Bill C-78 proposes changes to the way information is released

  • January 16, 2019
  • Katherine Batycky

Bill C-781 contains proposed changes to the Family Orders and Agreements Enforcement Assistance Act2 that would shorten its title and at the same time allow for more expansive use of that Act by individuals and provincial agencies that may already use the current Act.

Section 42 of Bill C-78 proposes to reduce the long title of the FOAEAA to

An Act respecting the release of information, garnishment of moneys payable by Her Majesty in right of Canada and denial of licences in relation to family orders.

A review of the proposed changes to Part 1 of FOAAEA reveals a definite expansion of possible use of the Act as well as new provisions that protect parties in cases where violence is a risk.

The summary to the bill includes a statement that the amendments proposed for FOAEAA are to, among other things, (a) allow the release of information to help obtain and vary a support provision; and (b) expand the release of information to other provincial family justice government entities.

In the current Act, the federal government provides a vehicle for release of information from certain federal data banks to provincial/territorial enforcement bodies, and police officers. 

Bill C-78 includes new provisions outlining procedures and obligations when the person making the application for the release of information is an individual rather than a provincial enforcement agency or a peace officer. In addition, it expands the use of this part of Act to include not only the need to enforce a breach of a family provision but also to seek to obtain or vary a support provision.

The changes to definitions echo new parenting terminology contained in the proposals for change for the Divorce Act.  For example:

  • “Family provision” is changed to mean “a support provision, a parenting provision, a contact provision, a custody provision or an access provision.
  • “Support provision” is changed to mean “a provision of an order for maintenance, alimony or support.”
  • “Access provision” is changed to mean a “provision of an order providing for access to a child.”
  • “Contact provision” is defined as a “provision in an order made under subsection 16.5(1) or (2) of the Divorce Act or a provision of a similar nature in an order made under provincial law.”
  • “Parenting provision” is defined as “a provision in an order made under subsection 16.1(1) or (2) of the Divorce Act of a provision of a similar nature in an order made under provincial law.

Additional definitions provide the basis for the expansion of the use of the provisions of the Act: “Information bank director” is now defined as “a person who is designated by the regulations as the information bank director for a given information bank;” “Central authority” is “any person or entity that is acting as a central authority for the purposes of a convention prescribed by the regulations and that is designated in an agreement with a province under section 3.” “Designated Authority” means “any person or entity that is responsible under the Divorce Act or a provincial Act for processing inter-jurisdictional support applications and that is designated in an agreement with a province entered into under section 3;”and “provincial child support service” means any entity that is designated in an agreement with a province entered into under section 3, and that calculates or recalculates the amount of child support.”

“Order” is defined to mean an order, judgment, decision or agreement – whether interim or final – that is enforceable in a province, “unless a contrary intention appears.”

Bill C-78 replaces a large part of Part 1 of the current Act and provides particular rules for applications for release of information, with specific sections that pertain to applications made by an Individual, and separate provisions that pertain to by a peace officer who is investigating a child abduction under section 282 or 283 of the Criminal Code, or  a provincial enforcement service, a provincial child support service, a “designated authority” or a central authority responding to a request for assistance made under a convention that is prescribed by the regulations, or to obtain assistance with the processing of an application made under a convention.

Any person or body seeking information must ask the court to authorize an official of the court to make the formal application to the Minister of Justice for the release of information. The court application may be brought ex parte. The proposed changes set out specific conditions that must be fulfilled before the application is to be successful.

Where the application relates to a support provision, the revised section 8 states:

(a) the affidavit in support must state the reasons for making the application and

(b) if a variation of a support provision, then a copy of the order that contains the support provision,

(c) if the application is made on an ex parte basis, then the affidavit must also state that reasonable steps have been taken to locate the person whose information is being sought and provide the particulars of the steps; and

(d) if the ex parte application is made by an individual, the application must be accompanied by:

(1) the results of a recent criminal record check in respect of the applicant and

            (2) an affidavit that states the following: (i) that the sole purpose of the application is to obtain information for the establishment or variation of a support provision, (ii) outline if there is any court order, agreement, undertaking or recognizance or any other document of a similar nature that restricts the applicant’s communication or contact with the other person or child who may be subject of the support provision or if there is a proceeding respecting such a provision (iii)  state whether or not the applicant has caused or attempted to cause physical harm to the person, child/ren or caused them to fear for their safety or security or that of another person, and (iv) state whether or not the applicant has charged with or been found guilty of an offence against the other person or child/ren.

