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ARTICLES
Georgina Carson, Partner

Money and Family Law - Vol. 25, No. 9 - September 2010

Money and Family Law - Vol. 25, No. 8 - August 2010

SELF-REPRESENTED LITIGANTS IN THE FAMILY COURTS: IS SELF-REPRESENTATION AN UNFAIR TACTIC?

Enforcing Cross-Jurisdictional Support Orders under the Interjurisdictional Support Orders Act, 2002

SPOUSAL ENTITLEMENT TO EMPLOYEE RELATED BENEFITS & RRSPs

 

Enforcing Cross-Jurisdictional Support Orders under the Interjurisdictional Support Orders Act, 2002

By Georgina Carson and Michael Stangarone
MacDonald & Partners LLP

Ontario child or spousal support orders can be enforced utilizing the procedures set out in the Interjurisdictional Support Orders Act, 20021 (“ISOA”). Likewise, orders from reciprocating jurisdictions can be enforced in Ontario under the ISOA. The ISOA applies only to orders made under the Ontario Family Law Act2 , and not to support orders made under the Divorce Act.3   

The ISOA replaced the Reciprocal Enforcement of Support Orders Act4 and was enacted to address the enforcement problems associated under the former Act and to facilitate enforcement of support rights where the parties live in different provinces or countries.  The new Act proposed to eliminate the complexity and delay associated with enforcing cross-jurisdictional child and spousal support orders.  Under the previous legislation, 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 jurisdiction in which the other party resided.  It was not uncommon for years to pass before the case came before the confirming court.  The enforcement mechanisms under RESOA proved cumbersome, and resulted in Ontario and other provinces endorsing the mechanisms set out in the ISOA.

The ISOA now provides for an application procedure to facilitate enforcement of cross-jurisdictional child and spousal support orders and variation of those orders.  An order made in one jurisdiction is given full faith and credit in the reciprocating jurisdiction and is enforceable immediately upon its registration without the necessity of a confirmation hearing. The Act permits both payor and payee to apply in their own jurisdiction for enforcement or variation in another jurisdiction. 

It remains unclear whether the ISOA has significantly reduced procedural complexity associated with enforcing interjurisdictional support orders.  Recent case law suggests that while the ISOA has eliminated some procedural delay, the ISOA has not fundamentally changed the inherent difficulties in enforcing or varying orders between reciprocating jurisdictions.5  

1.  LEGISLATIVE FRAMEWORK

A.  Enactment

All Canadian provinces and territories have passed or soon will pass the ISOA.6   In Ontario, the ISOA came into effect on March 31, 2003.  The Act is based on model uniform legislation which was developed by a standing committee of the federal, provincial, and territorial governments for the purpose of facilitating the interjurisdictional recognition, variation, and enforcement of support orders made in family proceedings.7   It bears repeating that the ISOA applies only to provincial legislation8 , and not to support orders made under the Divorce Act.9   

The ISOA was intended to address enforcement problems experienced under the RESO procedure and to ensure the fair determination of interprovincial support cases.  The ISOA was not intended to change the applicable law, but rather to facilitate enforcement of support obligations between reciprocating jurisdictions. 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 increase accessibility for lay persons.  To that end, standard forms have been prepared for use in Canadian jurisdictions.10    In Ontario, the ISOA is administered by the Interjurisdictional Support Orders Unit11 of the Family Responsibility Office.12   Forms, explanatory guides, and procedural advice can be found on the Ontario Family Responsibility Office website under “Where one person lives outside Ontario” at www.thefro.ca.  Example forms are appended to this paper.13

All Canadian provinces and territories, all U.S. States and several other countries are reciprocating jurisdictions.  In Ontario, a reciprocating jurisdiction is a jurisdiction (province, territory, state, or country) that has entered into a formal arrangement with Ontario to reciprocally enforce the other jurisdiction’s support orders. Reciprocating jurisdictions must have support laws that are similar to those in Ontario.  A complete list of Ontario’s reciprocating jurisdictions can be found in the “reciprocating jurisdictions” regulation under the Ontario ISOA.14

B. Legislative Overview

           
Ontario’s ISOA is organized into 5 Parts.15  

Part I – Exchange of Documents between Designated Authorities

Part I deals with definitions and the designation of courts for purposes of the Act.  The exchange of relevant documents takes place between designated government officials. Under the ISOA, that official is the “designated authority” as defined by section 1 of the Act.  In Ontario, the powers and duties of the designated authority are exercised and performed by the ISO Unit of FRO, through the Ministry of the Attorney General, and all documents flow through the ISO Unit. 

