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Administrative Recalculation of Child Maintenance Regulations
made under Section 55 of the
Maintenance and Custody Act
R.S.N.S. 1989, c. 160
O.I.C. 2010-182 (April 20, 2010), N.S. Reg. 66/2010
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;
“child maintenance order” means a requirement in an order of a court in or outside the Province that is enforceable in the Province for the payment of maintenance or support for a child, and includes an agreement that is registered with the court in accordance with Section 52 of the Act, but does not include a provisional order that has not been confirmed in accordance with the Interjurisdictional Support Orders Act;
“Director” means the Director of Maintenance Enforcement appointed under the Maintenance Enforcement Act;
“financial information” means the income information of the payor required under subsection 21(1) of the Guidelines for the most recent taxation year only;
“payor” means a person who is required under a child maintenance order to pay child maintenance;
“recalculation authorization order” means an order made in accordance with Section 5;
“recipient” means a person entitled under a child maintenance order to receive child maintenance on their behalf or on behalf of another person;
“recalculation program” means the Provincial child support service established by these regulations to review and recalculate the table amount of child maintenance orders at prescribed intervals;
“recalculation clerk” means a recalculation clerk appointed under Section 4;
“recalculated order” means an order for recalculated child maintenance issued by a recalculation clerk under Section 11;
“recalculated table amount” means the table amount payable under a recalculated order;
“review date” means the date determined in accordance with Section 9 for reviewing the table amount;
“shared custody” means shared custody as described in Section 9 of the Guidelines;
“table amount” means the amount referred to in clause 3(1)(a) of the Guidelines to be paid as child maintenance.
Recalculation program established as child support service
3 The recalculation program is established by the Department of Justice as a child support service.
Recalculation clerk
4 (1) A court administrator employed in the Family Division of the Supreme Court of Nova Scotia may appoint an officer or employee appointed under the Court Officials Act as a recalculation clerk for the Family Division of the Supreme Court of Nova Scotia.
(2) The duties of the recalculation clerk are to do all of the following:
(a) review and recalculate 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 Guidelines;
(b) collect financial information and determine annual income in accordance with the Act, the regulations and the Guidelines;
(c) perform any duties and functions as required by these regulations.
Court may make recalculation authorization order
5 Except as prohibited under Section 7, a court may order, either separately or as a part of any other order, that the table amount of a child maintenance order be recalculated at regular intervals in accordance with these regulations, whether or not a payor or recipient applies for a recalculation authorization order in the originating process.
Application for recalculation authorization order
6 (1) A payor or recipient may apply to the court for a recalculation authorization order in respect of the table amount of a child maintenance order at any of the following times:
(a) when the child maintenance order is first made or registered with the court;
(b) after the child maintenance order has been made or registered with the court;
(c) when an application is made to vary the child maintenance order.
(2) To apply for a recalculation authorization order, a payor or recipient must do 1 of the following:
(a) if the application is an originating application under clause (1)(a), file with the court a completed application and intake form in accordance with Rule 70 of the Civil Procedure Rules;
(b) if the application is a variation application under clause (1)(b) or (c), file with the court a completed variation application and form in accordance with Rule 70 of the Civil Procedure Rules.
(3) A payor or recipient may apply to a court for a recalculation authorization order without notice to the other party if the only relief sought is a recalculation authorization order.
(4) A recalculation authorization order expires when the child maintenance order to which it applies is varied, but, as permitted under Section 5, a court may issue a new recalculation authorization order in addition to or as part of the variation order.
When recalculation authorization order must not be made
7 A court may not make a recalculation authorization order in any of the following circumstances:
(a) the payor or recipient ordinarily resides outside of 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, as determined under the Guidelines, is over $150 000;
(e) the child maintenance amount payable takes undue hardship into account in accordance with Section 10 of the Guidelines.
Mandatory conditions of recalculation authorization order
8 A recalculation authorization order must include all of the following conditions:
(a) that the payor and the recipient must notify the recalculation program in writing of a change to any of the following contact information for them no later than 10 days after the date of the change:
(i) mailing address,
(ii) e-mail address,
(iii) telephone number,
(iv) fax number;
(b) that the payor must file their financial information with the court no later than 60 days before the review date;
(c) for a recalculation authorization order that is granted without notice to the payor, that the recipient must serve the payor with a copy of the recalculation authorization order and file proof of service with the court without delay.
Review date
9 The review date for recalculating the table amount under a recalculation authorization order is the day and month in every year that is the anniversary date of the recalculation authorization order.
Court must file recalculation authorization order with Director
10 A recalculation authorization order must be filed by the court with the Director no later than 5 working days after the order is made.
Recalculation clerk’s review and recalculation
11 (1) At least 40 days before each review date, a recalculation clerk must review and recalculate the table amount by doing all of the following:
(a) reviewing the financial information received;
(b) determining the annual income of the payor in accordance with Section 13;
(c) subject to Section 12, recalculating the table amount based on the annual income of the payor, and rounded to the nearest dollar amount;
(d) issuing a recalculated order and sending 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) A recalculated order is not invalid because a recalculation clerk fails to perform a review and recalculation before the deadline in subsection (1).
Recalculation not to be performed
12 (1) A recalculation clerk must not recalculate the table amount of a child maintenance order if the recalculation authorization order in respect of the child maintenance order has expired or has been varied or substituted by further order of the court.
(2) If a recalculation clerk determines that subsection (1) prevents them from recalculating the table amount of a child maintenance order, the recalculation clerk must notify the payor and the recipient of the recalculation clerk’s determination and the reasons for it as soon as practicable.
(3) If the recalculation clerk believes a recalculation authorization order was made in one of the circumstances listed in Section 7, the recalculation clerk must immediately notify the payor and the recipient that no further action can be taken until the order is varied or further direction is received from the court.
Determining annual income of payor
13 (1) If a payor has filed financial information, the annual income of the payor must be determined in accordance with Section 16 of the 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 issued against the payor.
Information included in recalculated order
14 A recalculated order must be in writing and must state all of 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 13, 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 have a right to apply to a court under Section 16 to vary the recalculated table amount.
Start date for payment under recalculated order
15 A payor who has a recalculated order issued against them is liable for paying the recalculated table amount on and from the review date.
Right to apply to vary recalculated table amount
16 No later than 30 days after the date they are sent a recalculated order under Section 11, a payor or recipient who does not agree with the recalculated table amount, may apply to a court for an order to vary under subsection 23(3) of the Act.
Stay pending application to vary recalculated table amount
17 If an application is made under Section 16 to vary a recalculated table amount, the recalculated order is stayed pending the determination of the application, and the most recent of the previous child maintenance orders and recalculated orders remain in effect.
Withdrawal of application to vary
18 If an application made under Section 16 to vary a recalculated table amount is withdrawn before the determination of the application, whether or not the application is withdrawn before or after the review date, a payor is liable for paying the recalculated table amount in accordance with Section 16, as if the application not been made.
Filing recalculated order
19 A recalculation clerk must file a recalculated order with the Director, together with the financial information that was provided to the recalculation clerk.
Documents sent to payor or recipient by regular mail
20 (1) A notice or order that a recalculation clerk must send to a payor or recipient under these regulations may be sent by regular mail to the last known address of the person in the records of the recalculation program.
(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.
Effect of recalculation
21 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.