Where the application relates to the establishment or variation of a support provision, the revised section 9 states the following:

(a) the affidavit in support must state the reasons for making the application and

(b) allege a breach of the family provision and if the family provision is a parenting provision, contract provision, custody provision or access provision is believed to have with them the child/ren who is/are the subject of the provision and include a copy of the order containing the family provision

(c) if the application is made on an ex parte basis, then the affidavit must also state that reasonable steps have been taken to locate the person , child or children and that they have not been located and provide the particulars of the steps; and

(d) if the ex parte application is made by an individual, the application must be accompanied by:

(1) the results of a recent criminal record check in respect of the applicant and

            (2) an affidavit that states the following: (i) that the sole purpose of the application is to enforce the family  provision, (ii) outline if there is any court order, agreement, undertaking or recognizance or any other document of a similar nature that restricts the applicant’s communication or contact with the other person or child who may be subject of the support provision or if there is a proceeding respecting such a provision (iii)  state whether or not the applicant has caused or attempted to cause physical harm to the person, child/ren or caused them to fear for their safety or security or that of another person, and (iv) state whether or not the applicant has been  charged with or found guilty of an offence against the person, child  or child/ren.

Under section 10 the court may make an order in writing authorizing an official of the court to make an application seeking release of information  to the Minister of Justice ( which is made  under the provisions of section 12 of the Act) if the court is satisfied that that sole purpose of the application is to obtain information for the establishment or variation of a support provision or for the enforcement of a family provision, that the order is not likely to jeopardize the safety or security of any person, and in the case of an ex parte application, that reasonable steps have been taken to locate the person, child or children (as the case may be).

Once the order is granted, an official who is authorized to do so under section 10, may apply to the Minister to have the information banks searched.

There is no current indication who that “official” may be; regulations will likely provide details.

Under the new section 12.1, the Minister will only release the information to an individual making an ex parte application if the Minister has first sent to the other person (whose information is being sought) a copy of the Order that authorizes the application along with a notice informing them that information will be released. However, there is an exception to this requirement: under section 11 the court may order that the Minister shall not send to the other person a copy of the order and the notice.

The confidentiality of the information is protected by new section 13 which states that the official who receives the information shall give the information to the court that granted the authorization, and the information shall be sealed and kept in a location to which the public has no access. However, the section also states that for the purpose of establishing or varying a support provision or enforcing a family provision, the court may disclose the information to any person, service or body, or official of the court that it considers appropriate. The court may also make an order necessary to protect the confidentiality of the information.

Sections 14,15, 15.1, 16 and 16.1 respectively set out the specific procedure for applications if made by a peace officer who is investigating a child abduction under section 282 or 283 of the Criminal Code (14), a provincial enforcement service (15), a provincial child support service, in order to calculate or recalculate the amount of child support, (15.1),a “designated authority” or a central authority to respond to a request for assistance made under a convention that is prescribed by the regulations, or to obtain assistance with the processing of an application made under a convention (16.1.)

The process for the search of the information banks is set out in sections 17 to 22: on receipt of the application the Minister shall immediately transmit a search request for information to the directors of the various information banks. Under subsection 17(2) of the proposed changes, the Minister may transmit a search request on the Minister’s own initiative for the purpose of locating a person named in a request for assistance made under a convention prescribed by the regulations, or to locate a person named in an application made under a convention prescribed by the regulations.

Similar to the current Act, subsection 17(4) provides that the bank directors shall search the information banks immediately upon receipt of the search request, and then “periodically during the 12-month period following the receipt of the request.”

All information obtained during the search shall be sent by the information bank director to the Minister. The Minister shall release the information to the applicant under section 19.1 with the proviso contained in section 20 that the information will be released to an applicant who is  a provincial enforcement service, provincial child support service, designated authority or central authority only if the province of that specific application has entered into an agreement under section 3 and safeguards provided for in the agreement are in place.

Under section 22, as in the current Act, regulations may be made, including for the purpose of prescribing the information  that must be contained in an application for the release of information, and prescribing the time and manner in which an application for the searching of information banks and the release of information may be made, designating the information banks that may be searched, setting out the time and manner in which searches for information are to be conducted and prescribing the information that is released to an applicant, which information may vary according to the applicant to whom the information is released.

It should be noted that in 2018 a Regulation3 under the current Act was amended to provide updated information that can be released to include (a) information banks controlled by the Department of Employment and Social Development, namely, Canada Pension Plan Record of Earnings, Canada Pension Plan — Retirement, Disability, Survivors and Death Benefits (individual), International Social Security — Domestic and Foreign Benefits — Computer Master Benefit Data, and Employment Insurance Program Investigation. Documents that could be release include, Record of Employment (Third Copy), Benefit and Overpayment File and Social Insurance Number Register, as well as information both individual tax returns and payment processing and business number and program account registration information in the possession of CRA.

Given the proposed expansion of use of the application under the bill, it is hopeful that the regulations under revised Act would include at least these specific banks.

Bill C-78 also provides changes to the Act as it relates to permitting the garnishment of federal monies to recover certain expenses related to family law including extension of the binding period of a garnishment summons. Those changes will be reviewed in a subsequent article.

Katherine Batycky is an associate with Haber & Associates in Burlington, Ont.

End notes

1. 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.

2. Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4

3. SOR/2018-63