Part II –  Support Claims by Ontario Residents against Persons Outside Ontario

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 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 must complete a “support variation application” containing information specified in subsections 27(2)(3). In each case, the claimant must submit the completed support application to the designated authority in Ontario.16   The claimant is not required to provide notice to the respondent that a proceeding has been started under either Part.  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 reciprocating jurisdiction” in which the claimant believes the respondent ordinarily resides.  

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 7.17   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 parentage is an issue and has not been previously determined by an Ontario court. 

Relevant Law- Entitlement and Quantum

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 then apply Ontario law.  In determining the quantum 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:

  1. Make a support order,
  2. Make a temporary support order and adjourn the matter;
  3. Adjourn the matter without making a temporary order; or
  4. 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 steps themselves except in their own jurisdiction.

Part III – Enforcement of Orders Made Outside Ontario

Part III provides for the registration and enforcement of orders made outside Ontario.  This Part applies to support orders, temporary support orders and orders varying support orders made in 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:

  1. a party to the order did not have proper notice or a reasonable opportunity to be heard;
  2. the order is contrary to public policy in Ontario; or
  3. 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 – Variations of Support Orders

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 order 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 Ontario court will not make the variation order, unless the jurisdiction in which the respondent lives continues to require a provisional order.  Where the applicant is outside Ontario, and the Ontario 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 relating to variation applications 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.  

Part V – Appeals and Transitions from RESOA

Part V deals with Appeals and transitions for matters started under the former enforcement legislation, the Reciprocal Enforcement of Support Orders Act (“RESOA”) The process is set out in section 54.      

2.  CASE LAW:  THE INTERJURISDICTIONAL CONTEXT

A.  Mandatory or Permissive:  Does the ISOA provide a complete code for interprovincial support proceedings?

There have been conflicting cases about whether parties have a choice to follow the ISOA procedure or whether they may proceed otherwise.

The Permissive View

In Humphries v. Rokoss18 , for example, Justice Kukurin of the Ontario Court of Justice held that the Ontario applicant could elect to rely on Ontario’s Family Law Act and Family Law Rules19 to proceed to obtain a final order. Justice Kukurin did not interpret the wording in Part II of the ISOA as precluding the applicant from declining to follow ISOA procedures.  Subsection 5(1) of the ISOA was found to be permissive as opposed to presumptive and if the procedure was meant to be mandatory, according to Justice Kukurin, it would be reasonable to expect language of a more imperative nature such as “must” or “shall”, rather than “may”.  Justice Kukurin concluded that the applicant had properly followed Ontario court rules and nothing therefore prohibited her from obtaining a final order in Ontario.  His Honour did not, however, consider the possibility that the order might not be enforceable in British Columbia because it was an in personam order.

In Bouchard v. Oullett20 , Justice Little of the Ontario Court of Justice adopted Justice Kukurin’s reasons in Humphries and held that a claimant seeking spousal and child support from the respondent father, who resided in British Columbia, was not obliged to use the ISOA’s procedure but could instead seek a final order in Ontario, where she resided.  The main issue was whether the mother had a choice to proceed under the ISOA or whether she could obtain a final order under Ontario’s Family Law Act.  Although her Honour initially was of the view that the mother could not obtain a final order in Ontario, after considering the matter, she concluded otherwise, citing the permissive language of section 5 of the ISOA. In his annotation to the case, the late Professor McLeod states that, assuming jurisdiction to make the order, Justice Little’s decision results in a final support order that is not enforceable outside of Ontario.21   If interprovincial support proceedings are subject to complying with local provincial rules of practice, it was Professor McLeod’s view that the mother could not obtain a final order in Ontario against the father.  Professor McLeod further states that the mother will have significant problems enforcing the support order obtained from Justice Little based on out-of-province service. 

