Some Considerations for Practitioners in Inter-jurisdictional Support Cases

Divorce Act

A support order made pursuant to the Divorce Act can only be varied in accordance with that Act. In particular, it can only be varied by "a court of competent jurisdiction", which means a superior court in a Canadian province or territory.

Section 17 of the Divorce Act sets out the general variation provisions. Where both former spouses live in different provinces and both consent, section 17.1 enables the Court to receive submissions from the former spouses orally, by affidavit, or by any means of telecommunication and to determine the variation application. Where an application proceeds pursuant to these provisions, the out-of-province party is attorning to the jurisdiction of the court.

Sections 18 – 19 set out another option by providing for a two-stage inter-provincial procedure (sometimes referred to as the "REMO/RESO-like" provisions) which may be of particular interest to a client who is unable to retain counsel in the other party's province of residence and where neither party wishes to attorn to the other's jurisdiction. Pursuant to these provisions, one party may file a variation application in the superior court in their own province without notice to the party in the other province. The Court in the applicant's province can make a provisional variation order, which will be sent together with the evidence filed in support of the provisional variation order to the province where the other party lives. A confirmation hearing will be arranged and the Court in the respondent's province will make the final decision. The superior court rules applicable in your province or territory will provide procedural direction. It is important to remember that this procedure is only available for variation applications, not for the establishment of an initial support order.

The procedure set out at section 18-19 is not available if the respondent lives outside Canada . A Canadian resident seeking to vary a Divorce Act support order in a case where the respondent lives outside Canada would need to proceed in the same manner as if the respondent lived within the jurisdiction, subject, of course, to any particular procedural rules governing these matters in the applicant's province or territory.

ISO Act

Part of the ISO Act deals with "Claims Where No Order Exists" and a separate part deals with "Variation of a Support Order". Many of the sections in the variation part mirror sections in the part that covers cases where no order exists. However, there are no parentage provisions in the part dealing with variations, so if the client believes that the issue of parentage should be revisited after a child support order has been made, the ISO support variation application process is not the appropriate venue for this type of determination.

It is important to note that "Support order" is defined in the variation part as a support order that is

  1. made in [the home province or territory], or
  2. made in a reciprocating jurisdiction and registered in a court in [the home province or territory...]

Subsequent provisions of the legislation deal with the situation where the party residing in the home province or territory commences an application to vary a support order by using the ISO forms. Therefore, the ISO Act makes the forms support variation application process available for an application to vary a registered order or an order made in the applicant's province or territory when the other party lives outside that province or territory.

It is, of course, an option for the client seeking to vary a support order made in the client's own province to file an application with the Court in the client's own jurisdiction and serve the respondent ex juris. This type of variation application would not be pursuant to the ISO Act. 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 the ISO Act.

There are also specific provisions in ISO to deal with the situation where one party commences an application to vary a registered support order as if the order had been made in the province or territory in which it has been registered.

In most ISO laws in the common law provinces and territories, this part is entitled "Variation of Registered Orders" and is found anywhere from section 33 to section 41 of the applicable statute. These provisions set out the conditions under which the Court would have jurisdiction to vary a registered support order. In a nutshell, these conditions are as follows:

  1. both parties agree to the variation application proceeding in the province or territory in which the support order was registered (i.e., the applicant serves the out of province party with notice of the application and the out of province party "attorns" or submits to the jurisdiction of the Court by either retaining a lawyer in that province or territory or filing a document responding to the merits of the application); or
  2. both parties live in the province or territory in which the support order was registered at the time of the variation application; or
  3. the variation application was filed by the party who lives outside the province or territory and the other party lives in the province or territory in which the variation application has been filed

In addition to having to determine if any of these conditions exists, ISO laws in most of the common law provinces and territories 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.

This part of ISO legislation also provides that where the Court may vary a registered support order in accordance with these provisions, the applicable family support legislation in that province or territory applies to the determination of the variation application as if the order being varied was a support order made pursuant to that legislation.

There are some additional things to consider where the ISO forms variation application process is to be used. At a glance, it will appear that ISO forms can be used to seek to vary any support order involving a resident of the home province or territory where the other party lives outside the province in a reciprocating jurisdiction (other than orders made pursuant to the Divorce Act). ISO legislation certainly permits this, but the law of the respondent's jurisdiction may not permit this in all cases.

For example, American state law (UIFSA) contains provisions prohibiting an American state from varying an order from another jurisdiction where one of the parties or the child still lives in the jurisdiction in which the order was made. This principle is referred to as "continuing exclusive jurisdiction". In other words, the court that made the original order continues to have exclusive (sole) jurisdiction to vary the order unless neither of the parties or the child(ren) lives in that jurisdiction when the variation is sought. The only exceptions to this rule are that if both parties consent to the "transfer of jurisdiction" or, in the case of a foreign order, if the court that made the original order "will not or may not modify its order pursuant to its laws"Footnote 12

What does this mean? It means that if the client is seeking to vary a support order made in the client's province of residence pursuant to the provincial family support law of that province, and the respondent lives in the United States, the US state may refuse to process the client's ISO support variation application because in its view, the Court that made the original order is the proper court to vary that order.

