The Divorce Act Changes Explained: Part II

An inter-jurisdictional support case is one in which the parties live in different jurisdictions. Those jurisdictions could refer to either different provinces or 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). It 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 or territories pursuant to provincial/territorial legislation or in other countries that have been designated as "reciprocating jurisdictions".^Footnote5 A law based on the common law provinces/territories’ model uniform ISO legislation and adapted to the Québec civil law system was passed, but is not in effect.^Footnote6 In Québec, the current applicable inter-jurisdictional legislation is An Act respecting reciprocal enforcement of maintenance orders (AREMO).^Footnote7

Constitutional Context

The Canadian Constitution distributes legislative powers between the federal and provincial/territorial legislatures. As a result, the power to make laws concerning family support obligations is a shared jurisdiction. The provinces and territories have jurisdiction over family support, except in the context of a Canadian divorce, and for most aspects of the enforcement of support orders. Each province and territory runs a family support enforcement program (or maintenance 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. The federal government does not run its own enforcement system. Rather, it supports the provincial and territorial systems by: 1) providing information to help locate a support payor, 2) garnishing federal moneys to satisfy a support obligation, and 3) enabling the suspension or denial of certain federal licenses such as federal marine and aviation licenses and including the Canadian passport, of persons in persistent default^Footnote8 of their family support obligations. These supportive measures are authorized by the Family Orders and Agreements Enforcement Assistance Act (FOAEAA).^Footnote9

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 (provincial/territorial) jurisdiction. This means that if a court in a province makes a support order under its provincial law (i.e. non-Divorce Act case) against someone living outside the province, the order may not be "recognized" (given effect) outside of the province where the order originated. To address the challenges of inter-jurisdictional enforcement, as early as 1946,^Footnote10 most provinces and territories began enacting reciprocal enforcement of maintenance or support orders acts (REMO/RESO) to facilitate the enforcement of support obligations between parties residing in different jurisdictions.

REMO/RESO laws addressed the challenges associated with the enforcement of foreign or extra-provincial maintenance orders 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/territory that could ultimately result in an enforceable support order made in the province/territory where the respondent lived. REMO/RESO legislation set out a two-step process whereby an applicant was required to obtain a provisional order in their province/territory of residence and request confirmation of that order by a court in the respondent’s province/territory.

Over time, however, it became apparent that the REMO/RESO process could be improved. Consequently, on January 31, 2003, provinces and territories began implementing ISO legislation to repeal and replace REMO/RESO legislation. The new ISO legislation was based on a model uniform law developed by a committee of family law officials from the provincial, territorial, and federal governments. ISO legislation has two main purposes: 1) 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 2) to enable a party in one jurisdiction to apply to establish or vary a family support order without having to make a court application in the jurisdiction where the other party resides. As of January 1, 2006, ISO legislation is in force in all common law provinces and territories.

ISO legislation introduced a one-step forms-based process^Footnote11 that allows a person to send an application to establish or vary a support order through a designated authority in their province/territory to a designated authority in another province/territory where their request will be processed. The designated authority, a provincial/territorial administrative body, having reviewed the application (a package of forms including sworn evidence), will submit the package to the court on behalf of the applicant to obtain a decision. ISO legislation effectively gives full faith and credit to support orders made in other provinces and territories. ISO also includes provisions governing registration of extra-provincial /extra-territorial and foreign support orders for enforcement. It also restricts the ability to apply to set aside registration of foreign support orders based on jurisdictional grounds. 

The inter-jurisdictional process under Québec’s legislation, AREMO,^Footnote12resembles the common law provinces’/territories’ previous system under REMO/RESO legislation in that it is restricted to provisional variation applications made by creditors. As a result, the recovery of family support in Québec involves a two-step process, which requires the applicant to obtain a provisional order in the jurisdiction where they reside and then have the order confirmed by a court in the respondent’s jurisdiction before action can be taken.

APPENDIX B contains reference information, including a list of links to provincial and territorial ISO legislation, forms and designated authorities.

Practice Tips

• If your client is located in a common law province/territory (and it is a non-Divorce Act case), then look to the applicable ISO legislation.
• If your client is in Québec (and it is a non- Divorce Act case), then look to Québec’s AREMO legislation.
• When a support order is made it should specify under what legislation it is being made – i.e. provincial/territorial ISO legislation/Québec AREMO or the federal Divorce Act.
• If you have questions about the process, contact the provincial or territorial designated authority in your client’s province/territory of residence.