Release of Information for Family Orders and Agreements Enforcement Assistance Regulations: SOR/2023-125

Canada Gazette, Part II, Volume 157, Number 13

Registration
SOR/2023-125 June 9, 2023

FAMILY ORDERS AND AGREEMENTS ENFORCEMENT ASSISTANCE ACT

P.C. 2023-556 June 9, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice with the concurrence of the Minister of Finance, makes the annexed Release of Information for Family Orders and Agreements Enforcement Assistance Regulations under section 22footnote a of the Family Orders and Agreements Enforcement Assistance Act footnote b.

Release of Information for Family Orders and Agreements Enforcement Assistance Regulations

Definition

Definition of Act

1 In these Regulations, Act means the Family Orders and Agreements Enforcement Assistance Act.

Information Banks and Information Bank Directors

Designated information banks

2 (1) The following information banks are designated as information banks that may be searched under Part I of the Act:

Designated information bank directors

(2) The following persons are designated as information bank directors:

Applications

Information

3 (1) An application for the release of information under Part I of the Act must contain the following information:

Corporation controlled indirectly

(2) If information referred to in paragraph 5(1)(d) is being requested in respect of a corporation that is controlled indirectly by the person named in the application, the application must also contain an explanation of the basis on which indirect control is established.

Making of application

4 An application for the release of information under Part I of the Act is to be sent by mail to the Department of Justice, Family Law Assistance Services, Ottawa, Ontario K1A 0H8 or by the means of electronic communication set out in the agreement, entered into under section 3 of the Act, that applies to the applicant.

Release of Information

Court official

5 (1) For the purposes of subsection 12(1) of the Act, in the case of an application under section 7 of the Act in relation to the establishment or variation of a support provision, the information that is released to the official of the court is the information, from among the following, that is requested:

Enforcement of support provision

(2) For the purposes of subsection 12(1) of the Act, in the case of an application under section 7 of the Act in relation to the enforcement of a support provision, the information that is released to the official of the court is the information, from among the following, that is requested:

Prior taxation year

(3) If the information referred to in subparagraph (2)(c)(i) is not found in an information bank for the taxation year referred to in paragraph (2)(c), the information that is released under that subparagraph is the information for the year preceding the taxation year referred to in that paragraph.

Enforcement of other family provisions

(4) For the purposes of subsection 12(1) of the Act, in the case of an application under section 7 of the Act in relation to the enforcement of a parenting provision, contact provision, custody provision or access provision, the information that is released to the official of the court is the information, from among the following, that is requested:

Duty to inform — time and manner

6 For the purposes of section 12.1 of the Act, the Minister must send the copy of the order and the notice by mail to the last known address of the person referred to in paragraph 8(2)(a) or 9(2)(a) of the Act within 10 business days after the day on which the Minister receives the application by the official of the court for the release of information.

Peace officer

7 For the purposes of subsection 14(1) of the Act, the information that is released to the peace officer is the information, from among the following, that is requested:

Provincial enforcement service

8 (1) For the purposes of subsection 15(1) of the Act, in the case of an application for the release of information that is made for the purpose set out in paragraph 15(2)(a) of the Act, the information that is released to the provincial enforcement service is the information, from among the following, that is requested:

Prior taxation year

(2) If the information referred to in subparagraph (1)(d)(i) is not found in an information bank for the taxation year referred to in paragraph (1)(d), the information that is released under that subparagraph is the information for the year preceding the taxation year referred to in that paragraph.

Parenting, contact, custody or access provision

(3) For the purposes of subsection 15(1) of the Act, in the case of an application for the release of information that is made for the purpose set out in paragraph 15(2)(b) of the Act, the information that is released to the provincial enforcement service is the information, from among the following, that is requested:

Creditor or debtor

(4) For the purposes of subsection 15(1) of the Act, in the case of an application for the release of information that is made for the purpose set out in paragraph 15(2)(c) of the Act, the information that is released to the provincial enforcement service is the address of the person named in the application.

