms, conditions and restrictions in connection with the order as the court considers appropriate.

(2)  Without limiting the generality of subsection (1), the court may include in a parenting order a term requiring a guardian who intends to change his or her place of residence or that of the child to notify the other guardian or guardians, at least 60 days before the change or within such other period before the change as the court may specify, of the change, the date on which the change will be made, and the new place of residence for the guardian or the child, as the case may be.

 

Variation of parenting order

34(1)  In this section, “variation order” means an order made under subsection (2) or (5).

(2)  The court may, on application by one or more of the guardians, make an order varying, suspending or terminating a parenting order or any part of that order.

(3)  Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that a change in the needs or circumstances of the child has occurred since the making of the parenting order or the last variation order made in respect of that order, and in making the variation order, the court shall consider only the best interests of the child, as required by section 18 and as determined by reference to that change.

(4)  The court may include in a variation order any provision that could have been included in the parenting order in respect of which the variation order is sought.

(5)  The court may, on application by the child or a person who has the care and control of the child, make an order varying, suspending or terminating a parenting order referred to in section 22(6) or any part of that order.

 

Division 3
Contact Orders

Contact order

35(1)  The court may, on application by any person, including a guardian, make an order providing for contact between a child and a person who is not a guardian.

(2)  Subject to subsection (3), a person other than

                           (a)    a parent or a guardian of a child, or

                           (b)    a person standing in the place of a parent

may not make an application under this section without the leave of the court on notice to the guardians.

(3)  A grandparent of a child does not require the leave of the court to make an application under this section if

                           (a)    the guardians are the parents of the child and

                                  (i)    the guardians are living separate and apart, or

                                (ii)    one of the guardians has died,

                                and

                           (b)    the grandparent’s contact with the child has been interrupted by

                                  (i)    the separation of the guardians, or

                                (ii)    the death of the guardian.

(4)  In determining whether to grant leave under subsection (2), the court shall consider the best interests of the child, including

                           (a)    the significance of the relationship, if any, between the child and the person for whom contact with the child is proposed, and

                           (b)    the necessity of making an order to facilitate contact between the child and the person for whom contact with the child is proposed.

(5)  Before the court makes a contact order, the court shall satisfy itself that contact between the child and the person for whom contact with the child is proposed is in the best interests of the child, including whether

                           (a)    the child’s physical, psychological or emotional health may be jeopardized if contact between the child and the person for whom contact with the child is proposed is denied, and

                           (b)    the guardians’ denial of contact between the child and the person for whom contact with the child is proposed is unreasonable.

(6)  The court may, in a contact order, provide for contact between the child and the person for whom contact with the child is proposed in the form of visits or in the form of oral or written communication or any other method of communication, and may provide for any related matter as the court considers appropriate.

2003 cF‑4.5 s35;2010 c16 s1(22)

Terms and conditions

36   The court may make a contact order for a definite or indefinite period or until a specified event occurs and may impose terms, conditions and restrictions in connection with the order as the court considers appropriate.

 

Variation of contact order

37(1)  In this section, “variation order” means an order made under subsection (2).

(2)  The court may, on application by

                           (a)    a person who has been granted contact with a child under a contact order, or

                           (b)    a guardian of the child,

make an order varying, suspending or terminating a contact order or any part of that order.

(3)  Before the court makes a variation order in respect of a contact order, the court shall satisfy itself that a change in the needs or circumstances of the child has occurred since the making of the contact order or the last variation order made in respect of that order, and in making the variation order, the court shall consider only the best interests of the child, as required by section 18 and as determined by reference to the change.

(4)  The court may include in a variation order any provision that could have been included in the contact order in respect of which the variation order is sought.

 

Division 4
Enforcement of Time
with a Child

Interpretation

38(1)  In this Division,

                           (a)    “compensatory time” means time with a child that may be given in substitution for a denial of time;

                           (b)    “denial of time” means denial of a right under a time with a child clause and includes the failure of a person to return a child after having spent time with a child;

                           (c)    “enforcement officer” means

                                  (i)    a police officer as defined in section 1 of the Police Act,

                                (ii)    a person appointed for the purposes of section 156 of the National Defence Act (Canada) or employed on duties prescribed in regulations made under the National Defence Act (Canada) that require that person to have the powers of a peace officer,

                               (iii)    a First Nations police officer appointed pursuant to section 42 of the Police Act, or

                               (iv)    a person or one of a category of persons designated by the regulations;

                           (d)    “enforcement order” means an order made under section 40;

                           (e)    “extra‑provincial tribunal” means a court or tribunal outside Alberta with authority to grant an order containing a time with a child clause;

                            (f)    “justice of the peace” means justice of the peace under the Justice of the Peace Act;

                           (g)    “time with a child clause” means a provision granting time with a child at determinable times, on determinable days or dates or for determinable periods that is contained in one of the following orders, whether interim or from an extra‑provincial tribunal or otherwise, but not including an order made under the Child, Youth and Family Enhancement Act:

                                  (i)    a parenting order,

                                (ii)    a contact order, or

                               (iii)    an order granting a right of custody or access to a child under the Provincial Court Act, the Divorce Act or similar legislation.

(2)  For the purposes of sections 40(2)(c) and (6)(b) and 41, necessary expenses include the following:

                           (a)    travel expenses;

                           (b)    the costs of locating a child and securing time with the child;

                           (c)    lost wages;

                           (d)    any other expenses the court may allow.

2003 cF‑4.5 ss38,114;2003 c16 s117;2005 c10 s9;
2009 c48 s4;2011 c20 s8

Other rights not affected

39(1)  Nothing in this Division affects any other rights or remedies provided by law to enforce, confirm, vary or terminate an order containing a time with a child clause.

(2)  Unless a court has jurisdiction, nothing in this Division is to be construed as authorizing the court to vary or terminate an order containing a time with a child clause.

 

Enforcement order

40(1)  Subject to subsection (5), the court, on application by a person with a right under a time with a child clause, if it is satisfied that there has been a denial of time within 12 months of the application being brought, may make any enforcement order that is appropriate in the circumstances.

(2)  An enforcement order under subsection (1) may contain any one or more of the following provisions:

                           (a)    a provision requiring the respondent to give the applicant compensatory time;

                           (b)    a provision requiring the respondent to give security, in the form and amount and under the conditions determined by the court, for the performance of the obligation in the time with a child clause;

                           (c)    a provision requiring the respondent to reimburse the applicant for any necessary expenses actually incurred as a result of the denial of time;

                           (d)    a provision imposing on the respondent a penalty in an amount not exceeding $100 for each day there has been or is a denial of time to a maximum of $5000 and in default of payment to imprisonment for a term not exceeding 90 days;

                           (e)    a provision providing for the respondent to be imprisoned, continuously or intermittently, to a maximum of 90 days for a denial of time until time with the child is given;

                            (f)    where the court is satisfied, based on the respondent’s history of denial of time or based on other reasonable and probable grounds, that a denial of time will occur, a provision directing an enforcement officer to act in accordance with section 44;

                           (g)    a provision directing the respondent or the applicant, or both, to do anything that the court considers appropriate in the circumstances that is intended to induce compliance with the time with a child clause.

(3)  A provision referred to in subsection (2)(d), (e) or (f) may be included in an enforcement order only if the court is satisfied that none of the other provisions provided for in subsection (2) would be effective.

(4)  If an enforcement order contains a provision referred to in subsection (2)(f), the court shall include sufficient particulars of time, days, dates or periods of time to be enforced.

(5)  If the court is of the opinion that the denial of time was excusable in the particular circumstances, the court may

                           (a)    refuse to make an enforcement order, or

                           (b)    make any enforcement order in accordance with subsection (6) that is appropriate in the circumstances.

(6)  An enforcement order referred to in subsection (5)(b) may contain any one or more of the following provisions:

                           (a)    a provision requiring the respondent to give the applicant compensatory time;

                           (b)    a provision requiring the respondent to reimburse the applicant for any necessary expenses actually incurred as a result of the denial of time;

                           (c)    a provision directing the respondent or the applicant, or both, to do anything that the court considers appropriate in the circumstances that is intended to induce compliance with the time with a child clause.

 

Failure to exercise time

41   Where a person who has a right under a time with a child clause fails to exercise that right without reasonable notice to a guardian, the court may, on application by that guardian, make an order requiring the person to reimburse the guardian for any necessary expenses actually incurred by that guardian as a result of the failure to exercise that right.