At common law, courts would not enforce a foreign in personam order unless:
1. It was final and conclusive, that is, beyond adjustment, variation or appeal;
2. The judgment plainly sets out the sum in the currency it is to be paid;
3. The respondent resided in the province at the time proceedings
     commenced or he or she attorned to the jurisdiction of the local court. 

Support orders are not final and conclusive; rather, they are subject to variation in the event of a material change with the result being, according to Professor McLeod, that they were not enforceable extra-territorially at common law. 

The Mandatory View

In Mathers v. Bruce22 , the British Columbia Court of Appeal took an alternate approach and held that the applicant must proceed through the ISOA procedure.  The father resided in England and applied in British Columbia to vary a support order relating to a child who resided with the mother in British Columbia.  The Court of Appeal held that the father was not permitted to bring his application in this fashion and that he must follow the mechanisms provided under the ISOA.  The order in issue had been filed in England and could therefore be varied and enforced as if it were an English order under the ISOA.  Justice Smith held that the father could not avoid the cumbersome process of the ISOA by bringing a direct application in British Columbia to vary the child support order granted by the British Columbia Supreme Court without commencing proceedings in England, If the father wished to pursue a variation, he must apply for a provisional variation order in England which would then be reviewed in British Columbia under the ISOA.

In Green v. Longe23 , the Ontario-resident father applied, outside of the ISOA scope, to vary a child support order against the Manitoba-resident mother, as if the mother resided in Ontario.  Justice Little adjourned the change motion to allow the father to re-consider his application as the order he was seeking would not be recognized in Manitoba. Justice Little held that his affidavit did not provide sufficient evidence for a court to conclude that the mother had a real and substantial connection to Ontario, and that he could not meet the three tests to obtain an enforceable in personam order24 .  Instead, the father could bring his motion to change in Manitoba or bring an application to vary pursuant to the ISOA.  In an effort to avoid delay, Justice Little suggested that the father allow the mother to participate by teleconference, on a without prejudice basis, without attorning to the jurisdiction, to come to resolution or narrow the issues.

Where the applicant chooses to appear in person at the hearing, it may be argued that she or he attorns to the jurisdiction and the hearing then becomes outside the scope of the ISOA. In Loy v. David25 , the mother in Alberta started a child support application under the ISOA against the father in Saskatchewan.  She chose to appear before the court in Saskatchewan and as a result, voluntarily attorned to the jurisdiction of the Saskatchewan Court. Justice Allbright confirmed that the application was no longer under the ISOA and was now under the Saskatchewan Family Maintenance Act. While the matter originated under the ISOA, the applicant had voluntarily attorned to the jurisdiction of the Saskatchewan court, and the court therefore disposed of the matter as  a regular contested variation application with the assistance of documentary and viva voce evidence.

B.  Choice of Law Rules - Conflict of Law Principles

Declining Jurisdiction

In Kasprzyk v. Burks26 , the applicant sought Guidelines child support under the Family Law Act27 .  The respondent had relocated to Ontario, while the applicant continued to reside in Michigan.  Justice Leitch held that Michigan was the appropriate jurisdiction in which the matter should be heard.  While Ontario courts arguably have jurisdiction to decide support for children resident outside Ontario if the payor resides here, Justice Leitch declined jurisdiction based on forum non conveniens.  He found a lack of connection between Ontario and the subject matter of the dispute.  Justice Leitch held that the Michigan court should deal with the matter first under the ISOA procedure or by way of a provisional order. 

Accepting Jurisdiction

In G.(A.) v. S(L.)28 , the mother resided in Kazakhstan with her child and applied for support in Alberta against a father who was technically resident in Alberta, but worked outside the province. She had a foreign support order from Kazakhstan which was unenforceable at common law, and Kazakhstan is not a reciprocating jurisdiction under the ISOA.  Justice Sullivan held that the Alberta court had jurisdiction because the father attorned to the jurisdiction by submitting responding materials, was ordinarily resident at the time, and did not meet the onus of proving that another jurisdiction was the more convenient forum.29   Justice Sullivan applied the law of the jurisdiction in which the child ordinarily resided in determining the entitlement of support as required under the ISOA and held that the Child Support Guidelines did not apply. 

