Some Considerations for Practitioners in Inter-jurisdictional Support Cases

By Tracy Morrow^{Footnote 1}

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Introduction

What is an inter-jurisdictional support case and what special considerations or factors apply to this type of case? The purpose of this paper is to answer those questions in the context of the common law provinces and territories, and to remove some of the confusion surrounding inter-jurisdictional support cases.

An inter-jurisdictional support case is one in which the parties live in different jurisdictions. Those jurisdictions could refer to either different provinces and territories or different countries. These types of cases are often referred to as "ISO" cases. ISO is the acronym for provincial and territorial inter-jurisdictional support orders legislation (entitled The Inter-jurisdictional or Interjurisdictional Support Orders Act depending on the province or territory) which governs the establishment, variation, registration, and enforceability of family support orders in the common law provinces and territories when those orders are made in other provinces pursuant to provincial legislation or in foreign countries that have been designated as "reciprocating jurisdictions"^{Footnote 2}.

Constitutional Context

The Canadian Constitution divides responsibilities to make laws on different subjects between the federal government and the provincial and territorial governments.

The responsibility to make laws concerning family support obligations is a shared responsibility. The provinces and territories are responsible for family support laws, except in the context of divorce, and for most aspects of the enforcement of support orders. Each province and territory runs a family support enforcement program which collects and disburses family support payments pursuant to orders and agreements registered with these programs.

The federal government is responsible for the law governing family support obligations in proceedings pursuant to the Divorce Act.^{Footnote 3} The federal government does not run its own enforcement system. Rather, it supports the provincial and territorial systems by providing identifying information, garnishing federal monies and enabling the denial of certain federally-regulated licenses of persons in persistent default of their family support obligations. These supportive measures are authorized by the Family Orders and Agreements Enforcement Assistance Act.^{Footnote 4} The information and garnished federal monies are then sent to the provincial and territorial programs.

What does this have to do with ISO?

Since the provinces and territories each have the power to make their own laws in certain fields, they are separate entities when it comes to issues falling within their own jurisdiction. This means that if a court in a province makes an order under its provincial law against someone living outside the province, the order may not be "recognized" (given effect) outside of the province where the order originated. More than fifty years ago, it was decided that something needed to be done to overcome the cumbersome common law procedure to enforce support orders between provinces and territories. Most provinces and territories eventually enacted reciprocal enforcement of maintenance or support orders acts (REMO/RESO) to facilitate the enforcement of support obligations between parties residing in different jurisdictions.

These laws addressed the problem by providing a simplified way for an order made in one jurisdiction to be made enforceable in another jurisdiction. The laws also set out a procedure in which a person seeking support (or seeking to vary support) could start an application in their own province that could ultimately result in an enforceable support order made in the province where the respondent lived. In recent years, it became apparent that this process could be improved.

Consequently, on January 31, 2003, provinces and territories began implementing new ISO legislation to repeal and replace REMO/RESO legislation. The new legislation was based on a model uniform law developed by a committee of family law officials from the provincial, territorial, and federal governments. As of January 1, 2006, new Inter-jurisdictional Support Orders legislation is in force in all common law provinces and territories. A law based on the model uniform act and adapted to the Québec civil law system has also been passed in Québec but is not yet in effect.

REMO, and now ISO, legislation has two main purposes:

• to enable family support orders and agreements made outside of a jurisdiction to be enforced in the jurisdiction with the greatest ability to do so (usually where the support payor resides); and
• to enable a party in one jurisdiction to apply to establish or vary a family support order without having to go to or retain counsel in the jurisdiction where the other party resides.

Appendix A is a thumbnail sketch of ISO legislation. Appendix B contains a list of links to the ISO legislation in each common law province and territory as well as additional reference information.

You will also see a reference to the "designated authority" throughout this paper. Each province and territory has a designated authority with responsibilities pursuant to its ISO Act. The ISO Act provides for delegation of the designated authority's powers or duties. Each province and territory has organized these responsibilities in its own way. Where this paper suggests that the designated authority may be able to provide you with additional information, the designated authority may need to refer you to someone else. There is a network of provincial and territorial officials with responsibilities and expertise in this area, including contacts with appropriate officials in other countries. In appropriate circumstances, designated authorities can draw upon this resource by contacting the appropriate official in their own jurisdiction who may be able to provide additional contacts or information.

Divorce Act

In 1986, the federal government enacted major revisions to almost every section of the 1968 Divorce Act. The difficulties in enforcement of family support orders remained of significant concern. This new legislation applied procedures similar to those provided in provincial legislation to family support orders at the federal level where the parties resided in different provinces and territories.