 

Variation of enforcement order

42(1)  The court may, on application by a person with a right under a time with a child clause, make an order varying or terminating an enforcement order or any part of that order.

(2)  Where an application is made to a court of competent jurisdiction to vary or terminate an order in which there is a time with a child clause, that court may vary or terminate an enforcement order.

(3)  Where, as a result of the variation of an order in which there is a time with a child clause, there is an inconsistency between the varied clause and an enforcement order, the provisions of the enforcement order that are inconsistent with the varied clause are void.

(4)  Where an order in which there is a time with a child clause is terminated, an enforcement order made in respect of that clause is terminated.

 

Reasons must be given

43   In a proceeding under section 40, 41 or 42(1), the court shall record its reasons for any order or decision it makes.

 

Assistance of enforcement officer

44(1)  Where an enforcement order contains a provision referred to in section 40(2)(f), an enforcement officer shall, at the request of the applicant and on production of a certified copy of the enforcement order, give assistance to the applicant, comply with the directions of the court and take all reasonable steps to find the child to whom the enforcement order relates and to bring the child to the applicant.

(2)  Where an enforcement officer is denied entry into, or is otherwise unable to enter, premises where the enforcement officer has reasonable and probable grounds for believing that the child to whom the enforcement order relates may be found, the enforcement officer may, if the enforcement officer wishes to enter the premises, apply to a justice of the peace for an order authorizing the enforcement officer to enter the premises and to bring the child to the applicant.

(3)  Despite subsection (1) or (2), an enforcement officer is not required to bring the child to whom the enforcement order relates to the applicant if the enforcement officer determines that, in the immediate circumstances, it is not in the best interests of the child.

(4)  Where the justice of the peace makes an order under subsection (2) authorizing entry into a premises, the enforcement officer may enter the premises with such assistance and using such force as is reasonably necessary.

(5)  An entry referred to in subsection (4) may be made only between the hours of 8 a.m. and 9 p.m. unless the justice of the peace, in the order under subsection (2), authorizes entry at another time.

(6)  No action lies against an enforcement officer, or a person giving assistance under subsection (4), by reason of anything done or caused, permitted or authorized to be done, attempted to be done or omitted to be done by any of them in good faith pursuant to or in the exercise or purported exercise of any power conferred by this Division.

2003 cF‑4.5 s44;2009 c48 s4

Report by enforcement officer

45(1)  The enforcement officer shall prepare a report in accordance with the regulations that includes a statement that describes the events and circumstances relating to the assistance that was provided.

(2)  A copy of the report prepared by the enforcement officer must be made available to the applicant and the respondent.

(3)  A report referred to in subsection (1) purporting to be signed by the enforcement officer is admissible in evidence at any subsequent proceedings relating to the enforcement of the time with a child clause as prima facie proof of the contents of the report without proof of the signature or official character of the person signing the report.

(4)  An enforcement officer who has prepared a report under subsection (1) may be required to attend a proceeding under this Division only with the leave of the court.

Division 5
Effect of Divorce Proceedings

Effect of divorce proceedings

45.1   The jurisdiction of the court to make or vary a guardianship order, parenting order or contact order continues in effect unless and until a court makes an interim or final order with respect to custody or access in divorce proceedings under the Divorce Act (Canada).

2010 c16 s1(23)

Part 3
Support Obligations

Definitions

46   In this Part,

                           (a)    “adult interdependent partner” includes a former adult interdependent partner;

                           (b)    “child” means a person

                                  (i)    who is under the age of 18 years, or

                                (ii)    who is at least 18 years of age but not older than 22 years of age, and is unable to withdraw from his or her parents’ charge because he or she is a full-time student as determined in accordance with the prescribed guidelines;

                           (c)    “child support agreement” means an agreement entered into under section 53;

                           (d)    “child support order” means, except in sections 55.1 to 55.8, an order made under section 50;

                           (e)    “prescribed guidelines” means the guidelines established under the regulations;

                            (f)    “spousal or adult interdependent partner support order” means an order made under section 57;

                           (g)    “spouse” includes a former spouse and a party to a marriage;

                           (h)    “support order” means

                                  (i)    a child support order, or

                                (ii)    a spousal or adult interdependent partner support order,

                                    and includes an interim order for support made under section 84.

2003 cF‑4.5 s46;2008 c15 s2;2010 c16 s1(24)

Division 1
Support of Child

Definition

47   In this Division, except in section 51(5), “parent” includes a person standing in the place of a parent.

2003 cF‑4.5 s47;2010 c16 s1(25)

Standing in the place of a parent

48(1)  A person is standing in the place of a parent if the person

                           (a)    is the spouse of a parent of the child or is or was in a relationship of interdependence of some permanence with a parent of the child, and

                           (b)    has demonstrated a settled intention to treat the child as the person’s own child.

(2)  In determining whether a person has demonstrated a settled intention to treat the child as the person’s own child, the court may consider any or all of the following factors:

                           (a)    the child’s age;

                           (b)    the duration of the child’s relationship with the person;

                           (c)    the nature of the child’s relationship with the person, including

                                  (i)    the child’s perception of the person as a parental figure,

                                (ii)    the extent to which the person is involved in the child’s care, discipline, education and recreational activities, and

                               (iii)    any continuing contact or attempts at contact between the person and the child if the person is living separate and apart from the child’s other parent;

                           (d)    whether the person has considered

                                  (i)    applying for guardianship of the child,

                                (ii)    adopting the child, or

                               (iii)    changing the child’s surname to that person’s surname;

                           (e)    whether the person has provided direct or indirect financial support for the child;

                            (f)    the nature of the child’s relationship with any other parent of the child;

                           (g)    any other factor that the court considers relevant.

2003 cF‑4.5 s48;2010 c16 s1(26)

Obligation to support child

49(1)  Every parent has an obligation to provide support for his or her child.

(2)  The obligation under subsection (1) does not extend to a child who

                           (a)    is a spouse or adult interdependent partner, or

                           (b)    is under 18 years of age and has voluntarily withdrawn from his or her parents’ charge and is living an independent lifestyle.

(3)  The obligation under subsection (1) is revived if a child referred to in subsection (2)(b) abandons his or her independent lifestyle and returns to his or her parents’ charge.

(4)  A child referred to in section 46(b)(ii) has an obligation to make a reasonable contribution to his or her own education.

 

Child support order

50(1)  Subject to this section, the court may make an order requiring a parent to provide support for his or her child on application by

                           (a)    the child,

                           (b)    a parent or guardian of the child,

                           (c)    a person who has the care and control of the child, or

                           (d)    any other person with leave of the court where the court considers the application would be in the best interests of the child.

(2)  The court may make a child support order only if

                           (a)    the parents are living separate and apart,

                           (b)    although the parents are not living separate and apart,

                                  (i)    the parents are, in the opinion of the court, experiencing such discord that they cannot reasonably be expected to live together, or

                                (ii)    one parent has without sufficient cause refused or neglected to provide the other parent or the child with the necessaries of life, including food, clothing and shelter, when capable of providing them,

                              or

                           (c)    the child is not in the care and control of the parents.

(3)  In an application for a child support order, the court may, on the respondent’s motion, add as a party any other parent who may have an obligation to provide support for the child.

(4)  The court may make a child support order against more than one parent of the child.

(5)  In an application under this section,  the court may make a finding that a person is a parent and in doing so, the court shall have regard to Part 1, and sections 14 and 15 apply.

(6)  If, on an application under this section, 2 or more persons are alleged to be the biological father of the child and the court

                           (a)    finds on a balance of probabilities that any one of them might be the biological father, and

                           (b)    is unable to determine which person is the biological father,

the court may, for the purposes of this Division only, make a finding that each person who in the opinion of the court might be the biological father is a parent and direct each person to pay child support in an amount the court considers appropriate.

2003 cF‑4.5 s50;2010 c16 s1(27)

Determining child support

51(1)  In making a child support order, the court shall do so in accordance with the prescribed guidelines.

(2)  Notwithstanding subsection (1), a court may award an amount that is different from the amount that would be determined in accordance with the prescribed guidelines if the court is satisfied

                           (a)    that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents or the division or transfer of their property directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child, and

                           (b)    that the application of the prescribed guidelines would result in an amount of child support that is inequitable given those special provisions

and the court shall record the reasons for its decision.

(3)  Notwithstanding subsection (1), a court may award an amount that is different from the amount that would be determined in accordance with the prescribed guidelines on the consent of all parties if it is satisfied that reasonable arrangements have been made for the support of the child.