Entitlement and Quantum

In S. (C.J.) v. S. (R.R.S.)30 , the Court was asked to confirm a provisional English order which varied a British Columbia order by canceling arrears.  The parties and their child had lived in British Columbia. Orders were made pursuant to British Columbia’s Family Relations Act. The father lost his job in 1997 and moved to England soon after. The English court made provisional orders varying child support from $150 per month to $140.63 per month. The spousal support obligation was changed from $200 to $187.53 per month. The English court found that the father had sufficient income to justify those amounts. However, the court cancelled significant arrears. The British Columbian court considered whether English or B.C. law should apply. It was held that under English law, arrears are generally not enforced if more than a year old, unless there are exceptional circumstances. Under B.C law, arrears are seldom cancelled. The court in British Columbia held that an order canceling or reducing arrears are matters of entitlement as opposed to quantum and under the ISOA that issue must be determined by the law of British Columbia..31   Under British Columbian law, delay in enforcement is generally not grounds to cancel or reduce arrears. Section 96 of the Family Relations Act allows the court to reduce or cancel arrears only if it would otherwise be grossly unfair. In this case, the father had made little effort to comply with the orders, even though he had the ability to pay support. He had not explained his delay and there were no special circumstances that the court considered relevant. The court declined to confirm the provisional order canceling arrears. The provisional order with respect to ongoing support was confirmed as it only marginally varied the original order.

In G.B. v. C.S.32 , Justice Katarynych of the Ontario Court of Justice was asked to confirm a provisional support order from the State of Georgia. Her Honour decided that the substantive issue of the dependent’s entitlement to support had to be decided by the law of Georgia. However, the procedural detail of the support issue and the issue of retroactive support were to be governed by the law of Ontario, including case law under the Ontario Child Support Guidelines.

C.  Further Inter-Jurisdictional Issues Relating to Support Enforcement Under the ISOA

i)  Setting Aside an Interjurisdictional Support Order

The ISOA provides that the registration of a support order can be set aside if, among other things, the order is contrary to public policy.  This issue was dealt with in K.(E.) v. K.(D.)33 , where the father applied to have an order set aside on the basis that it was made contrary to public policy.  The father resided in British Columbia and the mother resided in New Jersey. The New Jersey court ordered the father to pay child support to the mother.  The mother had agreed to withdraw a domestic violence complaint in exchange for the father’s signature on a property settlement agreement, which included a provision for child support.  Justice Williams held that the agreement was contrary to public policy and unenforceable.  The registration of the support order was set aside as “contracts to stifle prosecution were illegal and void and as such were deemed to be contrary to public policy in British Columbia”. On appeal, however, the British Columbia Court of Appeal held that the chambers judge erred in disregarding the important principle that non-custodial parents must provide appropriate financial support for their children, in favour of public policy principles not necessarily of general application.  The Court held that the child support provision was severable and paramount.

ii)  Evidentiary Issues

To enforce support orders under the ISOA, it is imperative that proper documentation and information is provided concerning the circumstances of the parties.  The current regime in place permits the Court to return the matter for additional and updated evidence, as required.  Subsection 11(1) states that the Ontario court shall consider the evidence provided to the court, and the documents sent from the reciprocating jurisdiction.  Subsection 11(2) states that the Ontario court may adjourn the matter to request further information. If the materials are improperly before the court or are insufficient for the confirming judge to make a decision, the matter will be adjourned. Requests for additional documentation between jurisdictions can significantly protract proceedings under the ISOA. 

Insufficient Evidence - Uncertainty

In I. (M.) v. T. (A.)34 , the court criticized the ISOA as imposing on the presiding judge an obligation to be counsel for the foreign jurisdiction.  The judge “is to act as counsel in that the court must determine what is and what is not the evidence and make that determination from all papers contained in the court file.”  The ISOA provides that the court must consider evidence provided to the court and received from the reciprocating jurisdiction, and request additional information as necessary.  What weight is to be given to this evidence is based on the balance of probabilities.  In this case, the documents/evidence provided included such things as:

  1. Child Support Enforcement Transmittal #1 Initial Request;
  2. Uniform Support Petition;
  3. Affidavit in Support of Establishing Paternity;
  4. General Testimony;
  5. Request for Support Services; and
  6. Other documentation/evidence

After reviewing the materials, Justice Davis was uncertain what further documentation may have supported the case, if any.  Justice Davis would have returned the matter to Japan; however, Japan is not a reciprocating jurisdiction.