Exception — prior agreements

(5) Paragraphs (1)(c) and (d) and subsection (4) apply only in respect of a provincial enforcement service of a province that has, under section 3 of the Act, entered into an agreement that has an effective date that is no earlier than the day on which this subsection comes into force.

Application on behalf of another entity

(6) Despite subsections (1) to (5), if the provincial enforcement service is acting on behalf of another entity under section 6.2 of the Act, the information that is released to the provincial enforcement service is the information that would be released to the other entity under section 9 or 10 of these Regulations.

Provincial child support service

9 (1) For the purposes of section 15.1 of the Act, the information that is released to the provincial child support service is the information, from among the following, that is requested:

Prior taxation year

(2) If the information referred to in subparagraph (1)(c)(i) is not found in an information bank for the taxation year referred to in paragraph (1)(c), the information that is released under that subparagraph is the information for the year preceding the taxation year referred to in that paragraph.

Designated authority

10 For the purposes of subsection 16(1) of the Act, the information that is released to the designated authority is the following:

Amendments to These Regulations

11 Subsection 5(3) of these Regulations is replaced by the following:

Prior taxation year

(3) If the information referred to in any of subparagraphs (2)(c)(i) to (iii) is not found in an information bank for the taxation year referred to in paragraph (2)(c), the information that is released under that subparagraph is the information for the year preceding the taxation year referred to in that paragraph.

12 Subsection 8(2) of these Regulations is replaced by the following:

Prior taxation year

(2) If the information referred to in any of subparagraphs (1)(d)(i) to (iii) is not found in an information bank for the taxation year referred to in paragraph (1)(d), the information that is released under that subparagraph is the information for the year preceding the taxation year referred to in that paragraph.

13 Subsection 9(2) of these Regulations is replaced by the following:

Prior taxation year

(2) If the information referred to in any of subparagraphs (1)(c)(i) to (vi) is not found in an information bank for the taxation year referred to in paragraph (1)(c), the information that is released under that subparagraph is the information for the year preceding the taxation year referred to in that paragraph.

Repeal

14 The Release of Information for Family Orders and Agreements Enforcement Regulations footnote 1 are repealed.

Coming into Force

S.C. 2019, c. 16

15 (1) Subject to subsection (2), these Regulations come into force on the day on which subsection 49(1) of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

First anniversary

(2) Subsection 3(2), subparagraphs 5(1)(c)(ii) to (xxiv), paragraph 5(1)(d), subparagraphs 5(2)(c)(ii) and (iii), 8(1)(d)(ii) and (iii) and 9(1)(c)(ii) to (vi) and sections 11 to 13 come into force on the first anniversary of the day on which subsection 49(1) of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, chapter 16 of the Statutes of Canada, 2019, comes into force.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: Former Bill C-78, (ARCHIVED) An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (former Bill C-78), received royal assent on June 21, 2019.

In light of the legislative amendments made to Part I of the Family Orders and Agreements Enforcement Assistance Act (Act), many changes are required to the regulations made under that Part. To make the required changes and streamline the regulations, the new Release of Information for Family Orders and Agreements Enforcement Assistance Regulations (new Regulations) will repeal and replace the existing Release of Information for Family Orders and Agreements Enforcement Regulations (SOR/87-315) [current Regulations].

Description: The current Regulations prescribe the application for the release of information form (application form) that a court, a provincial enforcement service (PES) or a peace officer is required to complete to make an application for the release of information (application) under Part I of the Act, as well as a template for the affidavit that is required in support of an application. They also list designated information banks that may be searched under Part I of the Act and prescribe the manner in which the information is to be released from one information bank to another and to the Minister of Justice.

To be aligned with the changes made to Part I of the Act by former Bill C-78, the new Regulations will reflect new defined terms, add new entities that may submit an application, list the names of the departments responsible for the federal information banks that will be searched, list the information that will be searched, specify which type of information will be released to which entities and under what circumstances, and clarify that the Minister of Justice will be able to assist information bank directors in conducting of a search under Part I of the Act.