(4)  For the purposes of subsection (3), in determining whether reasonable arrangements have been made for the support of a child, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount determined in accordance with the prescribed guidelines.

(5)  Notwithstanding subsection (1), the obligation of a parent to provide child support outweighs the obligation of a person standing in the place of a parent to provide child support and in determining the amount and duration of child support a person standing in the place of a parent must pay, the court shall consider the following:

                           (a)    the amount determined in accordance with the prescribed guidelines;

                           (b)    the amount of child support that is being paid or should be paid by either or both parents of the child;

                           (c)    the duration of the relationship between the person standing in the place of a parent and the child for whose benefit the order is sought;

                           (d)    any other factor that the court considers relevant.

(6)  Repealed 2005 c10 s10.

2003 cF‑4.5 s51;2005 c10 s10;2010 c16 s1(28)

Change in care and control

52   A child support order or a child support agreement may provide that a payment for the support of a child must be made to any person who assumes the care and control of the child notwithstanding that the person is not a party to the order or agreement.

 

Child support agreement

53(1)  A parent of a child may enter into a written agreement with

                           (a)    another parent of the child, or

                           (b)    a person who has the care and control of the child,

whereby the parent agrees to pay support for the child.

(2)  An agreement under subsection (1) does not preclude a person from applying for a child support order.

(3)  A child support order terminates any previous child support agreement.

 

Suspension of child support order or agreement

54(1)  Except where the court orders otherwise, where a child support order or a child support agreement is made when the child’s parents are living separate and apart and the parents resume living together, then, after the parents have lived together again for 30 days, the order or agreement is suspended.

(2)  Child support is not payable during any period that a child support order or child support agreement is suspended under subsection (1).

(3)  A child support order or a child support agreement ceases to be suspended under subsection (1) if the parents resume living separate and apart.

(4)  This section does not apply where the child support is being paid to the child or to a person who is not a parent of the child.

 

Termination of child support order

55(1)  Except where the court orders otherwise, a child support order terminates on the adoption or death of the child.

(2)  The termination of a child support order does not affect any arrears owing under the order before it is terminated.

 

Division 1.1
Child Support Recalculation Program

Definitions

55.1   In this Division,

                           (a)    “child support guidelines” means

                                  (i)    the Alberta Child Support Guidelines (AR 147/2005),

                                (ii)    the Federal Child Support Guidelines under the Divorce Act (Canada), or

                               (iii)    child support guidelines established by another province under which child support is calculated in a manner that is substantially similar to the manner in which child support is calculated under the Alberta Child Support Guidelines (AR 147/2005);

                           (b)    “child support order” means an order respecting child support made under

                                  (i)    this Act,

                                (ii)    the Divorce Act (Canada), or

                               (iii)    an enactment of another province respecting family law if the order has been registered under section 18 of the Interjurisdictional Support Orders Act,

                                    but does not include a child support order that has no force or effect until it is confirmed by a court with jurisdiction to do so;

                           (c)    “Director” means the Director of the recalculation program designated under section 55.11;

                           (d)    “payor” means a person who is obligated to pay support for a child pursuant to a child support order;

                           (e)    “recalculated amount” means the amount of child support determined after recalculation by the recalculation program;

                            (f)    “recalculation program” means the child support recalculation program established by section 55.11;

                           (g)    “recipient” means a person who has a right to receive support for a child under a child support order.

2008 c15 s3

Child support recalculation program

55.11(1)  There is hereby established a child support service to be known as the child support recalculation program.

(2)  The recalculation program may, if a child support order meets the criteria established in the regulations under this Division, recalculate annually

                           (a)    the amount of child support specified in the child support order that was determined in accordance with the applicable table of the child support guidelines, and

                           (b)    the proportionate shares of any special or extraordinary expenses included in the child support order.

(3)  The recalculation program shall perform a recalculation under subsection (2)

                           (a)    subject to section 55.51, on the basis of updated income information, and

                           (b)    in accordance with this Division, the regulations under this Division and the child support guidelines.

(4)  The Minister may by order designate any individual as the Director of the recalculation program.

2008 c15 s3

Registration

55.2(1)  Either a payor or a recipient may apply to register a child support order with the recalculation program in the manner set out in the regulations under this Division.

(2)  A child support order may be withdrawn from the recalculation program in accordance with the regulations under this Division.

2008 c15 s3;2013 cC‑12.5 s12

Prohibiting recalculation

55.21   If a court determines that recalculation of the amount of child support under a child support order by the recalculation program is inappropriate, the court may order that the amount of child support specified in the child support order is not to be recalculated by the recalculation program.

2008 c15 s3

Waiver

55.3   A payor and a recipient whose child support order has been registered with the recalculation program may agree in writing to waive a particular recalculation in accordance with the regulations under this Division.

2008 c15 s3

Recalculated amount

55.31   Subject to section 55.4, if the recalculated amount differs from the amount of child support currently required to be paid by at least the prescribed amount, the recalculated amount is deemed to be the amount of child support required to be paid under the child support order effective 31 days after the day on which the payor and the recipient are notified in accordance with the regulations under this Division respecting the recalculated amount.

2008 c15 s3

Right to object

55.4(1)  A payor or a recipient who does not agree with the recalculated amount may object, within 30 days after receiving notification respecting the recalculated amount, by commencing an application to a court to vary, suspend or terminate the child support order.

(2)  At the time an application under subsection (1) is commenced, the person who commenced the application shall notify the recalculation program in writing in accordance with the regulations under this Division.

(3)  Where an application has been commenced under subsection (1), the operation of section 55.31 is suspended pending the determination of the application and the child support order continues in effect as if the recalculation had not been made.

(4)  Where an application has been commenced under subsection (1) but

                           (a)    the application is withdrawn, or

                           (b)    the application is dismissed by the court,

the payor becomes liable to pay the recalculated amount in accordance with section 55.31 as if the application had not been commenced.

(5)  For the purposes of this section, commencing an application includes complying with any mandatory prerequisites or requirements of the court in respect of the application.

2008 c15 s3

Income information

55.41(0.1)  In this section and section 55.51, “other party” means

                           (a)    in relation to a person who is a payor under a child support order, a recipient under that order, and

                           (b)    in relation to a person who is a recipient under a child support order, a payor under that order.

(1)  A payor or recipient whose income information is necessary for the purpose of recalculation shall provide to the recalculation program updated income information as required by the regulations under this Division at the times and in the manner set out in the regulations under this Division.

(2)  The requirement for a payor or recipient to provide updated income information under subsection (1) does not replace or affect any other obligation of the payor or recipient to provide financial disclosure or any right of a payor or recipient to request financial disclosure.

(3)  Where a payor or recipient fails to provide the recalculation program with updated income information as required under subsection (1), the other party may provide to the recalculation program updated income information relating to the payor or recipient, and the recalculation program may, if the Director considers it appropriate to do so, rely on the information for the purpose of recalculation.

2008 c15 s3;2013 cC‑12.5 s12

Contact information

55.5  Both the payor and the recipient shall provide their current contact information to the recalculation program at the times and in the manner set out in the regulations under this Division.

2008 c15 s3

Recalculation without updated income information

55.51(1)  Subject to subsection (4), where a payor or recipient fails to provide the recalculation program with updated income information as required under section 55.41(1) and

                           (a)    no updated income information relating to the payor or recipient is provided under section 55.41(3) by the other party, or

                           (b)    updated income information relating to the payor or recipient is provided under section 55.41(3) by the other party but the Director does not consider it appropriate to rely on the information,

the payor or recipient is deemed to have provided updated income information that discloses income in accordance with subsection (2).

(2)  For the purposes of this section, the income of the payor or recipient, as the case may be, is the sum of

                           (a)    the payor’s or recipient’s income used to determine the current amount of child support payable, whether that income was

                                  (i)    set out in a court order,

                                (ii)    set out in an administrative recalculation of an amount of child support prepared by a provincial child support service of another jurisdiction in Canada,

                               (iii)    previously determined by the recalculation program from income information required to be provided under section 55.41(1) or provided by the other party and relied on under section 55.41(3), or

                               (iv)    previously determined by the recalculation program in accordance with this section,

                              and

                           (b)    the amount equal to the product obtained by multiplying the payor’s or recipient’s income described in clause (a) by the applicable percentage determined in accordance with subsection (3).