Insufficient Evidence – Dismissal

In Bumpus v. Benoit35 , the applicant mother’s support application under the ISOA was refused because she provided limited evidence for the local hearing.  She resided in Ontario, while the respondent lived in Prince Edward Island.  Justice Jenkins held that the mother was not entitled to contribution for a child’s special and extraordinary expenses 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. 

Conflicting Evidence - Counsel for Child or Reciprocating Jurisdiction

In G.(H.) v. C. (R.P.J.)36 , Justice Alexander adjourned the ISOA hearing to ensure the child had legal representation. The New Brunswick provisional child support order was for a16 year-old, in the custody of her maternal grandmother. The respondent father opposed the confirmation of the provisional order, taking issue with its retroactivity and quantum.  The judge held that the court could not act as agent for the reciprocating state and impartial arbiter in assessing the evidence before the court.  The Court stated that the needs of children know no geographic limitations.  The court held that the reciprocating jurisdiction and/or the child required independent counsel at the hearing to address the respondent’s conflicting interpretations of evidence and resistance to the provisional order.

D.  Comparing enforcement procedures under the Divorce Act and ISOA

Divorce Act Enforcement

In O.(R.D.) v. O.(C.J.)37 , Justice Martinson noted that the provisional variation procedure under sections 17.1 to 19 of the Divorce Act was bifurcated and inferior to the ISOA procedure. 

In Lynch v. Lundrigan38 Justice Handrigan noted the efficiencies of the ISOA provisional variation procedure and described the Divorce Act provisional/confirmation hearing process as “awkward and ungainly” but “structured to ensure that each party has the opportunity to be fully heard before a determination is made”.

Justice Martinson states that the case of O.(R.D.) v. O.(C.J.) demonstrates the difficulties of support issues under the Divorce Act where the parents live in different provinces. In this case, the father had asked for a provisional variation in October 2000. Sections 18 and 19 of the Divorce Act provide that the Ontario court’s provisional variation Order does not have legal effect unless confirmed by a British Columbia Court.  Over two years passed without a final decision in the matter.  Four judges in two jurisdictions were involved in dealing with the application. Having more than one judge involved in the decision-making process added to the delay and led to inconsistent approaches.  Justice Martinson stated that the enactment of the ISOA resulted from a recognition that the existing process was time consuming, administratively complex and failing to meet the needs of an increasingly mobile population.  Under the ISOA, Justice Martinson confirms that only one hearing is required. The person seeking to obtain or vary a support order completes a comprehensive package of forms. This sworn package is sent from the officials in one jurisdiction to the counterpart agency in the corresponding jurisdiction where the responding party lives, thus eliminating the need for full court hearings in both jurisdictions as provided for under the Divorce Act. The Court in the respondent’s jurisdiction considers the application and receives evidence from the respondent before making a support order or support variation order. Justice Martinson considers the process of document exchange as “very positive steps” and looks forward to seeing similar changes made to the Divorce Act. 

The operation of sections 18 and 19 of the Divorce Act may result in unfair circumstances where a terminating support order has been made at the provisional hearing.  In Pollesel v. Smith39 , for example, Justice Neilson provisionally ordered that the father’s obligation to pay child support had ended, and stated that additional information from the mother as to the children’s current circumstances at the confirmation hearing may lead to a variation of the provisional order. Despite the termination order, the father was required to continue to pay child support until the provisional order was confirmed or varied at the confirmation hearing which may be years after the provisional order is made.

            A court can make a provisional order under sections 18 and 19 of the Divorce Act only if:

  1. the respondent resides in a different province;
  2. the respondent does not accept the jurisdiction of the court where the applicant resides;
  3. both parties do not consent to proceed under section 17.1 of the Act; and
  4. the presiding judge is satisfied that the matter can be adequately determined through the provisional/confirmation procedure.