The new Regulations will also reflect changes to the Act that removed the requirement for a PES to submit an affidavit and the requirement for information to be provided using a prescribed form. Accordingly, the prescribed application form (Schedule I) and affidavit template (Schedule II) will be removed from the schedules. The new Regulations will instead list the information that must be submitted in an application.

Rationale: The new Regulations are needed to support the implementation of changes to Part I of the Act by former Bill C-78. They will reflect new Divorce Act terminology (e.g. parenting orders and contact orders) and will better assist provinces and territories (PTs) with their enforcement activities by improving the efficiency of support enforcement tools offered under Part I of the Act, while ensuring that only the information that is truly necessary is being released. The new Regulations will also improve access to justice and help to reduce poverty for children and parents going through separation and divorce by assisting with the determination of fair and accurate support amounts.

The costs associated with the new Regulations will be low. The federal costs associated with implementing the new Regulations will be absorbed through existing resources and funding announced in Budget 2017 for the implementation of amendments to federal support enforcement legislation. The costs for PTs will include computer system changes and staff training, which will be carried out by existing personnel.

Issues

(ARCHIVED) An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (former Bill C-78) received royal assent on June 21, 2019.

Part I of the Family Orders and Agreements Enforcement Assistance Act (Act) was amended by former Bill C-78 to increase the efficiency of federal trace and locate services, improve access to justice, and contribute to reducing poverty for children and parents going through separation and divorce. This was done by

The Release of Information for Family Orders and Agreements Enforcement Assistance Regulations (new Regulations) are required to support the implementation of the legislative changes to ensure that the new Regulations are consistent with their enabling authority.

Legislative amendments made to Part I of the Act will come into force by Order in Council on November 15, 2023.

Background

Family law in Canada is an area of jurisdiction shared between federal, provincial and territorial (FPT) governments. The enforcement of family support obligations (child and spousal support) is primarily a provincial and territorial responsibility. The federal government assists the PTs in their enforcement activities through federal legislation such as the Act, which is divided in three parts: the federal trace and locate services (Part I), the interception of federal monies (Part II) and the denial of federal licences (Part III).

Part I of the Act currently allows for the release of information from federal information banks to PESs, judges or court officials to help locate individuals in breach of a family provision (i.e. a provision related to parenting, contact, custody, access or child or spousal support), and to peace officers investigating a child abduction. Privacy safeguards are also included in the Act to protect the information being released under that Part. Sections 3, 4 and 20 provide that an agreement must be in place between the federal government and the government of each PT to establish safeguards for the protection of information before any information can be released to an applicant.

Judges, court officials, PESs and peace officers can make an application under Part I of the Act by submitting the application form prescribed in Schedule I of the current Regulations. Other documents are also required in support of the application. Judges and court officials must submit a copy of the family provision they want to enforce and the court’s authorization to make the application, while peace officers must submit a copy of the information to which the application relates. PESs and peace officers must also submit an affidavit prescribed in Schedule II of the current Regulations in support of their application. In their affidavit, PESs must allege the breach of the family provision and set out the particulars of that breach. All affidavits must disclose the reasonable steps that have been made to locate the person and whether provincial information banks were searched prior to making the application or whether there are reasons to believe that the person has left the PT.

Upon reception of an application and the supporting documents, the Minister of Justice transmits the request to the information bank directors responsible for the federal information banks that can be searched under Part I of the Act. The information bank directors are defined in the Act and include the Minister responsible for the Department of Employment and Social Development (ESD), the Chairperson of the Canada Employment Insurance Commission (CEIC), and the Minister of National Revenue. The information bank directors conduct a search of their information banks for the address of the person to whom the application relates and the name and address of their employer, in accordance with section 16 of the Act. If the information is found, the information bank director transmits the information to the Minister of Justice. The Minister of Justice can then release it to the applicant if the Minister is satisfied that the safeguards set out in the agreement with the PT of the applicant are in place.

