Some Considerations for Practitioners in Inter-jurisdictional Support Cases

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Appendix C: ISO Forms: Frequently Asked Questions

• Q: Why are the forms required? Can an affidavit be used instead?

  A: In some provinces and territories, the forms are prescribed by regulation, so they are formally required. In other provinces, regulation provides that the Designated Authority may specify required forms. In still other provinces, the forms are actually not formally required, but are certainly recommended. The forms were developed by a group of provincial/territorial officials with experience in processing inter-jurisdictional support cases. This group made efforts to ensure that the forms would prompt the users to provide all necessary information, particularly the information required by the ISO laws. Therefore, even in provinces and territories where the forms are only recommended and not required, there are practical reasons for using them: they provide the best bet for a complete application.

• Q: If the respondent's income isn't known, why request a specific amount on the forms? Shouldn't the Court in the other jurisdiction determine the amount once it receives the respondent's financial information?

  A: In several provinces, there are no lawyers appearing to assist the Court on ISO hearings dealing with ISO applications from other provinces. So, the ISO application must speak for itself. If the respondent files financial information, then the Court should certainly be able to determine the appropriate amount in accordance with the child support guidelines. However, if the respondent does not appear or does not provide financial information or appears without financial information and the ISO application does not indicate a requested amount, the Court may not make an order. If there is an amount requested on the front page of Form A, this should allow the Court to make an order in that amount in the absence of appropriate financial information from the respondent.

• Q: What evidence can be submitted to encourage the court to impute income to the respondent?

  A: Form F should prompt provision of the types of information that would allow a court to impute income. The more specific information about the respondent's circumstances, the better, but even average income information obtained from Statistics Canada, or other sources, could be helpful. When assisting the client in completing the ISO application, begin with the assumption that the respondent is not going to appear is not going to provide adequate financial information or will appear but without proper financial information. Doing a little homework can be incredibly helpful, here. Where there is no specific information about the respondent's income, aim high.^[13]

• Q: When is a determination of parentage needed?

  A: In general, ask for a determination of parentage if the parties were not married and there is no order determining parentage. Even if it isn't requested, the court in the respondent's jurisdiction could raise it at the hearing and paternity testing could be required. In most provinces and territories, a determination of parentage in the context of an ISO support application is considered to be a determination only for the purpose of the support proceeding. Where the respondent lives in the US, the US authority handling the child support application will likely require that parentage be determined as a prerequisite to child support being determined. This doesn't necessarily mean that a paternity test will need to be done, particularly if the respondent acknowledges that he is the father.

• Q: Does Form C get used, if it isn't necessary to obtain a determination of parentage?

  A: Use Form C even if a determination of parentage is not required. If there is already an order of parentage or the respondent is named as the parent in official provincial records, this documentation can simply be attached to Form C. It simply gives the court the evidentiary foundation for proceeding to deal with child support based on the respondent's duty to support the child.

• Q: What if paternity tests are required? Who arranges them and who pays?

  A: It depends. The courts that make orders for paternity testing in ISO cases do not always deal with the arrangement and payment issues. If the requirement of a paternity test is anticipated, it might be helpful to make a specific note on the forms indicating how the client wishes the arrangements to be made, for example, whether the client is willing to pay half the cost of the test.

• Q: What if the respondent's whereabouts are unknown?

  A: Even if the client does not have an address for the respondent, if the client has some idea about where the respondent might live, the Designated Authority might be able to send the application to the jurisdiction where the respondent is believed to be residing and request that authorities in that jurisdiction attempt to locate the respondent. The respondent's full name and date of birth are extremely helpful pieces of information in this situation. However, the client should be told that if the respondent cannot be located despite all efforts, a support order cannot be made. If this is the type of case where it might be an option for the Court in the client's province or territory to make an order, it may be prudent to consider whether there is any information to support a motion for a substitutional service order.

• Q: What happens if the Court in the other jurisdiction needs more information from the client?

  A: The Court in the other province or territory can ask the Designated Authority to contact the Designated Authority in the applicant's province or the applicant to request further information. The Designated Authority in the applicant's province or territory will then pass on this request to the applicant. The further information or evidence should normally be provided in an affidavit or statutory declaration so that it can be filed with the Court that is hearing the application.

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