(3)  For the purpose of subsection (2)(b), the applicable percentage shall be determined based on the amount of time that has elapsed since the payor’s or recipient’s income was last determined in accordance with subsection (2)(a), as follows:

                           (a)    where less than 1 year has elapsed, 10%;

                           (b)    where a year or more but less than 2 years has elapsed, 13%;

                           (c)    where 2 years or more but less than 3 years has elapsed, 16%;

                           (d)    where 3 years or more but less than 4 years has elapsed, 19%;

                           (e)    where 4 years or more but less than 5 years has elapsed, 22%;

                            (f)    where 5 years or more has elapsed, 25%.

(4)  Where, in respect of a child support order made under the Divorce Act (Canada), a payor or a recipient fails to provide the recalculation program with updated income information as required under section 55.41(1), and

                           (a)    no updated income information relating to the payor or recipient is provided under section 55.41(3) by the other party, or

                           (b)    updated income information relating to the payor or recipient is provided under section 55.41(3) by the other party but the Director does not consider it appropriate to rely on the information,

the Director may apply to the Court on the notice the Court directs for an order respecting the determination of the income of the payor or the recipient for the purposes of recalculation.

2008 c15 s3;2009 c21 s2;2013 cC‑12.5 s12

Protection from liability

55.6   No action or proceeding in respect of any act or thing done or omitted to be done or purported to be done or omitted to be done in good faith under this Division or the regulations may be brought against the Director or any person acting under the authority or direction of the Director in the exercise or performance or intended exercise or performance of a power, duty or function under this Division.

2008 c15 s3

Confidentiality

55.61(1)  A person’s right of access under Part 1 of the Freedom of Information and Protection of Privacy Act to records in the custody or under the control of the recalculation program does not extend to personal information of another person contained in those records.

(2)  Subsection (1) prevails despite section 6(1) of the Freedom of Information and Protection of Privacy Act.

2008 c15 s3

Use and disclosure of information

55.7(1)  The Director shall not use or disclose personal information that is collected for the purposes of the recalculation program except where the use or disclosure is

                           (a)    necessary for the purpose of administering the recalculation program,

                           (b)    authorized by this Act and the regulations under this Division, or

                           (c)    otherwise required by an enactment of Alberta or Canada.

(2)  Subsection (1) prevails despite sections 39(1) and 40(1) of the Freedom of Information and Protection of Privacy Act.

2008 c15 s3

Service fee

55.71(1)  The Director may charge a service fee in accordance with the regulations under this Division for services provided by the recalculation program.

(2)  A service fee charged under subsection (1) may be collected by the Director of Maintenance Enforcement in the same manner as fees and charges payable to the Director of Maintenance Enforcement under the Maintenance Enforcement Act.

(3)  No fees or charges of any kind are payable by the Director

                           (a)    for access or transfer to the Director of any information or record that is necessary for the purpose of administering this Division, or

                           (b)    for or in connection with anything that a person is required to do under this Division.

2008 c15 s3

Regulations

55.8   The Lieutenant Governor in Council may make regulations

                           (a)    respecting the recalculation program and its structure, operations, duties and functions;

                           (b)    respecting applications for registration of child support orders with the recalculation program and respecting the circumstances in which the recalculation program may decline to register a child support order;

                           (c)    respecting the requirements for the withdrawal of child support orders, including which persons may withdraw a child support order, from the recalculation program;

                           (d)    establishing criteria for determining whether a child support order is eligible for recalculation by the recalculation program;

                           (e)    prescribing an amount for the purposes of section 55.31;

                            (f)    respecting the application of some or all of the provisions of this Division to child support agreements, including establishing criteria for determining whether a child support agreement is eligible for recalculation by the recalculation program;

                           (g)    respecting the manner in which and the times at which a payor and a recipient may agree to waive a particular recalculation;

                           (h)    respecting notification that must be provided to or by the recalculation program under sections 55.31 and 55.4;

                            (i)    respecting the information that payors and recipients are required to provide under sections 55.41 and 55.5;

                            (j)    respecting the manner in which and the time within which information may or must be provided to or by the recalculation program;

                           (k)    respecting the circumstances in which the recalculation program may decline to recalculate child support;

                            (l)    respecting service fees;

                          (m)    respecting the collection, use and disclosure of personal information by the recalculation program, including purposes for which information may be used or disclosed by the Director;

                           (n)    defining terms used but not defined in this Division.

2008 c15 s3;2013 cC‑12.5 s12

Division 2
Support of Spouse or Adult
Interdependent Partner

Obligation to support spouse or adult interdependent partner

56   Subject to this Division, every spouse or adult interdependent partner has an obligation to provide support for the other spouse or adult interdependent partner.

2003 cF‑4.5 s56;2010 c16 s1(29)

Spousal or adult interdependent partner support order

57(1)  Subject to this section, the court may, on application by a spouse or adult interdependent partner, make an order requiring a spouse or adult interdependent partner to provide support for the other spouse or adult interdependent partner.

(2)  The court may make an order under this section only if

                           (a)    in the case of spouses,

                                  (i)    one or both of the spouses have obtained a declaration of irreconcilability under section 83,

                                (ii)    the spouses are living separate and apart, or

                               (iii)    although the spouses are not living separate and apart,

                                      (A)    the spouses are, in the opinion of the court, experiencing such discord that they cannot reasonably be expected to live together as spouses, or

                                      (B)    one spouse has without sufficient cause refused or neglected to provide the other spouse with the necessaries of life, including food, clothing and shelter, when capable of providing them;

                           (b)    in the case of adult interdependent partners,

                                  (i)    one or both of the adult interdependent partners have obtained a declaration of irreconcilability under section 83,

                                (ii)    the adult interdependent partners are living separate and apart, or

                               (iii)    although the adult interdependent partners are not living separate and apart,

                                      (A)    the adult interdependent partners are, in the opinion of the court, experiencing such discord that they cannot reasonably be expected to live together as adult interdependent partners, or

                                      (B)    one adult interdependent partner has without sufficient cause refused or neglected to provide the other adult interdependent partner with the necessaries of life, including food, clothing and shelter, when capable of providing them.

 

Factors

58   In making a spousal or adult interdependent partner support order, the court shall consider

                           (a)    the conditions, means, needs and other circumstances of each spouse or adult interdependent partner, including

                                  (i)    the length of time the spouses or adult interdependent partners lived together,

                                (ii)    the functions performed by each spouse or adult interdependent partner during the period they lived together, and

                               (iii)    any order or arrangement relating to the support of the spouses or adult interdependent partners,

                           (b)    any legal obligation of the spouse or adult interdependent partner having the support obligation under the order to provide support for any other person,

                           (c)    the extent to which any other person who is living with the spouse or adult interdependent partner having the support obligation under the order contributes towards household expenses and thereby increases the ability of that spouse or adult interdependent partner to provide support, and

                           (d)    the extent to which any other person who is living with the spouse or adult interdependent partner who is to receive support under the order contributes towards household expenses and thereby reduces the financial needs of that spouse or adult interdependent partner.

2003 cF‑4.5 s58;2010 c16 s1(30)

Misconduct

59   In making a spousal or adult interdependent partner support order, the court shall not take into consideration any misconduct of a spouse or adult interdependent partner, except conduct that

                           (a)    arbitrarily or unreasonably precipitates, prolongs or aggravates the need for support, or

                           (b)    arbitrarily or unreasonably affects the ability of the spouse or adult interdependent partner having the support obligation under the order to provide the support.

 

Objectives of spousal or adult interdependent partner support order

60   A spousal or adult interdependent partner support order should

                           (a)    recognize any economic advantages and disadvantages to the spouses or adult interdependent partners arising from the relationship or its breakdown,

                           (b)    apportion between the spouses or adult interdependent partners any financial consequences arising from the care of any child of the relationship over and above the obligation apportioned between the spouses or adult interdependent partners pursuant to a child support order or a child support agreement,

                           (c)    relieve any economic hardship of the spouses or adult interdependent partners arising from the breakdown of the relationship, and

                           (d)    insofar as practicable, promote the economic self‑sufficiency of each spouse or adult interdependent partner within a reasonable period of time.

 

Priority of child support

61(1)  Where the court is considering an application for spousal or adult interdependent partner support and an application for child support, the court shall give priority to child support in determining the applications.

(2)  If, as a result of giving priority to child support, the court is not able to make a spousal or adult interdependent partner support order, or the court makes a spousal or adult interdependent partner support order in an amount that is less than it otherwise would have been, the court shall record its reasons for doing so.