Based on several years of FPT collaboration, amendments were made to Part I of the Act, through former Bill C-78, to assist the courts and provincial entities with the determination of a fair and accurate amount of support in situations where a parent fails to comply with their obligations to disclose financial information under the Divorce Act or under PT family laws. Providing an additional tool for courts and provincial entities to obtain a person’s financial information will allow child support orders to be made more quickly and accurately and with less conflict. These changes will help reduce poverty as well as the legal costs associated with obtaining financial information from a parent who fails to comply with this obligation and the associated use of court resources.

Former Bill C-78 amended Part I of the Act to

Objective

The new Regulations support the implementation of the legislative amendments to Part I of the Act. They further the goal of helping to reduce poverty by providing the courts and provincial child support services with financial information that is necessary to determine a fair and accurate amount of support and for PESs to enhance their ability to locate the source of income of a person in default of their support obligation. This will allow families and children to receive the appropriate support amount in a timely manner.

The new Regulations also improve the efficiency of the federal support enforcement regime, and provide a comprehensive legal framework by ensuring consistency between the new Regulations and its enabling authority. They correct inaccuracies and reflect the new Divorce Act parenting terminology (e.g. parenting orders and contact orders). The new Regulations will better assist and guide the PTs with their enforcement activities and foster FPT cooperation.

Description

In light of the amendments made to Part I of the Act by former Bill C-78, the new Regulations include the following changes:

Change in terminology

The new Regulations reflect the addition of definitions in the Act, such as parenting provision and contact provision. These were included to ensure consistency with the terminology used in the new Divorce Act and most provincial and territorial family laws.

Expansion of the federal trace and locate services

Legislative amendments allowed for more provincial and territorial entities, such as provincial child support services and designated authorities under interjurisdictional support orders legislation to submit an application under Part I of the Act, and expanded the purposes for which an application can be made. They also allowed for additional information, such as financial information to be released to courts, PESs and provincial child support services in specific circumstances. The new Regulations reflect these changes by indicating what type of information could be released to each entity and for which purposes. Examples are provided below.

Court officials

Court officials could request a person’s tracing (i.e. the person’s address and their employer’s name and address) and financial information to establish or vary a support provision. This information could also be requested relating to a third party (e.g. new spouse/children of the household). These requests could be made when an undue hardship claim has been made under applicable child support guidelines or to establish or vary a spousal support amount under the Divorce Act or under provincial and territorial family laws (e.g. when a spouse remarries or has a new partner). The financial information that could be released would come from Canada Revenue Agency’s (CRA) tax forms and slips (e.g. Income Tax and Benefit Return, Notice of Assessment, Notice of Reassessment) and could include information about a person’s personal, professional and business financials. Professional and business financial information would be released only to the extent that it is relevant to the determination of support obligations.

Court officials would only be allowed to apply for financial information if the court is of the view that the information is required to determine the appropriate support amount.

Court officials could also request a person’s tracing and financial information to enforce a support provision.

In addition, tracing information could be released to court officials to enforce a provision related to parenting, contact, custody or access.

Peace officers

Peace officers conducting a child abduction investigation could request tracing information about the person being investigated and the allegedly abducted child or children.

PESs

PESs could request a person’s tracing information and financial information to enforce a support provision. Financial information that could be released to PESs is the information set out in the person’s Income Tax and Benefit Return, their Notice of Assessment, and their Notice of Reassessment. The name and address of each person or entity from which they received income, and the amount of income received from each person or entity could also be released. A PES could also request a person’s SIN to locate the support payor and ensure that they are taking enforcement measures against the right person. This would allow them to collect the appropriate amount of child and spousal support against the correct individual.

PESs could also request a person’s tracing information to enforce a parenting, contact, custody, or access provision, or to locate a support payor or a support recipient to pay out monies which are owed to them.

Former Bill C-78 also allows a PES to act as an intermediary and apply for information on behalf of other provincial entities, such as a provincial child support service and a designated authority. The new Regulations specify what information could be released in these cases. For example, if a PES is acting on behalf of a designated authority, the information that would be released to the PES could be the address of a person named in an interjurisdictional support order (ISO) application (i.e. a support payor or a support recipient). Once the PES receives the information, it would then provide it to the designated authority.

