1. LEGISLATIVE FRAMEWORK. A. Enactment

Transcription

1 The Interjurisdictional Support Orders Act, replaced the Reciprocal Enforcement of Support Orders Act 2 and was enacted to facilitate enforcement of support rights where the parties live in different provinces or countries. The purpose of the Act was to eliminate the complexity and delay associated with the procedure for obtaining enforceable cross-jurisdictional child and spousal support orders under the now repealed RESOA. Under the old scheme involving the reciprocal enforcement of maintenance orders, a party was required to obtain a provisional order in his or her jurisdiction which would not be effective until it was confirmed at a second hearing in the reciprocating in which the other party resided. The ISOA now provides for a paper application procedure to facilitate enforcement of cross-jurisdictional child and spousal support orders and variation of such orders. An order made in one jurisdiction is given full faith and credit in the reciprocating jurisdiction and is enforceable immediately upon registration there without the necessity of a confirmation hearing. Recent case law demonstrates that while it has eliminated much complexity and delay in the procedures, the ISOA has not fundamentally changed the machinery of the system as it operates between reciprocating jurisdictions. As before, the exchange of relevant documents takes place between government officials, or by a designated authority as defined by section 1 of the Act. 1. LEGISLATIVE FRAMEWORK A. Enactment The ISOA is based on model uniform legislation which was developed by a standing committee of officials from the federal, provincial, and territorial governments for the purpose facilitating the interjurisdictional recognition, variation, and enforcement of support orders made in family proceedings. 3 1 S.O. 2002, c.13 (the ISOA ). 2 R.S.O c R.7 (the RESOA ). 3 Mathers v. Bruce (2005), 2005 CarswellBC 1911 (B.C.C.A.), at para. 4 [Mathers v. Bruce]. 1

2 The enactment of the ISOA was meant to deal with enforcement problems experienced under the RESO procedure and provide a fair way to adjudicate interprovincial support cases. The Act was not intended to change the applicable law, but to facilitate enforcement of support obligations between reciprocating states. As mentioned above, an important change enacted by the ISOA eliminates the need for two hearings in situations where the reciprocating jurisdictions have both adopted the ISO scheme. The ISOA also attempts to simplify the procedures and make them more readily available to lay persons. To that end, standard forms have been prepared for use in the Canadian jurisdictions. 4 (FRO STUFF) These forms are available on the Internet. Ontario forms can be found on the Family Responsibility Office website at and are also appended to this paper for ease of reference. All Canadian provinces and territories, the United States and several other countries are reciprocating jurisdictions. B. Legislative Overview Ontario s ISOA is organized into 5 Parts. 5 Part I deals with definitions and the designation of courts for purposes of the Act. Part II deals with initial claims for support and claimants in Ontario where the respondent, the person against whom support is sought, is in a reciprocating jurisdiction. Section 5 of the Act found in this Part states that the claimant may start a proceeding in Ontario that could result in a support order being made in the reciprocating jurisdiction. A claimant must complete a support application containing information specified in subsections 5(2)(3) of the ISOA. Similarly, an applicant seeking a variation under Part IV outlined below must complete a support variation application containing information specified in subsections 27(2)(3). In each case, the claimant or application must submit the completed support application to the designated authority in Ontario. The applicant is not required to provide notice to the respondent that a proceeding has been started under both Parts. Subsections 6(2) and 28(2) provide that the designated authority must review the application to ensure it is complete and must send a copy of the completed application to the appropriate authority in the 4 Ibid., at 6. 5 For further discussion, see J. Miyauchi & A. Wilton, Interjurisdictional Support Orders Act and Reciprocal Enforcement of Maintenance Orders Act in Enforcement of Family Law Orders and Agreements (Westlaw Ecarswell, Thomson Canada Ltd), 1:15. 2

3 reciprocating jurisdiction in which the claimant or application believes the respondent to ordinarily reside. If the claimant reasonably believes that the respondent lives in a reciprocating jurisdiction where a provisional order is required, then the Ontario court may make a provisional order pursuant to section 7. Sections 9-16 provide for situations where the claimant resides outside of Ontario and the respondent ordinarily resides in Ontario. Section 12 sets out the procedure where a parentage is an issue and has not been previously determined by an Ontario court. Choice of law rules with respect to entitlement to support and determination of the amount of the support are found under section 13. At the hearing of a support application, the Ontario Court must apply the law as specified in section 13. In determining a child s entitlement for support, the Ontario court first applies the law of the jurisdiction in which the child resides, but if the child is not entitled to support under that law, the Ontario court will apply Ontario law. In determining the amount of support for a child or claimant, the Ontario court applies Ontario law. In determining spousal support, the Ontario court first applies Ontario law, but if the claimant is not entitled to support under Ontario law, the Ontario court applies the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence. Section 14 states that the Ontario court may make a support order, temporary support order and adjourn the matter, adjourn the matter without making a temporary order, or may refuse to make a support order. If at the conclusion of the hearing of a support application the Ontario court makes an order, the designated authority shall promptly send a certified copy of it, with reasons, if any, to the appropriate authority in the reciprocating jurisdiction. All necessary documents must pass through both the designated authority in Ontario and the appropriate authority in the reciprocating jurisdiction. The ISOA makes no provision for the parties to take any steps themselves except within the jurisdiction in which they ordinarily reside. Part III provides for the registration and enforcement of orders outside Ontario. This Part applies to support orders, temporary support orders and orders varying support orders made in 3