(3)  If, as a result of priority being given to child support, a spousal or adult interdependent partner support order was not made or the amount of a spousal or adult interdependent partner support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change in circumstances for the purposes of applying for spousal or adult interdependent partner support or a variation order in respect of the spousal or adult interdependent partner support order, as the case may be.

 

Spousal or adult interdependent partner support agreement

62(1)   Spouses or adult interdependent partners may enter into a written agreement in which

                           (a)    one spouse or adult interdependent partner agrees to pay support for the other spouse or adult interdependent partner, or

                           (b)    one spouse or adult interdependent partner agrees to release the other spouse or adult interdependent partner from liability for support.

(2)  An agreement under subsection (1) cannot vary an existing spousal or adult interdependent partner support order.

(3)  The court may not make a spousal or adult interdependent partner support order that differs from an agreement referred to in subsection (1) unless the court is satisfied that the agreement is inequitable and any of the following circumstances exist:

                           (a)    the spouse or adult interdependent partner who challenges the agreement or any part of the agreement entered into the agreement without receiving independent legal advice;

                           (b)    in the case of spouses, a consideration in making the agreement or any part of the agreement was the removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith;

                           (c)    in the case of adult interdependent partners, after they entered into the agreement, they married each other;

                           (d)    one of the spouses or adult interdependent partners is in receipt of government financial assistance without reasonable support from the other spouse or adult interdependent partner.

 

Termination of spousal or adult interdependent partner support order

63(1)  Except where the court orders otherwise, a spousal or adult interdependent partner support order terminates on the death of the spouse or adult interdependent partner in respect of whom support is paid.

(2)  The termination of a spousal or adult interdependent partner support order does not affect any arrears owing under the order before it is terminated.

 

Division 3
General Support Matters

Enforcement of support agreement

64   For enforcement purposes under the Maintenance Enforcement Act, a child support agreement or a spousal or adult interdependent partner support agreement must be in the form prescribed or approved under the Maintenance Enforcement Act.

 

Disclosure of financial information

65(1)  In an application under this Part, a party shall, on the written request of another party, provide the other party with financial information as provided for by the regulations that is necessary for the determination of support.

(2)  If a party fails to comply with a request under subsection (1), the court may

                           (a)    proceed to hear the application for support, in the course of which it may draw an adverse inference against the party and impute income to that party in such amount as it considers appropriate,

                           (b)    order the party to comply with the request under subsection (1), or

                           (c)    order an employer, partner or principal of the party or any other person to provide to the other party or the court, or both, any or all of the financial information provided for by the regulations that is within the knowledge of or shown on a record in the custody or under the control of the employer, partner, principal or other person.

(3)  If a party fails to comply with an order under subsection (2)(b), the court may do one or more of the following:

                           (a)    dismiss any or all of the party’s application;

                           (b)    make a contempt order against the party;

                           (c)    proceed to hear the application for support, in the course of which it may draw an adverse inference against the party and impute income to that party in such amount as it considers appropriate;

                           (d)    award costs in favour of the other party up to an amount that fully compensates the other party for all costs incurred in the proceeding.

(4)  After a support order has been made, a party shall, on the written request of another party not more than once in a calendar year, and only for the purposes of support, provide the other party with financial information provided for by the regulations that is necessary for the determination of support.

(5)  If a party fails to comply with a request under subsection (4), the court may, on application,

                           (a)    order the party to comply with the request under subsection (4), or

                           (b)    order an employer, partner or principal of the party or any other person to provide to the other party or the court, or both, any or all of the financial information provided for by the regulations that is within the knowledge of or shown on a record in the custody or under the control of the employer, partner, principal or other person.

(6)  If a party fails to comply with an order under subsection (5)(a), the court may do one or both of the following:

                           (a)    make a contempt order against the party;

                           (b)    award costs in favour of the other party up to an amount that fully compensates the other party for all costs incurred in the proceeding.

(7)  The court may, on application by any person, order that any or all documents received by the court under this section are not available for inspection by any person, other than the parties, except on order of the court.

(8)  Financial information that is provided by an employee, partner or principal of a party or by any other person pursuant to subsection (2)(c) or (5)(b) may be received in evidence as prima facie proof of its contents.

(9)  This section prevails despite any law, except in respect of the privilege that exists in respect of a solicitor and the solicitor’s client.

2003 cF‑4.5 s65;2005 c10 s11

Terms and conditions of support order

66(1)  In this section,

                           (a)    “birth mother”, for the purposes of subsection (5), includes an expectant birth mother;

                           (b)    “support recipient” means a person for whom support is sought or obtained.

(2)  The court may make a support order for a definite or indefinite period or until a specified event occurs and may impose terms, conditions and restrictions in connection with the order as the court considers appropriate.

(3)  Without limiting the generality of subsection (2), the court may order one or more of the following:

                           (a)    that an amount be paid in a lump sum or periodically, either for an indefinite or limited period or until a specified event occurs;

                           (b)    that an amount be paid or held in trust on any conditions the court considers appropriate;

                           (c)    that support be paid with respect to any period before the date of the application;

                           (d)    that property or an interest in property be transferred to or held in trust for or vested in the support recipient, whether absolutely, for life or for a term of years;

                           (e)    that some or all of the money payable under the order be paid to another person for the benefit of the support recipient;

                            (f)    with respect to a child support order, that some or all of the support be paid directly to a child as defined in section 46(b)(ii);

                           (g)    that payment under the order be secured by a charge on property or otherwise.

(4)  In a proceeding for a support order, the court may grant an injunction restraining the respondent from disposing of any property.

(5)  The court may, in a spousal or adult interdependent partner support order or a child support order, but not in both, direct the other parent of a child to pay reasonable expenses for the support of the birth mother of the child

                           (a)    during a period not exceeding 3 months preceding the birth of the child,

                           (b)    at the birth of the child, and

                           (c)    during a period after the birth of the child,

whether or not the child survives the birth.

(6)  No order may be made in respect of an expense referred to in subsection (5) unless the application for the order is commenced within 2 years after the expense is incurred.

(7)  An order made under subsection (3)(d) requiring a person to transfer or convey property may authorize another person to execute the transfer or conveyance on behalf of the person.

(8)  An order made under subsection (3)(g) charging real property for security of payment

                           (a)    is registerable in any land titles office the same way as a mortgage of the property described in it, and

                           (b)    does not affect an interest in the property acquired in good faith and for value without notice before the registration.

(9)  An order made under subsection (3)(g) requiring a person to give a mortgage or other security on property may authorize another person to execute the mortgage or security on behalf of the person.

(10)  On default of payment of an amount charged on property pursuant to an order made under subsection (3)(g), the court may

                           (a)    appoint a receiver of rents, profits or other money receivable from the property or interest in the property,

                           (b)    order the sale of the property or interest in the property on notice to all persons having an interest in the property,

                           (c)    if a receiver is appointed or a sale is ordered, direct that any surplus funds be paid into court as security for any future obligation under the order, and

                           (d)    make any other order that the court considers appropriate.

(11)  Unless the court orders otherwise, an order for security under this section has effect as security only and the person liable under a support order is and remains personally liable for payments due under the order.

2003 cF‑4.5 s66;2005 c10 s12;2010 c16 s1(32)

Definitions

67(1)  In this section and sections 68 to 74, “family home” means property

                           (a)    that is owned or leased by one or both spouses or adult interdependent partners,

                           (b)    that is or has been occupied by the spouses or adult interdependent partners as their home, and

                           (c)    that is

                                  (i)    a house, or part of a house, that is a self‑contained dwelling unit,

                                (ii)    part of business premises used as living accommodation,

                               (iii)    a mobile home,

                               (iv)    a residential unit as defined in the Condominium Property Act, or

                                 (v)    a suite.

(2)  In sections 73 and 74, “household goods” means personal property

                           (a)    that is owned by one or both spouses or adult interdependent partners, and

                           (b)    that was ordinarily used or enjoyed by one or both spouses or adult interdependent partners or one or more of the children residing in the family home, for transportation, household, educational, recreational, social or esthetic purposes.

2003 cF‑4.5 s67;2010 c16 s1(33)

Grant of exclusive possession of home

68(1)  In making a support order under Division 1 or 2, the court may, as part of that order, order any one or more of the following:

                           (a)    direct that a spouse or adult interdependent partner be given exclusive possession of the family home;

                           (b)    direct that a spouse or adult interdependent partner be evicted from the family home;

                           (c)    restrain a spouse or adult interdependent partner from entering or attending at or near the family home.

