When to Use the ISO Act

By Katie Lloyd, Family Law

There is some controversy regarding if and when it is possible for a claimant to choose between using either the Interjurisdictional Support Orders Act, 2002 S.O. 2002, c. 13 (“ISO Act”) or Ontario’s ‘regular’ court process to obtain or vary a child support order where one party resides in a different jurisdictions.

Some case law suggests that the applicant has a choice whether to bring their proceedings under Ontario’s ‘regular’ process, in accordance with the Family Law Rules, or under the ISO Act. For examples, see Humphries v. Rokoss, [2004] O.J. No. 4658 and Bouchard v. Ouellet (2005), 15 R.F.L. (6th) 77.

In Bouchard v. Ouellet (2005) the claimant was allowed to choose to apply for and obtain a final support order in Ontario against a father who resided in British Columbia. The difficulty with this approach was pointed out by James G. McLeod in his annotation to Bouchard v. Ouellet (2005), wherein McLeod explains that the Honourable Justice Little's decision in Bouchard v. Ouellet (2005)resulted in a final support order that is unenforceable outside of Ontario.

The difficulty with the enforcement of support orders made outside the jurisdiction where the order is to be enforced, stems from the fact that at common law, only certain monetary judgments were enforceable across jurisdictional boundaries and courts would not enforce a foreign in personam order unless:

1. the Order was final and conclusive, that is, beyond adjustment, variation or appeal;

2. the judgment plainly sets out the sum in the currency 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.

The difficulty with support orders is that they are not final and conclusive, but rather, they are subject to variation in the event of a material change with the result being that they are not enforceable extra-territorially at common law.

McLeod states that one of the purposes of the reciprocal and interjurisdictional legislative schemes was to resolve this difficulty, and explains that:

This was the main reason for the enactment of RESO legislation, as Smith J.A. pointed out in Mathers v. Bruce, and remains as much a problem today on conflict-of-laws principles as it was then. Although a final support order obtained in one reciprocating state can be filed and enforced in another reciprocating state under ISO legislation: cf. Mathers v. Bruce, it is unclear whether a court would treat an order against a non-resident respondent obtained by service ex juris as a final order capable of registration and enforcement.

In Green v. Longe  (2005), 2005 CarswellOnt 6044, Justice Little had the opportunity to consider the annotation that McLeod made of her decision in Bouchard v. Ouellet (2005). In Green v. Longe (2005) Justice Little refers to and follows McLeod’s rationale and concludes that the ISO, and preceding legislation in the area, were enacted to provide a procedure for obtaining enforceable cross-jurisdictional child and spousal support orders. Justice Little adjourned the claimant’s motion to vary to allow him to reconsider his application, in light of the fact that the order he was seeking would not be recognized in Manitoba, the jurisdiction in which the support was being enforced.

Another example is found in Kapolak v. Udlaoyak (2006), 2006 NWTSC 52. Again reference is made to McLeod’s annotation, with the Honourable Justice V.A. Schuler J. adopting McLeod’s rationale in its entirety.

Without reference to McLeod’s annotation, in V. (L.R.) v. V. (A.A.) (2006), 2006 CarswellBC 299, the British Columbia Court of Appeal held that their Interjurisdictional Support Orders Act is mandatory. It is a complete code which is complimentary to legislation existing in jurisdictions with which British Columbia has reciprocal arrangements.

While Ontario’s Court of Appeal has yet to address this issue, recent case law suggests that, where available, claimants in Ontario should be following the process detailed in the ISO Act to apply for or vary support orders, where the other party lives in a reciprocating jurisdiction. Otherwise (unless the respondent consents to, or attorns to, the jurisdiction of the Ontario court) a claimant risks the possibility of obtaining an unenforceable judgment.

 

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