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| Contact order
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16.1 (1) A court of competent jurisdiction
may, on application by any person other than
a spouse, make an order providing for contact
between any child of the marriage and the
applicant.
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| Interim
contact order
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(2) If an application is made under
subsection (1), the court may, on application
by any person other than a spouse, make an
interim order pending the determination of the
application under subsection (1).
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| Leave of the
court
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(3) A person may not make an application
under subsection (1) or (2) unless he or she
obtains leave of the court.
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| Factors in
granting leave
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(4) In determining whether to grant leave
under subsection (3), the court shall consider
all relevant factors, including
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(a) the significance of the relationship
between the child and the applicant; and
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(b) the necessity of making an order to
facilitate contact between the child and the
applicant.
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| Content of
contact order
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(5) The court, in an order under this section,
may provide for contact between the child and
the applicant 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 that the court considers
appropriate.
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| Terms and
conditions
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(6) The court may make an order under this
section for a definite or indefinite period or
until a specified event occurs, and may impose
terms, conditions or restrictions in connection
with the order as it thinks fit and just.
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| Best interests
of child
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16.2 (1) In making an order under section 16
or 16.1 or paragraph 17(1)(b) or (c), the court
shall take into consideration only the best
interests of the child of the marriage.
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| Factors court
to consider
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(2) In determining what is in the best
interests of the child, the court shall consider
all the needs and circumstances of the child,
including
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(a) the child's physical, emotional and
psychological needs, including the child's
need for stability, taking into account the
child's age and stage of development;
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(b) the benefit to the child of developing and
maintaining meaningful relationships with
both spouses, and each spouse's willingness
to support the development and
maintenance of the child's relationship with
the other spouse;
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(c) the history of care for the child;
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(d) any family violence, including its
impact on
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(i) the safety of the child and other family
members,
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(ii) the child's general well-being,
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(iii) the ability of the person who engaged
in the family violence to care for and
meet the needs of the child, and
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(iv) the appropriateness of making an
order that would require the spouses to
cooperate on issues affecting the child;
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(e) the child's cultural, linguistic, religious
and spiritual upbringing and heritage,
including aboriginal upbringing or
heritage;
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(f) the child's views and preferences, to the
extent that those can be reasonably
ascertained;
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(g) any plans proposed for the child's care
and upbringing;
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(h) the nature, strength and stability of the
relationship between the child and each
spouse;
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(i) the nature, strength and stability of the
relationship between the child and each
sibling, grandparent and any other
significant person in the child's life;
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(j) the ability of each person in respect of
whom the order would apply to care for and
meet the needs of the child;
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(k) the ability of each person in respect of
whom the order would apply to
communicate and cooperate on issues
affecting the child; and
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(l) any court order or criminal conviction
that is relevant to the safety or well-being of
the child.
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| Definition of
``family
violence''
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(3) In this section, ``family violence''
includes behaviour by a family member
causing or attempting to cause physical harm
to the child or another family member, or
causing the child or another family member to
reasonably fear for his or her safety or that of
another person, but does not include acts of
self-protection or protection of another
person.
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| Burden of
proof
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(4) For greater certainty, for the purpose of
paragraph (2)(d), family violence is
established on a balance of probabilities.
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11. (1) Subsections 17(1) and (2) of the Act
are replaced by the following:
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| Order for
variation,
rescission or
suspension
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17. (1) A court of competent jurisdiction
may make an order varying, rescinding or
suspending, retroactively or prospectively,
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(a) a support order or any provision thereof,
on application by either or both former
spouses;
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(b) a parenting order or any provision
thereof, on application by
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(i) either or both former spouses, or
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(ii) a person, other than a former spouse,
who is a parent, stands in the place of a
parent or intends to stand in the place of
a parent; or
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(c) a contact order or any provision thereof,
on application by any person.
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| Leave of the
court
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(2) A person other than a former spouse may
not make an application under paragraph
(1)(b) or (c) unless he or she obtains leave of
the court.
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(2) Subsection 17(5) of the Act is replaced
by the following:
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| Factors for
parenting
order or
contact order
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(5) Before the court makes a variation order
in respect of a parenting order or a contact
order , the court shall satisfy itself that there
has been a change in the needs or
circumstances of the child of the marriage
occurring since the making of the parenting
order or contact order or the last variation
order made in respect of that order, as the case
may be, and, in making the variation order, the
court shall take into consideration only the
best interests of the child, as required by
section 16.2 and as determined by reference to
that change.
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(3) Section 17 of the Act is amended by
adding the following after subsection (6.5):
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| Priority to
child support
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(6.6) Section 15.3 applies, with such
modifications as the circumstances require,
when a court is considering an application
under paragraph (1)(a) in respect of a child
support order and an application under that
paragraph in respect of a spousal support
order.
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(4) Subsection 17(9) of the Act is
repealed.
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| 1993, c. 8,
ss. 2 to 4,
c. 28, s. 78
(Sch. III,
s. 43); 1997,
c. 1, ss. 6 and
7
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12. Sections 17.1 to 19 of the Act are
replaced by the following:
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| Variation
order by
affidavit, etc.
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17.1 If both former spouses are ordinarily
resident in different provinces, a court of
competent jurisdiction may, in accordance
with any applicable rules of the court, make a
variation order under subsection 17(1) on the
basis of the submissions of the former spouses,
whether presented orally before the court or
by means of affidavits, or by any means of
telecommunication permitted by the rules of
that court .