(2)  In addition to making an order under subsection (1), the court may by order give a spouse or adult interdependent partner possession of as much of the property surrounding the family home as is necessary, in the opinion of the court, for the use and enjoyment of the family home.

(3)  An order under this section may be made subject to any conditions and for any time that the court considers necessary.

(4)  An order under this section does not create a subdivision within the meaning of Part 17 of the Municipal Government Act.

2003 cF‑4.5 s68;2010 c16 s1(40)

Matters to be considered

69   In exercising its powers under sections 67 to 76, the court shall have regard to

                           (a)    the availability of other accommodation within the means of both the spouses or adult interdependent partners,

                           (b)    the needs of any children residing in the family home,

                           (c)    the financial position of each of the spouses or adult interdependent partners,

                           (d)    any order made by a court with respect to the property or the support or maintenance of one or both of the spouses or adult interdependent partners, and

                           (e)    any restrictions or conditions of any lease involving the family home, if applicable.

2003 cF‑4.5 s69;2010 c16 s1(40)

Precedence of order

70   An order made under sections 67 to 76 has effect notwithstanding a subsequent order in favour of one of the spouses or adult interdependent partners for the disposition of the family home.

2003 cF‑4.5 s70;2010 c16 s1(40)

Registration of order for possession

71(1)  If an order is made under section 68 with respect to a family home and the family home or part of it is real property that

                           (a)    is owned by one or both of the spouses or adult interdependent partners,

                           (b)    is leased by one or both of the spouses or adult interdependent partners for a term of more than 3 years, or

                           (c)    is the subject of a life estate in favour of one or both of the spouses or adult interdependent partners,

the order may be registered with the Registrar of Land Titles.

(2)  An order registered under this section binds the estate or interest of every description that a spouse or adult interdependent partner has in the property to the extent stipulated in the order.

(3)  A spouse or adult interdependent partner against whose estate or interest an order is registered under this section may only dispose of or encumber that spouse’s or adult interdependent partner’s estate or interest with the consent in writing of the spouse or adult interdependent partner in possession or under an order of the court.

2003 cF‑4.5 s71;2010 c16 s1(40)

Spouse as tenant

72   If a family home is leased by one or both of the spouses or adult interdependent partners under an oral or written lease and the court makes an order giving possession of the family home to one spouse or adult interdependent partner, that spouse or adult interdependent partner is deemed to be the tenant for the purposes of the lease.

2003 cF‑4.5 s72;2010 c16 s1(40)

Exclusive use of household goods

73(1)  In making an order under Division 1 or 2, the court may order that a spouse or adult interdependent partner be given the exclusive use and enjoyment of any or all of the household goods.

(2)  An order under subsection (1) may be made subject to any conditions and for any time that the court considers necessary.

Registration of financing statement re household goods

74   If the court

                           (a)    makes an order under section 68 and the family home is a mobile home owned or leased by one or both of the spouses or adult interdependent partners, or

                           (b)    makes an order with respect to household goods under section 73,

a financing statement may be registered in the Personal Property Registry under the Personal Property Security Act.

2003 cF‑4.5 s74;2010 c16 s1(40)

Effect of registration

75(1)  If a financing statement is registered under section 74, the financing statement

                           (a)    is notice of the interests of the spouses and adult interdependent partners in the property described in the financing statement during the time that the registration is effective, and

                           (b)    takes effect, as against subsequent creditors, purchasers and mortgagees, only from the date of registration of the financing statement.

(2)  A spouse or adult interdependent partner against whose interest in property a financing statement is registered under section 74 may only dispose of or encumber that interest with the consent in writing of the spouse or adult interdependent partner in possession or under an order of the court.

 

Cancellation of registration of order

76(1)  The person against whose property an order is registered under section 71 may apply to the court for an order directing the Registrar of Land Titles to cancel the registration.

(2)  The person against whose property an order is registered under section 74 may apply to the court for an order cancelling the registration.

(3)  The court may make an order under this section on any conditions the court considers necessary.

 

Variation of support order

77(1)  In this section, “variation order” means an order made under subsection (2).

(2)  The court may, on application by a person referred to in subsection (3), make an order varying, suspending or terminating a support order or any part of that order, prospectively or retroactively.

(3)  The following persons may make an application under subsection (2):

                           (a)    in the case of a child support order, a person referred to in section 50(1);

                           (b)    in the case of a spousal or adult interdependent partner support order, a person referred to in section 57(1).

                           (c)    repealed 2010 c16 s1(34).

(4)  Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that

                           (a)    a change of circumstances, including those provided for in the prescribed guidelines, has occurred since the making of the order or the last variation order made in respect of that order, or

                           (b)    evidence of a substantial nature that was not available at the previous hearing has become available,

and in making the variation order, the court shall consider that change of circumstances or evidence.

(5)  Before the court makes a variation order in respect of a spousal or adult interdependent partner support order, the court shall satisfy itself that

                           (a)    a change in the condition, means, needs or other circumstances of either spouse or adult interdependent partner has occurred since the making of the order or the last variation order made in respect of that order, or

                           (b)    evidence of a substantial nature that was not available at the previous hearing has become available,

and in making the variation order, the court shall consider that change of circumstances or evidence.

(6)  Despite subsection (5), if a spousal or adult interdependent partner support order provides for support for a definite period or until a specified event occurs, the court may not, on an application commenced after the expiration of that period or the occurrence of that event, make a variation order for the purpose of resuming that support unless the court is satisfied that

                           (a)    a variation order is necessary to relieve the economic hardship from a change described in subsection (5)(a) that is related to the breakdown of the relationship between the spouses or the adult interdependent partners, and

                           (b)    the changed circumstances, had they existed at the time of the making of the spousal or adult interdependent partner support order or the last variation order made in respect of that order would likely have resulted in a different order.

(7)  The court shall consider the same factors, pursue the same objectives, and use the same method to determine support with respect to an application to vary a support order as it does with respect to an application for a support order.

(8)  The court may include in a variation order any provision that could have been included in the support order in respect of which the variation order is sought.

(9)  The court may vary a support order pursuant to this section notwithstanding that it has been filed with the Court of Queen’s Bench under the Maintenance Enforcement Act.

2003 cF‑4.5 s77;2005 c10 s13;2010 c16 s1(34)

Competent and compellable witness

78  Despite any other enactments, in an application under Division 1, a respondent is a competent and compellable witness, and if called as a witness by the applicant the respondent may, without notice or the payment of any fees, expenses and allowances payable to witnesses, be cross‑examined by or on behalf of the applicant, but the applicant is not bound by the respondent’s evidence by reason only of having called the respondent as a witness.

2003 cF‑4.5 s78;2009 c53 s65

Applications may not be combined

79   No application under this Part that is brought by the Director pursuant to the Income and Employment Supports Act may be combined with any other application under this Act except an application for a declaration of parentage under Part 1.

 

Support order binds estate

80(1)  Unless the support order provides otherwise, a support order binds the estate of the person having the support obligation.

(2)  Unless the support agreement provides otherwise, a support agreement binds the estate of the person having the support obligation.

(3)  This section applies to support agreements entered into after this section comes into force.

 

Variation of support obligation where payor deceased

80.1(1)  This section applies where

                           (a)    there is a support obligation in a support order or support agreement,

                           (b)    the support order or support agreement binds the estate of the person having the support obligation, and

                           (c)    the person having the support obligation has died.

(2)  The court may, on application by a person referred to in subsection (3), make an order varying or terminating a support order or a support agreement.

(3)  The following persons may make an application under subsection (2):

                           (a)    in the case of a child support order or support agreement, a person referred to in section 50(1);

                           (b)    in the case of a spousal or adult interdependent partner support order or support agreement, a person referred to in section 57(1);

                           (c)    the personal representative of the person having the support obligation under the support order or support agreement.

(4)  Before the court makes an order under subsection (2) in respect of a child support order or support agreement, the court shall consider

                           (a)    the prescribed guidelines,

                           (b)    any changes in the conditions, means, needs or other circumstances of the child, the deceased person and the other parent of the child since the making or last variation of the child support order or support agreement,

                           (c)    any obligation of the deceased person or his or her estate to provide support to another person under a support order or support agreement,

                           (d)    any claims or potential claims for maintenance and support of one or more family members under Division 2 of Part 5 of the Wills and Succession Act,

                           (e)    the assets of the deceased’s estate that are available to pay for any support obligations,

                            (f)    the value of any payment or distribution of any property, including life insurance proceeds and any property acquired by survivorship, to which any person is entitled as a result of the death, and

                           (g)    any other factor the court considers relevant in the circumstances.