 

Applicant’s Submission of New Evidence at Confirmation Hearing

Albinet v. Albinet40 further underscores the provisional variation problems under sections 17.1 to 19 of the Divorce Act.  This case dealt with an appeal from a confirmation of a provisional order pursuant to Divorce Act, and raised the issue of whether the applicant who obtained the provisional order has a right to appear at the confirmation hearing.  The husband sought a variation of support in British Columbia.  As required by the Act, documents and evidence were forwarded to Manitoba, where the wife ordinarily resided. Counsel on behalf of the husband prepared additional affidavit evidence, served it on the wife and attended at the confirmation hearing to submit the new evidence and to make submissions. The motions court judge held that the phrase ‘in the absence of the applicant’ in section 19(2) of Divorce Act was a mandatory exclusion and refused the applicant standing at the hearing. However, the appeal court held that the motions judge had the discretion to hear the matter in the presence of the husband and that the husband’s counsel should have had the opportunity to make representations to the court.

The court held that the intention of Parliament was not to prevent an applicant from appearing on a confirmation hearing, but to provide that there is no requirement for the applicant to be served with notice of the hearing and to authorize the Court to hear the application in the applicant’s absence if he or she is not present or chooses not to appear.  While the respondent had no opportunity to appear when the provisional order was made, the confirmation order would be binding.  Pursuant to section 18(2), the provisional order has no legal effect until it is confirmed.  The Court highlighted that the provisional hearing and the confirmation hearing are fundamentally different. Rights are not affected by the provisional order, but they are by the confirmation order.  Therefore, the principles of natural justice, while always important, are especially important at the confirmation hearing, and the applicant should be allowed standing unless the language of the statute explicitly prohibits it.  An obvious advantage of hearing the applicant on a confirmation hearing, according to the court, is that it might eliminate the necessity of referring the matter back to the court that made the provisional order for further evidence. 

In Rush v. Diamond41 , the Court also highlights the shortcomings of the provisional/confirmation hearing process. In particular, the court states that evidence presented at the confirmation hearing cannot be tested by cross-examination because the party who obtained the provisional order is absent. If the evidence presented at the confirmation hearing would result in findings substantially different from those found at the provisional hearing, the court will most likely return the matter requesting further information.  To be effective and fair, the process should allow the person who obtained the provisional order the opportunity to answer the evidence.  In this case, the court suggested that a copy of the evidentiary transcript at the confirmation hearing and the revised provisional order be available for review by the applicant and by the originating court being asked to confirm the revised provisional order.

E.  Has the ISOA improved the process of enforcing  interjurisdictional support orders?

While eliminating the need for provisional and confirmation hearings in most cases, the procedure under the ISOA still proves to be cumbersome and protracted when matters are returned to originating jurisdictions for further evidence.  Recent case law suggests that while the ISOA procedure has reduced some delay and simplified some procedures, the enforcement mechanism and its inherent problems remain unchanged.  Judicial comment is mixed on whether the ISOA has improved the interjurisdictional enforcement of support orders.  Various judges have suggested the use of video technology to improve the current procedures and transmission of evidence to alternate jurisdictions.

In H.B.H. v. K.L.V.E.42 Justice Stansfield states that the legislation remains inadequate. His Honour was asked to confirm a child support order made provisionally in the mother’s province of Ontario.  The Ontario court provisionally determined that the father’s obligations to pay child support ended when the children turned 19 years old.   In his reasons, his Honour hoped that the legislatures of Canada will abandon the “existing antediluvian processes for interprovincial family proceedings – processes which are egregiously inefficient, disproportionately expensive and, most importantly, serve the interests of children poorly”. 

Justice Stansfield favours “legislation requiring separated parents living in different provinces to appear before a single judge in a single hearing using the video technology already in daily use for other matters.”  Justice Stansfield made the following comments regarding the current enforcement procedure:

…we are left with absurd hearings which would have been resolved quickly, simply and inexpensively if either the judge in Ontario or I could have heard from both parties at the same time, but instead take a year or two to conclude in separate proceedings in two provinces in which neither judge is afforded clarity or certainty that can be achieved through dealing directly with both parties.  This application comes before me with a pile of documents from Ontario approximately six centimeters thick, with little explanation as to their source or significance….So I am left to do the best I can in interpreting the materials received from Ontario, assessing upon which information I properly can rely, and which I cannot, and then applying the evidence I heard from Ms. H.B.H. to that background, all in an attempt to “confirm” an order made provisionally in the province of Ontario.43

The Court considered the evidence provided in the British Columbia court together with the documents received from Ontario in accordance with the ISOA.  Based on all of the information, Justice Stansfield held that the children remained in the care of their mother and therefore were children of the marriage.  His Honour declined to confirm the Ontario order terminating support obligations for the children. 