Provincial child support services

Provincial child support services could request a person’s tracing and financial information to calculate or recalculate the amount of child support. Financial information to be released to provincial child support services would include, among other things, the information set out in the person’s Income Tax and Benefit Return, their Notice of Assessment, and their Notice of Reassessment.

Designated authorities

Designated authorities could request the address of a person named in an ISO application to assist with the processing of an application that is made under the Divorce Act or under PT ISO legislation. They could also request the name of a province, territory, country, or political subdivision of a country where the person to be named in an ISO application resides to assist with the processing of an application that could be made under the Divorce Act or under PT ISO legislation.

In all cases, the information to be released would only relate to the person who is named in the application and would be limited to the information that is necessary to achieve the purposes identified in the Act.

Information that may be released

Further to the changes made by former Bill C-78, the information that may be released under Part I of the Act is being moved from the Act to the new Regulations. The new Regulations prescribe the information that may be released under Part I of the Act, as described above.

Information banks and information bank directors

The new Regulations name the departments responsible for the federal information banks from which information can be searched under Part I of the Act and designate the ministers responsible for the administration of these information banks as information bank directors. The new Regulations update the names and numbers of the information banks listed in section 3 of the current Regulations.

Application form (Schedule I) and affidavit (Schedule II)

The new Regulations list the information to be included in an application that will be in a form approved by the Minister of Justice rather than including the application form in a schedule as it is done under the current Regulations. The information to be included in the application form is similar to what is required in Schedule I of the current Regulations and also includes the new entities that will be able to make an application under Part I of the Act, the new purposes for which the information will be requested and which information will be released in each circumstance. The new Regulations reflect the legislative change that a PES no longer needs to provide an affidavit in support of their application. A binding declaration will be added to the application form instead, where provincial entities will attest that the information provided in the application form is accurate and that it was provided for the purposes of an application made under Part I of the Act. The new Regulations prescribe the time and manner in which applications may be made under Part I of the Act depending on the applicant making the request.

The new Regulations will also no longer include the affidavit in Schedule II of the current Regulations. This is consequential to the former Bill C-78 amendment where a PES no longer needs to submit an affidavit in support of its application.

Privacy safeguards — Ministerial notice

Former Bill C-78 added safeguards to protect information being released to court officials. One of those safeguards requires the Minister of Justice to send a notice to the person whose information is to be released. This is done in situations where the request to the court to allow a court official to apply for information under Part I of the Act was made without notice. A copy of the court order authorizing the making of the application must also be sent with the notice under Part I of the Act. Regulation-making authority was added in the Act to prescribe the time and manner of sending the notice.

The new Regulations will set out the time and manner in which the Minister of Justice must send a notice with a copy of the order authorizing the court official to make an application to the person whose information is to be released under section 12.1 of the amended Act. This will allow the Minister of Justice to fulfill his obligation under that section and ensure that there is compliance with privacy safeguards under the Act.

Privacy safeguards — Memorandum of Agreement

The Act requires that a Memorandum of Agreement (MOA) establishing safeguards for the protection of information be in place between the federal government and each PT before information can be released to provincial entities under Part I of the Act. Among those provincial entities, only PESs are covered under the 1980s and 1990s MOAs that are currently in place with each PT under Part I of the Act. Under those MOAs, a PES can only receive the address of the person to whom the application relates and the name and address of their employer in accordance with section 16 of the current Act. The new Regulations will ensure that the new information that may be released under the new Regulations will not be released to a PES until a new MOA is concluded with the PT of the PES.

Regulatory development

Consultation

The new Regulations are required following amendments made to its enabling statute and other changes made to FPT legislation and practices.

Federal partners under Part I of the Act, namely ESD, the CEIC and the CRA, were consulted on and were supportive of the legislative amendments made to Part I of the Act. They were also consulted on and were supportive of the new Regulations that implement the legislative amendments. Extensive consultation with the CRA and the Department of Finance (FIN) also took place as the release of financial information is an element that can only be listed in the new Regulations with the concurrence of the Minister of Finance. The CRA and FIN are supportive of the new Regulations and concurrence of the Minister of Finance has been secured.