(5)  Before the court makes an order under subsection (2) in respect of a spousal or adult interdependent partner support order or support agreement, the court shall consider

                           (a)    any changes in the conditions, means, needs or other circumstances of either spouse or adult interdependent partner since the making or last variation of the spousal or adult interdependent partner support order or support agreement,

                           (b)    any obligation of the deceased person or his or her estate to provide support to another person under a support order or support agreement,

                           (c)    any claims or potential claims for maintenance and support of one or more family members under Division 2 of Part 5 of the Wills and Succession Act,

                           (d)    the assets of the deceased’s estate that are available to pay for any support obligations,

                           (e)    the value of any payment or distribution of any property, including life insurance proceeds and any property acquired by survivorship, to which any person is entitled as a result of the death, and

                            (f)    any other factor the court considers relevant in the circumstances.

(6)  In addition to considering the factors set out in subsection (5), the court shall, before making an order under subsection (2) in respect of a spousal or adult interdependent partner support agreement, consider the circumstances referred to in section 62(3).

(7)  Sections 51 and 77 do not apply to an application under this section.

2010 c16 s1(35);2011 c20 s5

Effect of divorce proceedings

81(1)  The jurisdiction of the court to make or vary a support order continues in effect unless and until a court makes an interim or final order with respect to support in divorce proceedings under the Divorce Act (Canada).

(2)  If a marriage is terminated by divorce and the question of support is not adjudicated in the divorce proceedings, a support order made under this Part continues in force according to its terms.

2003 cF‑4.5 s81;2010 c16 s1(36)

Application for reimbursement of burial expenses

82   The court may, on application by a person who has incurred expenses related to the burial of a child, make an order requiring a parent of the child to reimburse the person for all or part of those expenses.

 

Part 3.1
Canada Pension Plan (Canada)

Definition

82.1  In this Part, “common-law partner” means common-law partner as defined in the Canada Pension Plan (Canada).

2004 c22 s2

Agreement re unadjusted pensionable earnings

82.2  A written agreement between spouses or common-law partners entered into on or after June 4, 1986 may provide that, notwithstanding the Canada Pension Plan (Canada), there be no division between the parties of unadjusted pensionable earnings pursuant to that Act.

2004 c22 s2

Part 4
General Powers of Court

Declaration of irreconcilability

83   The court may, on application by one or both spouses or by one or both adult interdependent partners, make a declaration that the spouses or adult interdependent partners, as the case may be, have no prospect of reconciliation with each other.

Interim order

84(1)  If an application is made for an order under this Act, the court may, as it considers appropriate, make an interim order for the relief applied for pending the determination of the application.

(2)  If an application referred to in subsection (1) is for a support order under Part 3, any interim order must be in accord with the factors and objectives the court must consider in making the support order to the extent that this is practicable given the need for interim support.

 

Consent order or declaration

85(1)  If the parties to an application under this Act

                           (a)    are in agreement respecting the matters in question, and

                           (b)    consent to an order or declaration on the terms agreed on,

the court in its discretion may make the order or declaration without holding a hearing.

(2)  An order or declaration made under subsection (1) has the same force and effect as an order or declaration made after a hearing.

 

Incorporation of terms of agreement in court order

86   Where the court makes an order under this Act, the court may incorporate in its order all or part of a written agreement made by some or all of the parties to the proceeding.

 

Evidence admissible

87   The following are admissible in evidence in a proceeding under this Act:

                           (a)    the record of the evidence given at any other proceeding;

                           (b)    any documents and exhibits received in evidence at any other proceeding;

                           (c)    an order, judgment, finding or declaration of the court.

2003 cF‑4.5 s87;2005 c10 s14

Failure to appear

88(1)  If

                           (a)    an application is made under this Act,

                           (b)    notice of the application has been served on the respondent, and

                           (c)    the respondent fails to appear at the hearing,

the court may proceed in the absence of the respondent and may make any declaration, finding or order that it could have made had the respondent appeared at the hearing.

(2)  If an order or declaration is made pursuant to subsection (1) in an application under Part 1, the respondent may, within 30 days after the date of the order or declaration, apply to the court for a rehearing, and the court may

                           (a)    direct a rehearing and confirm, vary or reverse the order or declaration, and

                           (b)    make any award as to costs of the rehearing that the court considers appropriate.

 

Appeal

89   A party to a proceeding under this Act may appeal a decision of the court in accordance with the regulations.

 

Order or declaration under appeal remains in force

90  An order or declaration under appeal remains in force pending the determination of the appeal unless the court that made the order or declaration or the appeal court orders otherwise.

 

Frivolous or vexatious applications

91(1)  Where the court is satisfied that a person has made a frivolous or vexatious application to the court, the court may prohibit that person from making further applications under this Act without the leave of the court.

(2)  The court, before granting leave under subsection (1), may impose any terms as a condition of granting leave and make any other order in the matter as the court considers appropriate.

 

Stay of proceedings and judgments

92(1)  The court may at any stage in any proceedings before the court and on any conditions that the court considers appropriate grant a stay of proceedings.

(2)  The court may stay an order or declaration made under this Act subject to any terms or conditions that the court considers appropriate.

 

Costs of action

93   Subject to the regulations, the court may at any time in a proceeding before the court and on any conditions that the court considers appropriate award costs in respect of any matters coming under this Act.

 

Application before child is born

94   An application under Part 1 or 2 or Division 1 of Part 3 involving a child may be commenced before the child’s birth, but the application may not be heard before the child’s birth.

 

Child as party

95(1)  Subject to subsection (2), where a child is a party to an application under this Act, the application may be brought or defended

                           (a)    by a guardian of the child in the name of the child, or

                           (b)    by a litigation representative or any individual appointed by the court to act on behalf of the child.

(2)  A child who is or has been a spouse or adult interdependent partner may make, conduct or defend an application under this Act without the intervention of a litigation representative.

(3)  The court may at any time appoint an individual to represent the interests of a child in a proceeding under this Act.

(4)  Where the court appoints an individual under this section, the court shall allocate the costs relating to the appointment among the parties, including the child, if appropriate.

2003 cF‑4.5 s95;2011 c14 s9

Order for relief on behalf of child

96   If the court is satisfied that an application for relief under this Act made to it by or on behalf of a spouse or adult interdependent partner should also have been made on behalf of a child, the court may make an order for relief on behalf of the child.

 

Dispute resolution

97(1)  In a proceeding under this Act, the court may appoint a mediator or a neutral third party to assist the parties in resolving all or part of the matters in issue before the court.

(2)  Where the court appoints a person under subsection (1), the court shall allocate the costs relating to the appointment among the parties.

 

Courses and programs

98   The court may in a proceeding under this Act require the parties to attend any course or program provided for by the regulations and shall allocate the costs of the course or program among the parties.

2003 cF‑4.5 s98;2005 c10 s15

Private hearing

99   The court may, if it is in the best interests of the child or would promote the proper administration of justice, exclude from any proceeding under this Act

                           (a)    any person except the parties to the proceeding and their lawyers, and

                           (b)    a child, whether or not the child is a party, but not the child’s lawyer.

 

Publication and broadcast ban

100   For the purpose of protecting the well-being of the child, the court may, in its discretion, prohibit the publication or broadcast of any report of a proceeding that may identify the child.

 

Part 5
Other Actions

Breach of promise to marry

101(1)  Subject to subsection (2), the common law right to bring and maintain an action for breach of promise to marry is not affected by this Act.

(2)  Only pecuniary damages are recoverable in an action for breach of promise to marry.

 

Gifts in contemplation of marriage

102   If a person makes a gift to another person in contemplation of or conditional on their marriage to each other and the marriage fails to occur, the question of whether the failure was the fault of the person making the gift shall not be considered in determining the right of that person to recover the gift.

 

Actions may not be brought or maintained

103(1)  An action may not be brought or maintained for

                           (a)    restitution of conjugal rights, or

                           (b)    jactitation of marriage.

(2)  An action may not be brought or maintained for damages for

                           (a)    adultery, or

                           (b)    loss of services of a spouse or child as a result of

                                  (i)    the enticement or harbouring of the spouse or child, or

                                (ii)    the seduction of the child.

