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Administrative Recalculation of Child Maintenance Regulations

made under Sections 54A and 55 of the

Maintenance and Custody Act

R.S.N.S. 1989, c. 160

O.I.C. 2014-439 (October 21, 2014, effective November 1, 2014), N.S. Reg. 161/2014



Citation

1     These regulations may be cited as the Administrative Recalculation of Child Maintenance Regulations.


Definitions

2     In these regulations,

 

“Act” means the Maintenance and Custody Act;

 

“applicable federal or provincial guidelines” means

 

                         (i)     for an order respecting maintenance for a child made under the Act, or an agreement that is registered with the court in accordance with the Act, the Child Maintenance Guidelines made under the Act, or

 

                         (ii)    for an order respecting child support made under the Divorce Act (Canada), the Child Support Guidelines made under that Act;

 

“child maintenance” means financial support payable under a child maintenance order;

 

“child maintenance order” means an order respecting

 

                         (i)     maintenance for a child made under the Act, and includes an agreement that is registered with the court in accordance with the Act, or

 

                         (ii)    child support made under the Divorce Act (Canada);

 

“child support service” means the provincial child support service continued under Section 3;

 

“Director” means the Director of Court Services in the Department of Justice assigned responsibility for the administrative recalculation of child maintenance under these regulations, unless otherwise specified;

 

“financial information” means any of the following for the most recent taxation year:

 

                         (i)     a copy of the payor’s personal income tax return, as filed, and a copy of each notice of assessment and re-assessment issued to the payor,

 

                         (ii)    if the payor has filed an income tax return but has not yet received a notice of assessment or reassessment, a copy of the income tax return and any document or documents acceptable to the recalculation clerk that further set out the payor’s annual income from all sources,

 

                         (iii)   if the annual recalculation takes place before the payor has filed an income tax return, any document or documents acceptable to the recalculation clerk that set out the payor’s annual income from all sources;

 

“former regulations” means the Administrative Recalculation of Child Maintenance Regulations, N.S. Reg. 66/2010;

 

“payor” means a person who is required under a child maintenance order to pay child maintenance;

 

“recalculated amount” means the amount of child maintenance payable under a recalculated order;

 

“recalculated order” means an order made by a recalculation clerk under Section 14;

 

“recalculation authorization order” means an order made by a court under Section 7, unless the context otherwise requires;

 

“recalculation clerk” means a recalculation clerk appointed under Section 6;

“recipient” means a person entitled under a child maintenance order to receive child maintenance on their behalf or on behalf of another person;

 

“review date” means, in relation to a recalculation authorization order, the day and month in every year that is the anniversary of the issuance of the recalculation authorization order;

 

“shared custody” means shared custody as described in Section 9 of the applicable federal or provincial guidelines;

 

“table amount” means the amount referred to in clause 3(1)(a) of the applicable federal or provincial guidelines to be paid as child maintenance.


Child support service

3     The recalculation program established under the former regulations continues as a child support service to conduct the administrative recalculation of child maintenance under these regulations.


References to applicable federal or provincial guidelines

4     A reference in these regulations to a provision of the applicable federal or provincial guidelines is a reference to the provision with the same numbering or lettering, notwithstanding that the reference uses the provincial legislative naming convention.


Recalculation authorization order issued under former regulations

5     (1)    Subject to subsection (2), a recalculation authorization order issued under the former regulations may be filed and enforced or otherwise dealt with under these regulations.

 

       (2)    A recalculation authorization order issued under the former regulations that is not filed with the Director on or before the date these regulations come into force is deemed to expire 5 years after the date it was issued.


Recalculation clerk

6     (1)    The Director may assign the duties of a recalculation clerk to an officer or employee appointed under the Court Officials Act.

 

       (2)    A recalculation clerk must perform any duties and functions required by these regulations, including all of the following:

 

                (a)    reviewing and recalculating the table amount of child maintenance orders at regular intervals as authorized by a recalculation authorization order and in accordance with the Act, these regulations and the applicable federal or provincial guidelines;

 

                (b)    collecting financial information and determining annual income in accordance with the Act, these regulations and the applicable federal or provincial guidelines.


Court may make recalculation authorization order

7     Except as limited by Section 9, a court may order, either separately or as a part of another order, that the table amount of a child maintenance order be recalculated at regular intervals in accordance with these regulations, whether or not the payor or recipient applies for a recalculation authorization order in the originating process.


