Enforcement between provinces, territories and countries

Thank goodness there are laws for spousal support and child support. I say this with some caution as the laws are not consistent everywhere. Please click here to learn more or read an excerpt below for problems if one of the parents lives in a non-reciprocating country. I believe a non-reciprocating country is not a member of the Hague Conventions (please note I’m not a lawyer so I could be wrong about all of my comments noted on this blog). Strongly recommend reading everything regarding this post. I don`t have a court order for my husband to pay spousal or child support because he`s avoiding being served but perhaps here are the contact numbers for the Provincial and Territorial Maintenance Enforcement Programs who may be able to help. I think I have contacted them in the past without success or guidance so good luck. Right now, as far as I know, my husband can come and go to Canada as he pleases. We did not qualify for Social Assistance due to the fact we had a house and business that the courts would not allow me to sell until my husband had been served so now everything is gone because the banks foreclosed on the family home and the government seized the business and we are on Social Assistance.  Until everything was seized from us, I struggled to run our family business and keep a roof and food on the table for the children and I.

If the respondent lives in a non-reciprocating country, the ISO forms procedure is not an option, nor will the designated authority be able to provide any direct assistance. Depending on the particular circumstances of the case, the client can still apply to the Court (pursuant to provincial or territorial legislation or the Divorce Act, as appropriate) and serve the respondent ex juris. If an order is made, it may still be possible to have that order recognized and enforced in the non-reciprocating country, but in most cases, this would have to be done by retaining a lawyer in that country. It may also be an option to retain a lawyer in that country to apply for a support order in that country. In such a situation, contact the designated authority in the home province or territory to see if it has any information about the particular non-reciprocating country that might be of assistance.

The order may or may not be enforceable outside Canada. Whether it is 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”[11] jurisdiction. However, refer back to Question 4 (Where does the respondent live?). Note that none of the questions in the American law deal with whether the order was made in the context of a divorce proceeding. Therefore, the same issues will apply to aDivorce Act support order as to an order pursuant to provincial or territorial family support legislation in terms of whether the order will be recognized (and therefore, enforceable) in the United States if the respondent is a resident of the American state being asked to enforce the order.

This does not mean that the Court ought not to be asked for child support as part of the divorce proceeding. It just means that if the order is sent to an American state for registration and enforcement, the respondent might have grounds to oppose the registration, and the client might end up needing to file the ISO/UIFSA forms and to ask the American state to establish a child support order even if the Court in your client’s province or territory has already made an order.

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.

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