 

Unity of legal personality abolished

104(1)  Unless another enactment provides otherwise, a person has a legal personality that is independent, separate and distinct from that of the person’s spouse.

(2)  A married person shall be recognized as having legal capacity for all purposes and in all respects as if he or she were an unmarried person and, in particular, has the same right of action in tort against his or her spouse as if they were not married.

(3)  Subsections (1) and (2) operate to make the same law apply, and apply equally, to married men and married women and to remove any difference in it resulting from any common law rule or doctrine.

 

Right to pledge credit abolished

105   A wife’s common law right to pledge her husband’s credit for necessaries after separation is abolished.

 

Implied agency abolished

106   The common law presumption of implied agency of a wife to render her husband liable for necessaries supplied by a third party is abolished.

 

Part 6
Regulations

Regulations

107(1)  The Lieutenant Governor in Council may make regulations

                           (a)    defining “party” for the purposes of this Act;

                        (a.1)    respecting the circumstances under which a lawyer is not required to present a statement to the court pursuant to section 5(2);

                        (a.2)    respecting an agreement referred to in section 20(3)(c);

                           (b)    repealed 2010 c16 s1(37);

                           (c)    respecting the circumstances in which the court may make a guardianship order pursuant to section 23(6);

                           (d)    designating persons or categories of persons for the purposes of section 38(1)(c)(iv);

                           (e)    respecting the report referred to in section 45;

                            (f)    respecting guidelines for the making of child support orders under this Act including, without limitation, the following:

                                  (i)    the way in which the amount of support in an order for child support is to be determined;

                                (ii)    the circumstances in which discretion may be exercised in the making of an order for child support;

                               (iii)    designation of the circumstances that give rise to the making of a variation order in respect of a child support order;

                               (iv)    means for the determination of income for the purposes of the application of the guidelines;

                                 (v)    authorization for a court to impute income for the purposes of application of the guidelines;

                               (vi)    requirements for the production of financial and education information and providing for sanctions when that information is not produced;

                              (vii)    determining what constitutes being a full‑time student for the purposes of section 46(b)(ii);

                             (viii)    regulations respecting any other matters that are necessary or advisable to carry out the purposes of establishing guidelines;

                        (f.1)    respecting financial information to be provided under section 65;

                           (g)    respecting appeals under section 89;

                           (h)    respecting the courses and programs that a party must attend under section 98;

                            (i)    respecting how applications under this Act are to be made and heard and dealing generally with all matters of procedure under this Act;

                            (j)    respecting costs that may be awarded in respect of proceedings under this Act;

                           (k)    respecting the manner of serving notices of applications under this Act;

                            (l)    respecting the serving of copies of orders and other documents under this Act;

                          (m)    respecting forms for the purposes of this Act and providing for their use;

                           (n)    defining any word or phrase that is not defined in this Act for the purposes of this Act or the regulations;

                           (o)    respecting any other matter or thing that the Lieutenant Governor in Council considers appropriate for the purposes of this Act.

(2)  A regulation made under subsection (1)(f) may adopt in whole or in part any regulation, guideline, rule or procedure, including the federal child support guidelines under the Divorce Act (Canada).

2003 cF‑4.5 s107;2005 c10 s16;2009 c53 s6;2010 c16 s1(37);

Part 7
Transitional Provisions, Consequential Amendments, Repeals and Coming into Force

Transitional

108(1)  In this section and section 109, “former Acts” means

                           (a)    the Domestic Relations Act,

                           (b)    the Maintenance Order Act,

                           (c)    the Parentage and Maintenance Act, and

                           (d)    Part 3 of the Provincial Court Act.

(2)  In this section, “support” means support, maintenance or alimony payable for a person or a child of a person or both.

(3)  Despite the repeal of the former Acts, any proceedings commenced under a former Act that are not fully disposed of before the coming into force of this section shall be dealt with and disposed of under that former Act.

(4)  Despite subsection (3),

                           (a)    an action for judicial separation commenced under Part 2 of the Domestic Relations Act that is not fully disposed of before the coming into force of this section shall be continued under this Act as if it were an application for a declaration of irreconcilability under section 83 of this Act;

                           (b)    a proceeding commenced under a former Act that is not fully disposed of before the coming into force of this section may, with the consent of the parties, be dealt with and disposed of under this Act.

(5)  A declaration of parentage under the Domestic Relations Act continues in force according to its terms and may be enforced, varied or set aside as if the declaration of parentage were a declaration of parentage under this Act.

(6)  A declaration of parentage under the Parentage and Maintenance Act continues in force according to its terms and may be enforced or set aside as if the declaration of parentage were a declaration of parentage under this Act.

(7)  An access enforcement order under the Domestic Relations Act continues in force according to its terms and may be enforced, varied or terminated as if the order were an enforcement order made under Division 4 of Part 2.

(8)  An order respecting the custody of or access to a child made under the Domestic Relations Act or the Provincial Court Act continues in force according to its terms and may be enforced, varied, suspended or terminated as if the order were a parenting order or contact order, as the case may be.

(9)  An order referred to in subsection (8) may be interpreted in accordance with the regulations under subsection (13) for the purposes of enforcing, varying, suspending or terminating the order as a parenting order or contact order.

(10)  An order respecting

                           (a)    the support of a child, spouse or adult interdependent partner under the Domestic Relations Act,

                           (b)    the support of a child under the Parentage and Maintenance Act, or

                           (c)    the support of a child, spouse or other person under the Maintenance Order Act

continues in force according to its terms and may be enforced, varied, suspended or terminated and, in the case of an order for child support referred to in clause (a), (b) or (c), recalculated, as if the order were a support order under this Act.

(10.1)  For greater certainty, the publication of a report or notice of a hearing under this Act to enforce, vary, suspend or terminate any order or declaration granted under the Parentage and Maintenance Act is governed by section 100 of this Act instead of section 23(3) of the Parentage and Maintenance Act.

(11)  An agreement made under section 6 of the Parentage and Maintenance Act continues in force according to its terms and may be enforced, varied, suspended or terminated as if the agreement were made under this Act.

(12)  A person

                           (a)    who is a guardian under the Domestic Relations Act immediately before the coming into force of this section is deemed to be a guardian under Part 2 of this Act.

                           (b)    repealed 2004 cM‑18.1 s21.

(13)  The Lieutenant Governor in Council may make regulations respecting the interpretation of orders for the purposes of subsection (9).

2003 cF‑4.5 s108;2004 cM‑18.1 s21;2005 c10 s17;
2008 c15 s4;2010 c16 s1(38)

Transitional regulations

109(1)  The Lieutenant Governor in Council may make regulations

                           (a)    respecting the transition to this Act of anything under the former Acts, including the interpretation of any transitional provision in this Act;

                           (b)    to remedy any confusion, difficulty, inconsistency or impossibility resulting from the transition to this Act from the former Acts.

(2)  A regulation made under subsection (1) may be made retroactive to the extent set out in the regulation.

(3)  A regulation made under subsection (1) is repealed on the earliest of

                           (a)    the coming into force of an amendment that adds the subject‑matter of the regulation to this Act,

                           (b)    the coming into force of a regulation that repeals the regulation made under subsection (1), and

                           (c)    2 years after the regulation comes into force.

(4)  The repeal of a regulation under subsection (3)(b) or (c) does not affect anything done, incurred or acquired under the authority of the regulation before the repeal of the regulation.

 

110   (This section amends the Adult Interdependent Relationships Act; the amendment has been incorporated into that Act.)

111   Repealed 2004 cM‑18.1 s21.

112   (This section amends the Change of Name Act; the amendment has been incorporated into that Act.)

 

113  and 114   Repealed 2008 c31 s64.

115 to 122   (These sections amend other Acts; the amendments have been incorporated into those Acts.)

 

123   Repealed 2004 cP‑44.1 s50.

 

124 to 128   (These sections amend other Acts; the amendments have been incorporated into those Acts.)

Repeals

129   The following Acts are repealed:

                            (a)    Domestic Relations Act;

                           (b)    Domestic Relations Amendment Act, RSA 2000 c11(Supp);

                            (c)    Maintenance Order Act;

                           (d)    Parentage and Maintenance Act.

 

Coming into force

130   This Act comes into force on Proclamation.

 

(NOTE:   Proclaimed in force October 1, 2005, except sections 113(4) and (5) and 114(2), (4), (6) and (7)(b).))