Other key stakeholders impacted by the new Regulations are courts, provincial entities who would submit an application (i.e. PESs, provincial child support services and designated authorities), and provincial and territorial family law officials who, as those responsible for the administration of justice and the delivery of family justice services, deal directly with families undergoing separation and divorce. The new Regulations are the result of, among other things, FPT collaboration on issues related to support enforcement and the improvement of federal support enforcement tools, the administration of justice and the reduction of poverty for children and parents going through a family breakdown. Feedback from provincial and territorial officials on the new Regulations has been positive.

Discussions on policy directions were also held with family law stakeholders and experts, including the Canadian Bar Association.

A task group was also created by the FPT Coordinating Committee of Senior Officials – Family Justice (CCSO – FJ) to develop a new uniform MOA to be signed with each PT under Part I of the Act. Members of this task group were representatives from the federal government and from the provinces of Quebec, Ontario, Nova Scotia, Manitoba, Alberta and British Columbia. The task group members had extensive knowledge of Part I of the Act and of federal or provincial privacy legislation as it relates to information sharing between different levels of government. They were also familiar with the negotiation of government-to-government information-sharing agreements. The MOA template follows the Government of Canada’s Guidance on Preparing Information Sharing Agreements Involving Personal Information and the Government-to-Government Personal Information Sharing Agreements - Guidelines for Best Practice. Throughout the negotiation process, consultations were held internally in each PT by members of the task group as well as members of the CCSO – FJ. Justice Canada’s Centre of Information and Privacy Law as well as the Treasury Board of Canada were also consulted during the drafting of the uniform MOA template. The uniform MOA template was approved at the CCSO – FJ officials meeting on April 7, 2021. An Order in Council was issued by the Governor in Council in June 2021, allowing the Minister of Justice to enter into new MOAs with each PT using the uniform MOA template.

FPT collaboration is ongoing and includes consultations with the CCSO – FJ and its subcommittees. The Maintenance Enforcement Program Directors Group and the Family Orders and Agreements Enforcement Assistance System Group (which specifically discusses technical changes and enhancements to the computer system for the federal trace and locate service, the Family Orders and Agreement Enforcement Assistance system [FOAEA system]) are also being consulted. To ensure that former Bill C-78 amendments related to Part I of the Act and the new Regulations are implemented properly, including that provincial and territorial entities’ computer systems interact properly with the FOAEA system and that new MOAs establishing safeguards for the protection of information are signed with each PT, collaboration will continue through FPT conference calls with these groups.

The proposed Regulations were prepublished in the Canada Gazette, Part I, for a 30-day consultation period on February 18, 2023. Twenty-seven comments were received from the provinces and territories, as well as family and tax law experts. All were in favour of the regulatory proposal. The comments included requests for some minor clarification and the addition of other CRA fiscal forms to assist with the establishment and variation of child and spousal support, as well as for the calculation or recalculation of child support. Officials from ESD also requested that seven additional information banks controlled by their department be included in the new Regulations as information banks that could be searched under Part I.

The following changes were made based on the comments received:

Some of the other suggestions, such as the addition of other CRA fiscal forms, may be considered in future regulatory amendments. Further policy consideration and consultations with CRA and FIN officials would be required.

Modern treaty obligations and Indigenous engagement and consultation

There are no modern treaty obligations relevant to the new Regulations and there was no specific engagement or consultation with Indigenous peoples.

Instrument choice

A regulatory instrument is the only option considered appropriate. The legislation requires that several details of the legislative framework be set out in the regulations. As regulations are law, they continue to be in force until amended. Without the new Regulations, there would be a lack of consistency in terminology used in related statutory instruments and administrative burdens would continue to reduce the efficiency of the enforcement measures. Furthermore, without the new Regulations, there would be gaps in the legal framework as there would be no regulations to prescribe, among other things, the information that is to be released to the court, peace officers and provincial entities pursuant to Part I of the Act. Without the new Regulations, legislative amendments to Part I of the Act made by Parliament on these issues would be ineffective, and the Act and its regulations would be inconsistent.