In S. (G.W.) v. S. (H.L.)44 , Justice Stansfieldagain highlights the problems associated with the current legislative procedure concerning interjurisdictional enforcement.  The father, a resident of Ontario, applied to vary the existing court order under which the father was obliged to pay child support for two children of the marriage. The court stated that although it was unclear from the materials received from the designated authority, it appeared that the father submitted his application with the intention of canceling or reducing arrears of support.  A lack of relevant materials was presented to the court from both parties.

Justice Stansfield ultimately referred S. (G.W.) v. S. (H.L.) back to Ontario without making an order in the case so that the Ontario Court could secure evidence as to the circumstances of the child in question in order to determine whether the eighteen year old child is no longer a child of the marriage for support purposes. 
           
His Honour noted the troublesome trend under the new legislation:  that no representative on behalf of the Director of the Family Responsibility Office or for the Attorney General of either province is in attendance during the hearing to assist the court with discerning what may be the relevant facts arising out of the originating jurisdiction.  Judges are left to review the files, and “fill in the blanks” and generally do as best they can to determine the context and relevant information.  The lack of representation contributes further to the delay and protracted proceedings.  As a result of not having proper materials before him, His Honour directed that the matter before returned to Ontario.

3.  CONCLUSION

The ISOA was enacted to create a convenient and cost effective means of obtaining, varying and enforcing interjurisdictional support orders.  The most significant change from procedure found under the former Act is the elimination of the provisional variation procedure.  A clear improvement has been to provide more readily available  access to the forms, together with explanatory guides and procedural analysis.  While the time to enforce an order has been reduced in some cases, the ISOA has largely failed to fulfill its legislative purpose. Except in the simplest cases, the procedure usually remains time-consuming and cumbersome. Documentation can be exchanged between governmental authorities several times after additional and then updated evidence is requested as required, causing delay and expense.  Judges find themselves acting not only as arbiter of the issue, but as counsel for the parties, the reciprocating jurisdictions, or the children themselves.  Parties can find themselves engaged in a game of jurisdictional and informational ping-pong before a final judicial determination is achieved. 

Technology is available to improve the current ISOA enforcement procedure.  Conducting hearings by audio or videoconferencing could reduce cost, delay and allow judges to more readily discern the relevant facts.  In his annotation to Lynch v. Lundrigan, the late Professor MacLeod stated that perhaps the process might prove more efficient if the matter was heard in the applicant’s jurisdiction, as the person who seeks to vary an order would be more inclined to move the matter forward. 

To ensure that support orders are enforced as expeditiously as possible, amendments to the ISOA could provide for one hearing with all parties present by video teleconference, if necessary. 

 

1 S.O. 2002, c.13 (the “ISOA”).

2 Section 26, ISOA; Rozzi v. Ontario (Director, Family Responsibility Office) (2003), 38 R.F.L. (5th) 181 (Ont. C.J.).

3 R.S.C. 1985, c.3 (2nd Supp.) [Divorce Act].

4 R.S.O. 1990.c R.7 (the “RESOA”).

5 Mathers v. Bruce (2005), 2005 CarswellBC 1911 (B.C.C.A.), at para. 4 [Mathers].

6 Alberta, British Columbia, Manitoba and Saskatchewan proclaimed the ISOA on January 31, 2003; Nova Scotia, Newfoundland and Labrador and Ontario proclaimed the ISOA on March 31, 2003; Prince Edward Island proclaimed on May 10, 2003, New Brunswick proclaimed on February 1, 2004 and the Northwest Territories proclaimed the legislation on August 15, 2004.  The Yukon has given Royal Assent to its bill. Quebec’s bill was introduced on June 13, 2003. 