However, if a variation application is filed with the Court in the home province or territory and the respondent is served in the United States, it may be necessary to be "armed" with the UIFSA provisions that will help convince the Court that it should vary the order even if the respondent does not appear because the US court will not vary the order.

Next steps: Using the ISO Forms

After considering the preliminary questions set out above and deciding that the ISO support application forms route is the best option, the first step will be to obtain the ISO forms. In most provinces and territories, the forms are available on the applicable government website at no cost. Appendix B lists where the ISO forms can be obtained in each common law province and territory. Guides are also available to help you determine which forms to use for your particular case. All ISO applications require Forms A and B, but the other forms must be assessed for their applicability.

If the respondent lives in the United States, some provinces and territories will encourage use of ISO Forms A and B only, and use of American forms instead of the other ISO forms. In some cases, applications going to the United States seem to be processed more smoothly when the American forms are used. The designated authority can help locate the American forms. The standard American forms used are called a "Petition" and "General Testimony". If the client is seeking an original child support order and parentage of the child or children has not already been determined by a court order or paternity test, use the form entitled "Affidavit in Support of Establishing Parentage" (a separate Parentage Affidavit form for each child). Note that where the client is required to complete financial information concerning income and expenses, specify on the forms that the amounts shown are in Canadian dollars. If this is not indicated, the American agency or tribunal considering the application will likely assume that the amounts are in American dollars.

If the respondent lives in a country where English is not the first or working language, contact the designated authority to see if there are any bilingual forms available for the particular language required. As the client will usually need to have all of the application documents translated into the required language of the responding jurisdiction, use of the bilingual forms will substantially reduce the cost of translation. You may want to include a brief or caselaw, but remember that it will need to be translated at the applicant's expense. Depending on the country, it may or may not be taken into account.

Appendix C contains a list of frequently asked questions and answers about the ISO forms.

What if the client is a respondent to an inter-jurisdictional application?

The client might be served with an application to establish or vary a support obligation that has been filed with a court in another jurisdiction. In these cases, consider the following:

The court in the other province, territory, or country, might have jurisdiction under the applicable law to make an order against the client even though the client does not reside in the jurisdiction where the proceeding is taking place and does not "attorn" to the jurisdiction of that court. Consider what law is applicable and whether it would be appropriate for the respondent to participate in the proceeding or notify the court in the other jurisdiction that the respondent is specifically not attorning and wishes the application to proceed through the appropriate inter-jurisdictional process. Determine whether the application is pursuant to the Divorce Act, provincial or territorial legislation, or before a foreign court.

For example, if the client is served with an application from another province to vary the support provisions of a Divorce Act order and seeks advice on how to respond, it is important not to ignore the application since the Court could proceed in the client's absence and if that happens, the client would have to seek a remedy in the province or territory in which the variation order was made. If the client does not want to participate in the proceeding in the other province, it may be prudent to write to the Court and respectfully request that the Court proceed to make a provisional variation order pursuant to s. 18 so that the client will have the opportunity to respond to the application at a confirmation hearing in the home province.

If the client has been served with a notice of hearing in the client's own province or territory relating to a support or support variation application transmitted from a reciprocating jurisdiction under the ISO Act, the proceeding will be governed by the rules of court in the province and under the ISO Act where the hearing is taking place. The client will likely have been served with a "response" form that should be completed and filed as directed. The ISO Act in the home province or territory will identify the law that will apply to determine the issues of entitlement and quantum in such an application. The ISO Act will also indicate that an order can be retroactive, and that it can be made in the respondent's absence should the respondent fail to participate or provide the required information.

In any type of application to vary a support obligation pursuant to which a client is the support recipient, if the client is or has been in receipt of social assistance during the time when the support obligation was or is in effect, the relevant social assistance agency will likely have taken an assignment of the support and/or arrears and will likely be entitled to participate in any variation proceeding. Remember, that the client may not be entitled to consent to any change in the support obligation or arrears.

A Glimpse into the Future

Canada has been an active participant in a recent project of The Hague Conference on Private International Law that led to the development of a new international convention on maintenance obligations. The Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations were concluded November 23, 2007. If implemented by provinces and territories, the new convention could open the door for another means of support establishment, variation and recognition and enforcement arrangements between Canada and many other countries. To obtain information about this project, visit this website.

Technology currently offers some solutions to the challenges of inter-jurisdictional cases, but these options appear to be under-utilized at present, quite likely because of cost and difficulties accessing equipment and facilities. As suitable avenues for use of technology become available and more cost-effective, we can anticipate more options for the future in this area.

Conclusion

The past few years have seen many changes in the laws and procedures that govern inter-jurisdictional support cases. As mobility across provincial/territorial and national boundaries increases, so, too, will the number of Canadians needing to make use of these laws and procedures. Canadian officials at the provincial, territorial and federal level have worked toward harmonizing and simplifying the procedures and continue to work toward improvements to provide easier access to justice in this field. Although many individuals choose to represent themselves in these types of cases, lawyers play an important role in guiding their clients through the various options.