Regulatory analysis

Benefits and costs

Computer system changes at the FPT level are required to implement former Bill C-78 amendments to Part I of the Act as well as the new Regulations.

The FOAEA system will need to be changed to develop new processes that will include the expansion of the federal trace and locate service to allow for the release of additional information to courts and more provincial and territorial entities for the purposes of establishing, varying and enforcing a family provision and for calculating or recalculating child support. The FOAEA system will also need to reflect the fact that the information to be released would vary depending on the entity that made the request and the purposes for which it is being requested. FOAEA system changes are also required for greater operational efficiencies (e.g. to address the removal of the application form and the affidavit requirement).

The costs associated with updating the FOAEA system will be covered by existing resources and funding to implement amendments to federal support enforcement legislation that was announced in the Budget 2017.

Provincial and territorial agencies will assume costs for computer system changes to reflect the changes made by the legislative amendments and the new Regulations.

Reduction of burdens

The new Regulations will reduce burdens for PESs and increase efficiency by removing the need to submit an affidavit. Removing the current requirement that an application form must be prescribed will provide administrative flexibility to the federal government should modifications to the application form be needed. The release of the SIN to a PES for enforcement purposes will allow a service to confirm the identity of an individual before taking enforcement action against them.

Improving access to justice and reducing poverty

The new Regulations will allow the implementation of former Bill C-78 legislative amendments that will enable provincial child support services and designated authorities under provincial and territorial interjurisdictional support orders legislation to make applications under Part I of the Act. These legislative amendments and the new Regulations will assist with not only the enforcement but also with the establishment and the variation of family support, as well as for the calculation or recalculation of child support amounts.

The release of financial information will assist courts and provincial entities in setting fair and accurate support amounts. It will also assist provincial child support services with the calculation or recalculation of child support. This will ensure that support payments are made to children and families in a timely manner.

The legislative amendments and new Regulations will significantly improve access to justice and help reduce poverty for children and parents going through a family breakdown.

Privacy safeguards

The new Regulations will ensure that there is compliance with privacy safeguards that are established under the Act.

For example, where an application is made to the court without notice to allow a court official to make an application for the release of information under Part I of the Act, the Minister of Justice must inform the other party that their information is to be released to the court. To do so, the Minister would send the other party a notice with a copy of the court order that authorized the court official to make the application. The new Regulations will prescribe the time and manner in which the Minister must send that notice with a copy of the order.

The new Regulations will also require that a new MOA be concluded between the federal government and the government of a PT before a support payor’s SIN and financial information are to be released to the PES. The release of this information to the PES was not covered under the MOAs signed in the late 1980s and early 1990s. The new Regulations will ensure that privacy safeguards are in place before additional information are released to the PES. The new MOA will also cover the release of information to other provincial entities (e.g. provincial child support services and designated authorities). This will allow for the Minister of Justice to fulfill the obligation under section 20 of the Act, which is to be satisfied that safeguards established in a MOA with the PT of the applicant are in place to protect the information before it is released. These new MOAs would not apply to courts. Safeguards relating to court applications are included directly in the Act. The MOAs would not apply to peace officers, as they would have their own separate MOAs pursuant to section 5.1 of the amended Act.

Small business lens

Analysis under the small business lens concluded that the new Regulations do not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no impact on business.

Regulatory cooperation and alignment

The new Regulations will align with the Divorce Act, the Federal Child Support Guidelines and the provincial and territorial family legislation. For example, the new Regulations will allow for the release of financial information to courts as set out under the Federal Child Support Guidelines or provincial/territorial child support guidelines to assist with the establishment and variation of support. Parenting terminology is also included in the new Regulations to reflect the terminology used in the Divorce Act and in some provincial and territorial family laws.

