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Bill C-22

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Contact Orders

Contact order

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.

Interim contact order

(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).

Leave of the court

(3) A person may not make an application under subsection (1) or (2) unless he or she obtains leave of the court.

Factors in granting leave

(4) In determining whether to grant leave under subsection (3), the court shall consider all relevant factors, including

    (a) the significance of the relationship between the child and the applicant; and

    (b) the necessity of making an order to facilitate contact between the child and the applicant.

Content of contact order

(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.

Terms and conditions

(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.

Best Interests of the Child

Best interests of child

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.

Factors court to consider

(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

    (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;

    (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;

    (c) the history of care for the child;

    (d) any family violence, including its impact on

      (i) the safety of the child and other family members,

      (ii) the child's general well-being,

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

      (iv) the appropriateness of making an order that would require the spouses to cooperate on issues affecting the child;

    (e) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including aboriginal upbringing or heritage;

    (f) the child's views and preferences, to the extent that those can be reasonably ascertained;

    (g) any plans proposed for the child's care and upbringing;

    (h) the nature, strength and stability of the relationship between the child and each spouse;

    (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;

    (j) the ability of each person in respect of whom the order would apply to care for and meet the needs of the child;

    (k) the ability of each person in respect of whom the order would apply to communicate and cooperate on issues affecting the child; and

    (l) any court order or criminal conviction that is relevant to the safety or well-being of the child.

Definition of ``family violence''

(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.

Burden of proof

(4) For greater certainty, for the purpose of paragraph (2)(d), family violence is established on a balance of probabilities.

11. (1) Subsections 17(1) and (2) of the Act are replaced by the following:

Order for variation, rescission or suspension

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

    (a) a support order or any provision thereof, on application by either or both former spouses;

    (b) a parenting order or any provision thereof, on application by

      (i) either or both former spouses, or

      (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

    (c) a contact order or any provision thereof, on application by any person.

Leave of the court

(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.

(2) Subsection 17(5) of the Act is replaced by the following:

Factors for parenting order or contact order

(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.

(3) Section 17 of the Act is amended by adding the following after subsection (6.5):

Priority to child support

(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.

(4) Subsection 17(9) of the Act is repealed.

1993, c. 8, ss. 2 to 4, c. 28, s. 78 (Sch. III, s. 43); 1997, c. 1, ss. 6 and 7

12. Sections 17.1 to 19 of the Act are replaced by the following:

Variation order by affidavit, etc.

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 .

Inter-provincial Proceedings to Vary, Rescind or Suspend Support Orders Without Notice

Definition of ``Attorney General''

18. (1) In this section and sections 19 to 19.2, ``Attorney General'', in respect of a province, means

    (a) for the Yukon Territory, the member of the Council of the Yukon Territory designated by the Commissioner of the Yukon Territory,

    (b) for the Northwest Territories, the member of the Council of the Northwest Territories designated by the Commissioner of the Northwest Territories,

    (c) for Nunavut, the member of the Executive Council of Nunavut designated by the Commissioner of Nunavut, and

    (d) for the other provinces, the Attorney General of the province,

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.

Inter-provinci al proceedings to vary support orders

(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.

Procedure

(3) The commencement and conduct of proceedings under subsection (2) shall be governed by this section and the regulations.

Forwarding of application to respondent's province

(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.

Forwarding of application to appropriate court

(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.

Application of certain provisions

(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).

Order

(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.

If applicant resident outside Canada

(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.

Definition of ``assignee''

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).

Respondent or assignee may request conversion to section 18 procedure

(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.

Court to act on request

(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.

Application of subsections 18(3) to (7)

(4) Once an application is received by the Attorney General under subsection (3), subsections 18(3) to (7) apply in respect of that application.

If respondent or assignee accepts court's jurisdiction

19.1 For greater certainty, if an application is made in a province for a variation order in respect of a support order and

    (a) the respondent ordinarily resides in a different province,

    (b) either the respondent or assignee files an answer to the application, and

    (c) neither the respondent nor assignee requests a conversion under subsection 19(2),

the variation proceeding continues in the applicant's province, in accordance with sections 17 and 17.1.

If neither respondent nor assignee responds

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

    (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

    (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.

Application of subsections 18(3) to (7)

(2) If paragraph (1)(b) applies, subsections 18(3) to (7) apply in respect of that application.

Assignment of support order

(3) Before the court may hear and determine an application under paragraph (1)(a), the court must satisfy itself

    (a) that the respondent did not assign the support order under subsection 20.1(1); or

    (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).

13. The Act is amended by adding the following after section 19.2:

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