In November 2023, legislative amendments to Part I of the Family Orders and Agreements Enforcement Assistance Act (the "Act") are expected to come into force. The main goal of these amendments is to assist the courts and provincial entities with the determination of fair and accurate amounts of support in situations where a parent fails to comply with their obligations to disclosure financial information. As a result of these amendments, several key changes to the Act's Regulations (the "Current Regulations") are required. The Department of Justice has proposed a new set of Regulations (the "Proposed Regulations") that would replace the Current Regulations made under Part I of the Act.
The Current Regulations
The main objective of Part I of the Act is to help locate individuals in breach of a family order or agreement for parenting, contact, child support, or spousal support. This objective is achieved through the release of information from federal information banks.
The Current Regulations prescribe the process for applying for the release of information under Part I of the Act. They include the application forms that must be submitted and templates for their corresponding affidavits, as well as the manner in which information may be searched for and released by the information banks. Judges, court officials, provincial enforcement services, and peace officers can make an application under Part I of the Act.
The Proposed Regulations
To align with the amendments to Part I of the Act, the Proposed Regulations, list the names of the departments responsible for the federal information banks that will be searched, list the information that will be searched, specify how information will be released, and clarify that the Minister of Justice will be able to assist information bank directors in conducting searches. In addition, the Proposed Regulations allow for a greater number of provincial and territorial entities to submit an application. However, individuals will still not be allowed to apply directly for information themselves. Proposed Regulations also reflect the fact that the information that is sought will vary based on the entity that made the request and the purpose for which it is being requested. This will improve the efficiency of the release of information.
The amendments to Part I of the Act also remove both the requirement for a provincial enforcement service to submit an affidavit and the requirement for information to be provided using a prescribed form. The Proposed Regulations will reflect these changes by removing the affidavit template and the prescribed application form. These changes will have the effect of simplifying the application process and affording the requesting entities more flexibility in making requests. In their place, the Proposed Regulations simply provide a list the information that must be submitted in an application. Without the Proposed Regulations, the amendments to Part I of the Act would be ineffective, as the Act and its regulations would be inconsistent.
The Proposed Regulations attempt to establish safeguards for the privacy of information. The Act requires that a Memorandum of Agreement establishing such safeguards be in place between the federal government and each province and territory before information can be released. Currently, provincial enforcement services can only receive the address of a person to whom the application relates or the name and address of their employer in accordance with Section 16 of the Act. The Proposed Regulations ensure that other information could not be released to a provincial enforcement service until new Memorandums of Agreement are finalized. In 2021, a task group of representatives from the federal government and several provinces drafted a uniform Memorandum of Agreement template. This template is intended to be used for future agreement between the federal government and the individual provinces and territories.
Policy Reasons for Updating the Regulations
The Proposed Regulations aim at better assisting provinces and territories with enforcement by improving the efficiency of support enforcement tools. This is done mainly by allowing for more provincial and territorial entities and designated authorities under interjurisdictional support orders to submit an application and by expanding the scope of information that can be released. The improvement of the process by which fair and accurate support amounts are determined will aid in improving access to justice and helping to reduce poverty for children and parents undergoing separation and divorce.
The Proposed Regulations also reflect the new terminology that appears in the Divorce Act. For example, terms such as "custody" or "access" that were used previously will be replaced with "parenting orders" and "contact orders."
Costs of Implementing the Proposed Regulations
The costs associated with the Proposed Regulations would be minimal. Federally, the costs will be absorbed by a combination of existing resources and funding announced in 2017 aimed at the implementation of amendments to federal support enforcement legislation. However, provincially and territorially, implementation will require costs for system changes and staff training.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