The new Regulations will benefit the provincial and territorial courts and provincial entities by giving them more tools to assist them with the establishment and variation of child and spousal support. They will also assist the provincial child support services with the calculation or recalculation of child support. The new Regulations will help ensure that failure to properly disclose financial information does not prevent the establishment of a fair support amount.

The new Regulations will reflect the ongoing cooperation efforts made by the FPT governments to align FPT enforcement tools. This will help with the enforcement of family support obligations by improving the efficiencies of the federal enforcement tools that are in place to assist support recipients in their enforcement activities.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) was done for former Bill C-78. Although federal family legislation is gender-neutral and there are no presumptions that favour parents of any gender, there are gender dimensions to child and spousal support. Canadian support enforcement data show that over 90% of support payors are men and over 90% of support recipients are women.

Given the significant gender imbalance in the receipt of child and spousal support, men and women will likely experience the effects of amendments to enforcement tools differently. Men who default on their support obligations may experience more pressure to pay. Women, who are more likely to lead single-parent families and experience greater economic challenges following separation and divorce, may see support payments increase.

The new Regulations are required following amendments made to their enabling statute. They are not expected to have differential impacts on the basis of identity factors including, but not limited to, gender, ethnicity, race, sexuality, religion, age, or income level.

Rationale

The new Regulations are needed to support the implementation of the legislative changes to Part I of the Act introduced in former Bill C-78. The new Regulations are the only means available to ensure consistent terminology between the enabling Act and the new Regulations and ensure the new Regulations are reflective of changes to FPT legislation and practices.

Failure to make the new Regulations would result in less efficient federal support enforcement tools. Without the new Regulations, the federal trace and locate service would only be offered to court officials, PESs and peace officers, and the information that could be released to them would be limited to the address of the person to whom the application relates and the name and address of their employer. The application form would continue to be prescribed and PESs would still be required to submit an affidavit in support of their application, which offers less flexibility for the federal government to amend the application form as needed and would continue to impose unnecessary administrative burdens on PESs.

By prescribing what financial information can be released to courts to establish or vary a support provision and to provincial child support services to calculate or recalculate child support, the new Regulations will assist them in determining fair and accurate support amounts. Providing financial information to courts and PESs to enforce a family provision will ensure that support payments are made to children and families in a timely manner. The new Regulations will significantly improve access to justice and help reduce poverty for children and parents going through a family breakdown. Finally, the release of the SIN to PESs for enforcement purposes will also increase the efficiency of their processes by allowing them to confirm the identity of an individual before taking any enforcement action against them.

Implementation, compliance and enforcement, and service standards

The majority of the provisions of the new Regulations, which include the provisions related to the release of financial information in the Income Tax and Benefit Return (T1) and related schedules, will come into force at the same time as the legislative amendments to Part I of the Act on November 15, 2023. The remaining provisions related to the release of financial information (i.e. those that relate to information contained in other CRA tax forms such as the Notice of Assessment and the Notice of Reassessment) will come into force a year later.

Implementation of the new Regulations will be carried out by the Department of Justice Family Law Assistance Services and the federal partners responsible for the designated information banks — namely ESD, the CEIC, and the CRA. Compliance with Part I of the Act and its regulations continues to be assured by those parties. Any costs associated with the new Regulations will be absorbed through existing resources and funding announced in the Budget 2017 for the implementation of amendments to federal support enforcement legislation.

New MOAs establishing safeguards for the protection of the information must be concluded between the federal government and the government of each PT before a payor’s SIN and financial information are to be released to the PES and before any information is to be released to provincial child support services and designated authorities. The ability of provincial child support services and designated authorities to apply and receive any information under Part I of the Act, and for PESs to apply and receive the SIN and financial information, may be delayed if a PT has not signed the new MOA before the coming into force of the new Regulations.

Collaboration is ongoing with the PTs to ensure effective and timely implementation.

Contact

Annick Boulay
Counsel
Family and Children’s Law Team
Family Law and Youth Justice Policy Section
Department of Justice
Email: commentsFOAEAA-GAPDA.commentairesLAEOEF-LSADP@justice.gc.ca