Application for recalculation authorization order

8     A payor or recipient may apply to a court for a recalculation authorization order in respect of the table amount of a child maintenance order on or after the date the child maintenance order is first made or registered with the court.


When court must not make recalculation authorization order

9     A court must not make a recalculation authorization order in any of the following circumstances:

 

                (a)    if either or both the payor and recipient do not ordinarily reside in the Province;

 

                (b)    the child maintenance order is an interim order;

 

                (c)    there is a shared custody order for a child to whom the child maintenance order applies;

 

                (d)    the payor’s annual income is over $150,000, and the amount of the child maintenance ordered was determined under clause 4(b) of the applicable federal or provincial guidelines;

 

                (e)    the child maintenance payable takes undue hardship into account in accordance with Section 10 of the applicable federal or provincial guidelines;

 

                (f)    the financial information indicates that the payor receives income as a self-employed person, as a partner in a partnership, as a person in control of a corporation, or as a recipient of dividend income as referred to in clauses 21(1)(d) to (g) of the applicable federal or provincial guidelines;

 

                (g)    a child maintenance order applies to a payor who stands in the place of a parent and Section 3 of the applicable federal or provincial guidelines was not applied to determine the amount of the child maintenance;

 

                (h)    the annual income of the payor was determined based on a pattern of income under Section 17 of the applicable federal or provincial guidelines;

 

                (i)     the amount of the child maintenance ordered was not determined under the applicable federal or provincial guidelines.


Mandatory conditions of recalculation authorization order

10   A recalculation authorization order must include all of the following conditions:

 

                (a)    that the payor must file their financial information with the recalculation clerk no later than 60 days before the review date;

 

                (b)    that if the payor fails to provide their financial information as required, then the payor’s annual income is deemed to be 10% more than the annual income attributed to the payor’s income in the most recent child maintenance order or recalculated order;

 

                (c)    that a recalculation clerk must, on or before the review date, review and recalculate the table amount of child maintenance in accordance with these regulations;

 

                (d)    that the payor becomes liable to pay the recalculated amount 31 days after both parties to whom the order relates are notified of the recalculation;

 

                (e)    that the payor and recipient must notify a recalculation clerk in writing of a change to any of their following contact information no later than 10 days after the date of the change:

 

                         (i)     mailing address,

 

                         (ii)    e-mail address,

 

                         (iii)   telephone number,

 

                         (iv)   fax number.


Date that recalculation authorization order expires

11   A recalculation authorization order expires on the earlier of the following dates:

 

                (a)    the date that the child maintenance order to which it applies is varied, rescinded or suspended;

 

                (b)    the date that any child to whom the child maintenance order applies reaches the age of majority.


Filing recalculation authorization order with Director

12   (1)    No later than 5 days after it is issued, a recalculation authorization order must be filed by the court with the Director.

 

       (2)    A payor or recipient may file with the Director any recalculation authorization order that is not filed in accordance with subsection (1).


Clerk must issue recalculated order

13   (1)    At least 40 days before the review date of a recalculation authorization order, a recalculation clerk must do all of the following:

 

                (a)    review the financial information received;

 

                (b)    determine the annual income of the payor in accordance with Section 17;

 

                (c)    subject to Section 15,

 

                         (i)     recalculate the table amount based on the annual income of the payor and rounded to the nearest dollar amount, and

 

                         (ii)    issue a recalculated order and send a copy of the recalculated order to the recipient and the payor.

 

       (2)    Nothing in these regulations authorizes a recalculation clerk to recalculate any amount of child maintenance payable other than the table amount.

 

       (3)    Before issuing a recalculated order, a recalculation clerk may refer the proposed recalculated order to a judge, who may or refer it back to the recalculation clerk with directions or make such order as is just.

 

       (4)    A recalculated order is not invalid because a recalculation clerk fails to perform a review and recalculation before the deadline in subsection (1).

 

       (5)    A recalculation authorization order filed with the Director that has not been recalculated for a previous year may be recalculated based on financial information for the most recent taxation year in accordance with these regulations.


