New Brunswick Government | Purvis Culbert Law

The New Brunswick Government recently amended Section 129(3) of the Family Services Act to consider other parties, including grandparents’ access to their children. Section 129(3) of the Act used to state that “upon application the court may order that either parent or any person shall have access to a child”. The New Brunswick Court of Queen’s Bench referred to this section in cases such as, G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 regarding whether grandparents have rights to access their granchildren. In GG, supra, Madam Justice D’Entremont referred to Morecraft, which stated “[t]here is no automatic right of access to third parties“. In an earlier post (see here), I noted the difficulty the wording of section 129(3) posed to questions regarding grandparent’s access to their grandchildren.

On May 5, 2017, the New Brunswick Government passed the bill–An Act to Amend the Family Services Act. This Act essentially replaces the current section 129(3) with the following:

129(3)Repealed: 2017, c.22, s.1

129(3.1)On application, the court may order, on the basis of the best interests of the child, that either parent, a grandparent, another member of the child’s immediate family or any other person shall have access to a child, whether or not an order for custody has been made with respect to the child.

129(3.2)An order under subsection (3.1) shall be made subject to the terms and conditions that the court determines.

129(3.3)On application by a grandparent or another member of the child’s immediate family, other than a parent or guardian, the court shall take into consideration the willingness of each parent or guardian of the child to facilitate access and the need for making an order for access.

129(3.4)An order under subsection (3.1) may provide that access be exercised in the form of visits, oral or written communication or by any other means of communication.

129(3.5)The court may vary or discharge an order under subsection (3.1) at any time.

These amendments broaden the items a judge must consider when making an order for access to a child to “grandparents” and “another member of the child’s immediate family.” In addition, section 129(3.4) specifies that access may be through visits or other means of communication (likely email, Facetime, Skype, etc.) These are likely welcomed changes for grandparents who have, until now, not been explicitly mentioned. As stated in my post <a href=”https://www.purvisculbertlaw.ca/proposed-changes-to-family-services-act-in-new-brunswick-to-consider-role-of-grandparents/”>here</a>, however, how these amendments affect grandparent’s access to their grandchildren will depend on how courts in New Brunswick interpret and apply these provisions in future

Here are some links to more information on these amendments:

– Copy of An Act to Amend the Family Services Act: https://www.gnb.ca/legis/bill/pdf/58/3/Bill-49.pdf

– Link to status of the bills in NB Legislature: https://www1.gnb.ca/legis/bill/print-e.asp?legi=58&num=3&page=4

– Link to current version of the Family Services Act: https://www.canlii.org/en/nb/laws/stat/snb-1980-c-f-2.2/latest/snb-1980-c-f-2.2.html

Many senior clients have asked us questions about how the recent provincial budget will affect them. Before analyzing how the proposed changes may affect seniors, it’s important to understand the current system in New Brunswick. The amount a senior pays per month for nursing home care is based on “net annual income”. When a senior applies for assistance for nursing home care, under the Contribution Regulation, NB Reg 2009-75 under the Nursing Homes Act, the Minister of Social Development looks first at the person’s net annual income.

“Net Annual Income” is defined under the Regulation as “the annual income of an applicant or recipient and his or her spouse or common-law partner as calculated under section 7 less the deductions as calculated under section 8.” The calculation of net annual income includes income from several sources including pensions, old age security, war veteran’s allowance, EI payments, family assistance, long-term disability, income from property, and so on. The deductions under the Regulation include income taxes, health insurance premiums, comfort and clothing allowance, etc.

After calculation of income under a formula attached to the Regulation, an applicant to a nursing home pays what the Minister decides the person can afford and then the government subsidizes additional monthly expenses the person cannot afford. This is defined as “income testing.” This is contrasted with a “means test”, which would include a senior’s family home, assets and income into account.

In its 2015-2016 budget, the New Brunswick Government announced it would still exempt a senior’s family home from the assessment of ability to pay, but would no longer exempt liquid financial assets such as savings or investments. This is a change from the current status, where the definition of net income does not include savings or investments, unless the senior is drawing income from these sources.

The recent budget removes a $113 cap on the daily amount seniors pay for nursing home care and moves towards the true cost of daily care to $233 per day. Finally, the budget may increase payments for seniors covered under Medavie Blue Cross.

Exactly how changes to the contributions regulation will affect seniors depends on how the legislation defines “liquid assets” to be considered in the contribution formula. One thing is certain: a person’s contributions for nursing home care will likely increase if that person has savings and investments. Additional costs will likely lead people considering nursing home care to look for ways to shelter funds from the equation.

Tag: New Brunswick Government

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