7 Mathers, supra n.3 at 4.

8 Section 26, ISOA; Rozzi v. Ontario (Director, Family Responsibility Office) (2003), 38 R.F.L. (5th) 181 (Ont. C.J.).

9 R.S.C. 1985, c.3 (2nd Supp.) [Divorce Act].

10 Mathers, supra n.3 at 6.

11 “ISO Unit”.

12 “FRO”.

13 For further information, contact the ISO Unit at (416) 240-2410 or 1-800-463-3533.

14 See the Ontario Family Responsibility Office Web site at www.thefro.ca. The reciprocating jurisdictions include in Canada: all provinces and territories; in the United States: all States, the District of Columbia, Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands; in the United Kingdom: England, Scotland, Northern Ireland, Wales, Guernsey, Alderney and Sark, Jersey, and Isle of Man; in Europe: Austria, Finland, Germany, Gibraltar, Malta and Poland; in Africa: Ghana, South Africa, and Zimbabwe; in Asia: Hong Kong; and Australia, Fiji, New Zealand and Papua New Guinea;

15 Portions of this section have been excerpted from Wilton & Miyauchi, Enforcement of Family Law Orders and Agreements (Westlaw Ecarswell, Thomson Canada Ltd), 1:15 [Miyauchi & Wilton].

16 See www.thefro.ca.  Completed and sworn support applications are submitted to the ISO Unit at: Family Responsibility Office, ISO Unit, P.O. Box 640, Downsview, Ontario M3M 3A3. The ISO Unit then sends the completed forms to the reciprocating jurisdiction. The reciprocating jurisdiction responds to the ISO Unit, and the court in the reciprocating jurisdiction has the power to make an order, adjourn the matter, request further documentation or refuse to make an order, pursuant to the ISOA. 

17 The jurisdictions still requiring provisional orders include the United Kingdom, the Isle of Man, New Zealand, Hong Kong, Guernsey and Sark, Quebec and the Yukon territory.

18 2004CarswellOnt 4732 (Ont. C.J.) [Humphries].

19 O.Reg. 114/99.

20 (2005), 15 R.F.L. (6th) 77 (Ont.C.J.).

21 J.G. McLeod, Annotation, 2005 CarswellOnt 2915.

22 2005 CarswellBC 1911 (B.C.C.A.)

23 2005 CarswellOnt 6044 (Ont. C.J.).

24 Jurisdiction over a party can be acquired in one of three ways:  1) the respondent resides in the state when the case was commenced; 2) the respondent attorns to the jurisdiction of the Court; or 3) the respondent has a “real and substantial connection” with the state where the judgment issued. 

25 2003 CarswellSask 550 (Sask. Q.B.).

26 2005 CarswellOnt 872 (O.S.J.).

27 R.S.O. 1990, c.F.3.

28 2005 CarswellAlta 968 (Alta. Q.B.).

29 In Prichici v. Prichici, 2005 CarswellOnt 1952 (Ont. C.J.), the Court held that it is sufficient for the defendant to be present in the jurisdiction for the plaintiff to have the right to commence proceedings there since an application for child support is an action in personam. The onus then falls to the defendant to show that another jurisdiction is the more convenient forum.

30 2003 CarswellBC 1234, (B.C.S.C.) 227 D.L.R. (4th) 540, 39 R.F.L. (5th) 410.

31 Miyauchi & Wilton, supra n.13.

32 [2001] O.J. No.5614 (O.C.J.).

33 2005 CarswellBC 1963 (B.C.C.A.), reversing 2003 CarswellBC (B.C.S.C.).

34 2004 CarswellBC 2425 (B.C.P.C).

35 2004 CarswellPEI 73 (P.E.I.T.D.) [In Chambers].

36 2004 CarswellBC 2135 (B.C. Prov. Ct.).

37 2003 CarswellBC 1221 (B.C.S.C.).

38 (2002), 215 Nfld & P.E.I.R. 62 (N.L.C.A.).

39 2005 CarswellBC 1478 (B.C.S.C.).

40 2003 CarswellMan 42 (M.B.C.A.).

41 2002 CarswellPEI 37 (P.E.S.C.T.D.).

42 [2004] B.C.J. No.1076 (B.C.P.C.).

43 Ibid., at para.1-2.  These comments were adopted in I. (M.) v. T.(A.).

44 2004 CarswellBC 2907, 2004 BCPC 450.