Sections 18 and 19 of the Divorce Act contain REMO/RESO-like provisions in that they provide for the granting of a provisional variation order in one province or territory and a confirmation hearing in another province or territory.

Once again, the federal government is considering amending the Divorce Act so that its provisions respecting inter-jurisdictional support orders will be based on the model uniform ISO legislation adopted by the provinces and territories.

What does this mean?

As mentioned above, the purpose of this paper is to try to remove some of the confusion surrounding inter-jurisdictional support cases and to help you to give the best advice possible to your clients so the best course of action can be taken. Unfortunately, there is not a "one size fits all" approach. In many cases, your clients will have to make some choices. In other cases, there may be only one route available. Unfortunately, it will not always be possible to know which choice will be the most effective when you begin. In situations where there is judicial discretion, this may be exercised in a certain way in one province and in another way in another. The aim of this paper is to outline some of the considerations involved when you have a family support case with inter-jurisdictional elements, but it cannot tell you which procedure will work in any particular case.

Most of this paper will address considerations for commencing an application to establish or vary support, but it will also identify some issues to keep in mind when your client is a respondent to an application in an inter-jurisdictional case.

Where to begin?

A good place to begin is to ask the questions set out below. Hopefully the answers will help determine how to proceed.

• Question 1: Does the client already have a support order or agreement regarding this particular respondent and these particular children?
  If so, where was the support order made or agreement entered into?
  Does the client have a copy of it?
  Does the client want the existing support obligation enforced or varied?

  If the client wants to enforce an existing support order or agreement, it might already be registered with the maintenance enforcement program in the appropriate province or territory but collection may not have been successful. If this is the case, it might be that the client simply needs to get in touch with that maintenance enforcement office and provide it with all the information available about the "payor". If the maintenance enforcement program wasn't previously aware that the payor lives outside the province, it would not have been able to ask another jurisdiction to enforce the order. Once the program learns that the payor lives in a "reciprocating jurisdiction", the program can make that request. This list will include all other Canadian provinces and territories, the United States of America or specified American states, and many other countries in the world.

  If there is an existing support order or agreement and the client is satisfied with the amount set out in the order, steering the client towards the maintenance enforcement program is the most useful advice you can provide. Unfortunately, if the payor lives in a non-reciprocating jurisdiction, the maintenance enforcement program cannot provide any assistance. However, you may wish to contact the government department in your province or territory responsible for ISO cases to ask for suggestions.

  Inter-jurisdictional variation applications are addressed later in the paper. If there is no existing support obligation, go on to Question 2.

• Question 2: Is or was the client married to the respondent?

  If not, then only provincial legislation will need to be considered, as the Divorce Act will not apply. There are still choices, though:

  1. Should the client file an application with the Court in the home province or territory seeking child support pursuant to the applicable provincial or territorial family support law and have the "respondent" served ex juris (outside of the province or territory)?

     OR

  2. Should a Support Application pursuant to The Inter-jurisdictional Support Orders Act be submitted?^{Footnote 5}

  It depends. Answering Question 3 will help guide the client toward the best answer in the particular circumstances.

  To determine whether an application pursuant to the Divorce Act is the most appropriate course of action, see Question 6.

• Question 3: Does the client want or need a custody order as well?

  If the answer is yes, (and if the Court in the home province or territory is the appropriate jurisdiction for the determination of custody) then an application to the Court in the home province or territory 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 in this application. If a declaration of parentage is also appropriate, include that in the application as well.

  Your clients need to know that if the respondent is properly served and does not respond to the application, the Court will likely make a custody order; it might make a declaration of parentage without the other parent present; but it might or might not make a child support order without the other parent. Even where the Court determines that personal jurisdiction over the out-of-province party can be established, the Court might decline to exercise that jurisdiction on the issue of child support. In the past, when REMO/RESO laws were in effect in the common law provinces, the Court might have made a provisional order ^{Footnote 6} for child support. Now, the Court might decline to make the order and suggest that an ISO Support Application be made so that the child support application can be heard by a court in the jurisdiction where the respondent resides.

  The Court might decide to do this because there isn't enough evidence available to enable a proper determination of the respondent's income. A financial disclosure order made by a Court in your client's province or territory isn't always that effective when the respondent lives in another jurisdiction. However, there are ways to provide some evidence to enable the Court to impute income and make a support order should the Court decide to proceed. This is addressed later.

  The Court might also decline to make a child support order by default against an out-of-province party based on the understanding that it won't be enforceable in the jurisdiction in which the respondent lives. Depending on where the respondent resides, the Court might be right; or might not be. This leads to the next question.

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