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Checklists: Some Considerations for Practitioners in Inter-jurisdictional Support Cases
By Elizabeth Jollimore Q.C.
Some Considerations for Practitioners in Inter-jurisdictional Support Cases[1]
| Question | Answer |
|---|---|
| 1. Does the client already have a support order or agreement regarding this particular respondent and these particular children? | If not, see Question 6. |
| 2. If so, where was the support order made or agreement entered into? | If the client wants to enforce an existing support obligation, it might be registered with the maintenance enforcement program in the appropriate jurisdiction but collection may not have been successful. If so, get in touch with that office and provide all the information available about the "payor". Once the program learns that the payor lives in a "reciprocating jurisdiction", the program can make that request. |
| 3. Does the client have a copy of it? | |
| 4. Does the client want the existing support obligation enforced? | |
| 5. Does the client want the existing support obligation varied? | A Divorce Act support order can only be varied in accordance with that Act. Sections 17 or 18 — 19 set out the options. The procedure in sections 18–19 is not available if the respondent lives outside Canada. Part of the ISO deals with The client can vary a support order made in the client's own jurisdiction in that jurisdiction and serve the respondent ex juris. This type of variation application would not be pursuant to the ISO and the Court might decline to exercise jurisdiction to vary the order if the out-of-province respondent does not respond or requests that the application proceed as a support variation application pursuant to ISO. In most ISO laws in the common law provinces and territories, this part is entitled
In addition to having to determine if any of these conditions exists, ISO in most jurisdictions require that the Court must also determine whether a social assistance agency (within the jurisdiction or in another jurisdiction) has an interest in the application. |
| 6. Is or was the client married to the respondent? |
|
| 7. Does the client want or need a custody order as well? | If yes (and if the local Court is the appropriate jurisdiction to determine custody), then an application with the local Court seeking custody is necessary and the respondent must be served ex juris. A request for support (spousal support, child support or both) can be included. If a declaration of parentage is also appropriate, include that in the application as well. |
| 8. Where does the respondent live? | If the respondent lives in another Canadian jurisdiction, a local support order can be registered and enforced in the jurisdiction where the r espondent lives. |
| If the answer to all seven questions shown opposite regarding a respondent living in the United States is no, then the client will probably have to proceed with the ISO application route. However, instead of just using the ISO, it may be useful to supplement the ISO forms with American forms. | If the respondent lives in the United States and the answer to any of the following questions is "yes", it is possible to argue to the applicant's local Court that it ought to make an order against the US respondent: |
1. Is there any likelihood that it will be possible to serve the respondent personally in the applicant's province or territory? For example, is the respondent expected to come for a visit with the child in the near future? |
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2. Does the client think the respondent might agree to participate in the court proceeding in the home province or territory? |
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3. Did the respondent ever live with the child in the home jurisdiction? |
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4. Did the respondent ever live in the home province or territory and provide prenatal expenses or support for the child? |
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5. Can it be shown that the "acts or directives" of the respondent are responsible for the client and the child living where they do? For example, did they flee from a family violence situation to this jurisdiction because of family or other ties and could the choice of where to go have been foreseen in some way? Or did the respondent send the client and child to the jurisdiction indicating a plan to join them in a family move? |
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6. Did the respondent engage in sexual intercourse in the home province or territory and was the child conceived by that act of intercourse? |
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7. Did the respondent acknowledge parentage of the child for official records in the home province or territory? |
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| 9. If the respondent does not live in Canada or the US , does the respondent live in a "reciprocating jurisdiction"? | Many reciprocating countries (other than the US) will recognize a support order made on ex juris service based on the "creditor's jurisdiction" even if the respondent does not respond, so long as there is sufficient evidence of notice and the opportunity to participate. If the respondent lives in a non-reciprocating country, the ISO procedure is not an option, and the designated authority won't be able to provide direct assistance. |
| 10 . Which procedure is "better": An ISO support application or an application to the home Court? | If the client wants a divorce, ask for child support in the same proceeding. If the respondent is served, the Court has jurisdiction under the Divorce Act to order child support even if the respondent does not respond. Insufficient financial information might cause the Court to steer the client toward an ISO application. Alternatively, the Court might impute income and make an order. Whether the order is enforceable outside Canada will depend on the law of the country being asked to recognize and enforce it. Some countries will recognize the order because it was made in the context of a divorce proceeding; some will recognize it because it was made by a court in the "creditor's" jurisdiction. Note that none of the questions in the American law deal with whether the order was made in the context of a divorce proceeding. The same issues will apply to a Divorce Act support order as an order pursuant to local family support legislation in terms of whether the order will be recognized (and enforceable) in the United States if the respondent is a resident of the American state being asked to enforce the order. |
| An ISO application is more accessible: a person can complete the forms on their own. | |
| An ISO doesn't require the other party to be served and there is usually no filing fee. | |
| The application will be reviewed for completeness by the designated authority and will usually be sent to the respondent's jurisdiction within a couple of weeks of it being submitted. | |
| There is specific statutory authority in the common law provinces and territories for retroactive orders with an ISO application | |
| An order under local family support law or the Divorce Actwill apply the applicable Child Support Guidelines, which might produce a higher amount than the applicable child support laws of the respondent's jurisdiction. | |
| A child support order under Canadian support law or the Divorce Act will normally continue until the child is no longer a child as defined in the applicable legislation (i.e. for several years after the child reaches the age of majority). A U.S. child support order will usually end automatically when the child reaches the age of majority regardless of whether the child continues with post-secondary education unless the parties so stipulate or the order specifies otherwise. | |
| If the respondent applies to vary the order, the law of the respondent's state will require the respondent to apply to the jurisdiction where the original order was made so long as the client or the child lives there. |
Endnote
[1] Adapted from Tracy Morrow, "Some Considerations for Practitioners in Inter-jurisdictional Support Cases."