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| Definition of
``Attorney
General''
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18. (1) In this section and sections 19 to
19.2, ``Attorney General'', in respect of a
province, means
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(a) for the Yukon Territory, the member of
the Council of the Yukon Territory
designated by the Commissioner of the
Yukon Territory,
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(b) for the Northwest Territories, the
member of the Council of the Northwest
Territories designated by the Commissioner
of the Northwest Territories,
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(c) for Nunavut, the member of the
Executive Council of Nunavut designated
by the Commissioner of Nunavut, and
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(d) for the other provinces, the Attorney
General of the province,
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and includes any person authorized in writing
by the member or Attorney General to act for
the member or Attorney General in the
performance of a function under this section
or sections 19 to 19.2.
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| Inter-provinci
al proceedings
to vary
support orders
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(2) Independently of paragraphs 5(1)(a) and
17(1)(a), if both former spouses are ordinarily
resident in different provinces, a former
spouse may, without notice to the other former
spouse, commence an inter-provincial
proceeding to vary, rescind or suspend,
retroactively or prospectively, a support order
or any provision thereof by submitting an
application to the Attorney General of the
province in which that former spouse is
ordinarily resident.
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| Procedure
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(3) The commencement and conduct of
proceedings under subsection (2) shall be
governed by this section and the regulations.
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| Forwarding of
application to
respondent's
province
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(4) On receiving an application, the
Attorney General shall make reasonable
efforts to ensure that it is complete and, once
satisfied that it is complete, forward a copy of
it as soon as practicable to the Attorney
General of the province in which the applicant
believes the respondent is ordinarily resident.
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| Forwarding of
application to
appropriate
court
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(5) The Attorney General who receives a
copy of an application under subsection (4)
shall forward it to the appropriate court in his
or her province.
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| Application of
certain
provisions
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(6) Subsections 17(3) to (4.1), (6) to (7) and
(10) apply, with such modifications as the
circumstances require, in respect of an order
under subsection (7).
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| Order
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(7) The court may make an order varying,
rescinding or suspending, retroactively or
prospectively, the support order or any
provision thereof, on the basis of the
submissions of the former spouses, whether
presented orally before the court or by means
of affidavits, or by any means of
telecommunication permitted by the rules of
that court.
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| If applicant
resident
outside
Canada
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(8) Independently of paragraphs 5(1)(a) and
17(1)(a), if one former spouse is ordinarily
resident outside Canada and the other former
spouse is resident in Canada, the former
spouse who is ordinarily resident outside
Canada may, without notice to the other
former spouse, commence a proceeding under
this section to vary, rescind or suspend,
retroactively or prospectively, a support order
or any provision thereof, by submitting an
application to the Attorney General of the
province in which the respondent is ordinarily
resident.
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| Definition of
``assignee''
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19. (1) In this section and sections 19.1 and
19.2, ``assignee'' means a minister, member
or agency to whom a support order is assigned
under subsection 20.1(1).
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| Respondent or
assignee may
request
conversion to
section 18
procedure
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(2) If an application is made in a province
for a variation order in respect of a support
order and the respondent ordinarily resides in
a different province, either the respondent or
assignee may, within the time allowed for
filing an answer to that application, request
that the court convert the application to an
application under section 18.
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| Court to act
on request
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(3) The court that receives a request under
subsection (2) shall direct that the application,
along with the evidence in support of the
application, be treated as an application under
section 18, and shall forward a copy of the
application and the evidence to the Attorney
General of the province.
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| Application of
subsections
18(3) to (7)
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(4) Once an application is received by the
Attorney General under subsection (3),
subsections 18(3) to (7) apply in respect of that
application.
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| If respondent
or assignee
accepts
court's
jurisdiction
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19.1 For greater certainty, if an application
is made in a province for a variation order in
respect of a support order and
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(a) the respondent ordinarily resides in a
different province,
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(b) either the respondent or assignee files an
answer to the application, and
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(c) neither the respondent nor assignee
requests a conversion under subsection
19(2),
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the variation proceeding continues in the
applicant's province, in accordance with
sections 17 and 17.1.
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| If neither
respondent
nor assignee
responds
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19.2 (1) If an application is made in a
province for a variation order in respect of a
support order, the respondent ordinarily
resides in a different province, and neither the
respondent nor assignee files an answer to the
application or requests a conversion under
subsection 19(2), the court shall
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(a) hear and determine the application in
accordance with section 17 in the absence
of the respondent, if it is satisfied that there
is sufficient evidence to do so; or
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(b) if it is not so satisfied, direct that the
application, along with the evidence in
support of it, be treated as an application
under section 18, and shall forward a copy
of the application and the evidence to the
Attorney General of the province.
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| Application of
subsections
18(3) to (7)
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(2) If paragraph (1)(b) applies, subsections
18(3) to (7) apply in respect of that
application.
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| Assignment of
support order
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(3) Before the court may hear and
determine an application under paragraph
(1)(a), the court must satisfy itself
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(a) that the respondent did not assign the
support order under subsection 20.1(1); or
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(b) if the respondent did so assign the
support order, that the assignee received
notice of the application and did not request
a conversion under subsection 19(2).
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13. The Act is amended by adding the
following after section 19.2:
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