4 reciprocating jurisdictions in and outside Canada but not to provisional orders or provisional variation orders. To enforce an order under this Part, section 18 states that the claimant must send a certified copy of it to the designated authority, together with information about the location and circumstances of any party who is believed to ordinarily reside in Ontario. Section 19 states that once an order from a reciprocating jurisdiction has been registered in Ontario, the order has the same effect as a support order made by an Ontario court. Section 20 of Part III provides the court with the power to confirm or set aside the registration of the Order. On a motion, the Ontario court may set aside the registration if it is determined that: i) a party to the order did not have proper notice or a reasonable opportunity to be heard; ii) the order is contrary to public policy in Ontario; or iii) the court that made the order did not have jurisdiction to make it. If the Ontario court sets aside the registration, it is to provide written reasons for its decision and send them to the designated authority pursuant to subsection 20(5) of the Act. Part IV deal with variations of support orders. The Part applies to support orders made in Ontario or made in a reciprocating jurisdiction and registered in Ontario, but not to provisional orders or provisional variation orders. Section 27 states that an applicant who lives in Ontario and believes the respondent lives in a reciprocating jurisdiction may start a proceeding in Ontario that could result in a variation proceeding being made in the reciprocating jurisdiction. The applicant completes a support variation application form and submits the application to the designated authority in Ontario. The court is not involved in obtaining a support order or a variation order, unless the jurisdiction in which the respondent lives continues to require a provisional order. Where the applicant is outside Ontario, and the designated authority receives a support variation application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent lives in Ontario, section 32 states that it shall verify the information and send the support variation application to the Ontario court. Choice of law rules are set out in section 35. In determining quantum of support, the Ontario court applies the law in the jurisdiction where the person liable to pay support ordinarily resides. Section 39 permits the Ontario court to vary registered orders. 4

5 Part V deals with Appeal and Miscellaneous matters. Transitional sections are set out under this Part. Where matters have been started under the former act, the process which should be followed is set out in section CASE LAW A. Has the ISOA improved the process of enforcing interjurisdictional support orders? B. Does the ISOA provide a complete code for interprovincial support proceedings? Bouchard v. Oullett. Humphries Mathers in Bruce he should have applied to the registered court in England for a provisional variation order, which could have been deal with in British Columbia pursuant to the ISOA. C. Choice of Law Rules/Conflict of Law Principles In Kasprzyk v. Burks 6, the applicant brought an application for child support in accordance with the Child Support Guidelines pursuant to the Family Law Act 7. The applicant res Justice Stansfield of the British Columbia Provincial Court was critical of the current legislative framework in H.B.H. v. K.L.V.E. 8 His Honour was asked to confirm a child support order made provisionally in the mother s province of Ontario CarswellOnt 872 (O.S.J.). 7 R.S.O. 1990, c.f.3. 8 [2004] B.C.J. No.1076 (B.C.P.C.). 5

6 D. Jurisdictional Issues E. Substantive and Procedureal Issues Under the ISOA Evidence Issues ISOA states that the Court is to consider the evidence provided by the designated authority. In Bumpus v. Benoit 9, the applicant mother s support application under the ISOA was refused because she provided limited evidence for the local hearing. She resided in Oshawa, Ontario, while the respondent lived in York, Prince Edward Island. Justice Jenkins held that the mother was not entitled to add on support because she failed to provide proper evidence about her financial circumstances, including her partner s income information, and the father could not afford to contribute to the activities she had decided should be undertaken. The father was entitled to undue hardship relief as a result of his modest income, high access costs, and second family expenses. F. A Comparison of the procedures found under the ISOA, RESOA and Divorce Act 10 The ISOA applies only to provincial legislation, and not to the Divorce Act. In O.(R.D.) v. O.(C.J.) 11, Martinson J. pointed out how poorly the provisional variation procedure under the Divorce Act compares with the procedure under the ISOA. 3. CONCLUSION CarswellPEI 73 (P.E.I.T.D.) [In Chambers]. 10 R.S.C. 1985, c.3 (2 nd Supp.) [Divorce Act] CarswellBC 1221 (B.C.S.C.). 6