Obtaining and Enforcing Interjurisdictional Child Support Orders

By Katie Lloyd, Family Law

I. Current Legislation

Obtaining and enforcing child support Orders when both parties reside in the same area can be difficult. An additional level of complexity is added in circumstances where the parties reside in different jurisdictions. However, recently enacted legislation aimed at simplifying the process can assist both payor and recipient to resolve these issues more quickly than ever before.

The current legislation setting out the process for obtaining and enforcing support orders when the parties reside in different jurisdictions is found in the Interjurisdictional Support Orders Act, 2002 S.O. 2002, c. 13 (“ISO Act”). The Interjurisdictional Support Orders Unit (“ISO Unit”) is the designated authority in Ontario that assists in administrating the act. The ISO Unit is located at the Family Responsibilities Office (“FRO”) and can be contacted by calling the FRO or visiting their website.

Participating jurisdictions (provinces, territories, states or countries) are referred to as reciprocating jurisdictions. You can view the list of reciprocating jurisdictions on FRO’s website.

Since at least 1950 Canada has had relatively uniform legislation setting out a comprehensive scheme for the registration, enforcement and variation of different kinds of support orders among participating jurisdictions.

The primary purpose of enacting the ISO Act was to reduce the time and cost of the process associated with recognizing or making interjurisdictional orders.

Previous legislation required at least two hearings, one in the jurisdiction where the claim was being made, and the other in the jurisdiction where the respondent (the person responding to the support application) was residing.

As such, if a spouse or parent and child resided in Ontario it was necessary, after a proceeding was commenced, to appear before a court and give evidence, viva voce (orally), in order to obtain a provisional support order.

Once a transcript of the evidence was obtained, the provisional order and the evidence would be sent to the reciprocating state where the respondent was residing. Evidence from the respondent would be heard in a court in the reciprocating state and the provisional order might be confirmed in whole or in part.

A court might, before deciding whether to confirm the provisional order, request further evidence and another hearing would be held in the originating jurisdiction and again forwarded to the reciprocating jurisdiction. Once confirmed, the order becomes an order of the confirming court.

The ISO Act eliminates the number of hearings, such that there is no longer a provision/confirmation process in most circumstances, but rather one hearing to take place in the jurisdiction of the respondent. Further, the ISO sets up a process by which orders can be made or registered relying on affidavit evidence, rather than requiring viva voce evidence.

The only time the provisional/confirmation hearing process is retained is if the reciprocating jurisdiction requires. For example, the United Kingdom continues to requires a provisional hearing in Ontario. The reciprocating US States do not require provisional hearings.

View a list of the jurisdictions that require provisional orders on FRO’s website. Currently the following reciprocating jurisdictions require provisional hearings:

• United Kingdom
• New Zealand
• Germany 
• Bermuda 
• Hong Kong, and
• Quebec

II. The Process for Obtaining or Varying a Child Support Order under the ISO Act

The ISO Act applies to:

• Registering support orders made in reciprocating jurisdictions for enforcement in Ontario.
• Making a support order when the applicant lives in Ontario and the respondent lives in a reciprocating jurisdiction.
• Making a support order when the applicant lives in a reciprocating jurisdiction and the respondent lives in Ontario.

The ISO Act does not apply to:

• Varying a support order made under the Canadian federal Divorce Act.
• Making a support order when both parties reside in Ontario.

As of March 31, 2003 you must use standard forms to make an application or vary a support order where one party lives in a reciprocating jurisdiction. Some reciprocating jurisdictions require that the forms be commissioned, others that they be notarized. These forms are available on the FRO’s website.

The person in Ontario applying for a support order fills out the application forms and sends them to the ISO Unit. The forms are then forwarded to the reciprocating jurisdiction where the respondent lives. The appropriate authority (usually a court) in the reciprocating jurisdiction serves the respondent and makes a support order based on the applicant’s and respondent’s written material. The support order is then provided to the ISO Unit and the applicant.

If the applicant lives outside of Ontario they will need to contact their regional enforcement office, child support agency or court office for the correct forms and information relevant to starting the process in their jurisdiction.

If a respondent living in Ontario receives documents from the ISO Unit regarding an application or variation begun in a reciprocating jurisdiction, they will need to complete the relevant forms to respond to the applicant’s claims. A court in Ontario will then dispose of the matter and forward the support order and any reasons given for it back to the ISO Unit in Ontario, who will then forward it to the appropriate authority in the reciprocating jurisdiction, who will then remit it to the original claimant.

It is important for applicants and respondents to know their rights and obligations when completing the forms.

III. The Process for Registering a Support Order That Was Not Made by an Ontario Court for Enforcement

If a support order was made in a reciprocating jurisdiction, and one or both parties now reside in Ontario, it can be registered in Ontario for enforcement. To register the order complete the FRO Registration Package and attach 3 certified copies of the order. When the Registration Package is complete, send it to the ISO Unit.

If the support order was made in Ontario and the other party lives outside Ontario, complete the FRO Registration Package, attach a copy of the order and send it to the ISO Unit.

If the order was made outside of Canada then notice of its registration will be given to any party to the order believed to reside in Ontario. Within 30 days of receiving such notice a party to the order can apply to the Ontario court to set aside the registration. If you receive such a notice it is important to act within this 30 day period, if you feel the order should not be registered.

Once an order has been registered established or varied using the ISO Act it can be
filed with the FRO for enforcement.  Such an order should be enforced in the same manner as an Ontario order would be enforced. Any questions regarding enforcement of an order should be directed to FRO.

IV. Choice of Law

For an application to establish a support order the ISO Act provides the following choice of law provisions:

• For entitlement to child support apply the law of the jurisdiction of the child’s ordinary residence
• If the child is not entitled under that law, apply Ontario law

• For quantum of child support apply Ontario law

For an application to vary an existing support order the ISO Act provides the following choice of law provisions:

• For entitlement to child support apply the law of the jurisdiction of the child’s ordinary residence
• If the child is not entitled under that law apply Ontario law

• For quantum of child support apply the law of the jurisdiction where the person liable to pay the support ordinarily resides

This article was intended to give some basic information regarding the ISO Act and the process for obtaining and registering a support order where one party resides outside Ontario. Many issues may complicate the process and we suggest that you attend with a lawyer for legal advice before undertaking to complete the required forms to start or respond to an application for a support order.

 

<-Back

---

The above is not intended to constitute legal advice. Please contact a lawyer to clarify your legal rights.