Correcting clerical errors or omissions in recalculated order

14   (1)    No later than 30 days after a recalculated order is issued, a recalculation clerk may correct a clerical error or omission in the recalculated order and issue a corrected recalculated order.

 

       (2)    A recalculation clerk must immediately send a copy of any recalculated order corrected under this Section to the recipient and the payor.

 

       (3)    A recalculated order corrected and issued under this Section takes the place of the recalculated order it corrects and takes effect on the same date as the recalculated order it is made in place of.


When child maintenance must not be recalculated under these regulations

15   A recalculation clerk must not recalculate the table amount of a child maintenance order if any of the following apply:

 

                (a)    the recalculation authorization order for the child maintenance order has expired or has been varied, rescinded, suspended or substituted by the court;

 

                (b)    the payor’s income has not changed;

 

                (c)    the recalculation authorization order was made in any of the circumstances listed in Section 9;

 

                (d)    the payor’s circumstances have changed since the recalculation authorization order was made to include any of the circumstances listed in Section 9;

 

                (e)    the recalculation authorization order was made under these regulations but does not comply with these regulations;

 

                (f)    the recalculation authorization order was made under the former regulations but does not comply with the former regulations or these regulations.


Payor and recipient notified if no recalculation

16   A recalculation clerk who determines that child maintenance cannot be recalculated under Section 15 must notify the payor and the recipient of the determination and the reasons for it as soon as practicable, including any of the following applicable statements:

 

                (a)    if clause 15(c) or (d) applies, a statement that no further action can be taken by the recalculation clerk unless the court issues a new recalculation authorization order or confirms the existing recalculation authorization order;

 

                (b)    if clause 15(e) or (f) applies, a statement that no further action can be taken by the recalculation clerk unless the court issues a new recalculation authorization order.


Determining annual income of payor

17   (1)    If a payor has filed financial information, a recalculation clerk must determine the annual income of the payor in accordance with Section 16 of the applicable federal or provincial guidelines.

 

       (2)    If a payor has not filed financial information, the payor’s annual income is deemed to be 10% more than the payor’s annual income set out in the most recent of the previous child maintenance orders and recalculated orders made against the payor.


Information included in recalculated order

18   A recalculated order must be in writing and must state all the following:

 

                (a)    the recalculated table amount, and how it was calculated;

 

                (b)    the annual income of the payor as determined in accordance with Section 17, and how it was calculated;

 

                (c)    the review date;

 

                (d)    that the payor must pay the recalculated table amount monthly, on and from the review date;

 

                (e)    the names and dates of birth of all children for whom the recalculated table amount is payable;

 

                (f)    that the payor and the recipient are entitled to apply to a court under Section 19 to vary, rescind or suspend the recalculated order;

 

                (g)    the date the payor becomes liable to pay the recalculated amount, which is 31 days after both parties to whom the order relates are notified of the recalculated order.


Right to object to recalculated amount

19   (1)    No later than 30 days after a payor or recipient is notified of a recalculated order, the payor or recipient may object to the order by making an application to a court to vary, rescind or suspend the recalculated order.

 

       (2)    A payor or recipient must notify the recalculation clerk in writing of any application made under subsection (1).

 

       (3)    If an application to the court is made under subsection (1), the recalculated order is suspended pending the determination of the application and the most recent order from among the previous child maintenance orders and recalculated orders remains in effect during the suspension.

 

       (4)    If an application to the court made under subsection (1) is withdrawn before the court determines the application, whether or not the application is withdrawn before or after the review date, a payor is liable to pay the recalculated table amount as determined by the recalculations clerk in accordance with these regulations.


Filing recalculated order with Director

20   A recalculation clerk must file a recalculated order with the court and the Director of Maintenance Enforcement appointed under the Maintenance Enforcement Act, together with any financial information and current contact information that was provided to the recalculation clerk.


Documents sent to payor or recipient by regular mail

21   (1)    Any notice or order that a recalculation clerk is required to send to a payor or recipient under these regulations must be sent by regular mail to the most current address for the person provided to the recalculation clerk.

 

       (2)    A notice or order sent in accordance with subsection (1) is deemed to have been received 5 days after the date it was sent.


Recalculation does not affect other portions of child maintenance order

22   A recalculation of the table amount of a child maintenance order under these regulations in accordance with a recalculation authorization order does not affect the validity of any other portion of the original child maintenance order.