Some Considerations for Practitioners in Inter-jurisdictional Support Cases
Where to begin? (continued)
Question 4: Where does the respondent live?
If the respondent lives in another Canadian province or territory, a support order made by the Court in the client's province or territory can be registered in the jurisdiction where the respondent lives and must be given
"full faith and credit"Footnote 7 in that jurisdiction. Therefore, if the respondent is served in another province or territory and a response to the application is filed or the judge finds that, on the facts of the particular case, there are grounds to exercise jurisdiction over the respondent to make the support order, the order may be sent to the respondent's province or territory of residence (through the appropriate government channels) to be registered and enforced. The respondent will not be able to challenge the jurisdiction of the Court in the respondent's own province. If the respondent wants to challenge jurisdiction of the initial Court, it must be done before that Court makes the order. The respondent may, of course, file his or her own ISO Support (Variation) Application seeking to vary the amount of support (including arrears), but there is no available procedure for an application to set aside registration of the order in the respondent's own province.
If the respondent lives in the United States, there are more questions to ask. These are based on the provisions concerning jurisdiction over non-residents set out in American uniform state law that governs inter-jurisdictional support cases, known as UIFSA. UIFSA stands for Uniform Interstate Family Support ActFootnote 8 and is the American counterpart to the ISO laws in Canadian provinces and territories.
Where the answer to any of the following questions is "yes", it is possible to argue to the applicant's home Court that it ought to make an order against the US respondent:
- Is there any likelihood that it will be possible to serve the respondent personally in the applicant's province or territory? For example, is the respondent expected to come for a visit with the child in the near future?
- Does the client think the respondent might agree to participate in the court proceeding in the home province or territory?
- Did the respondent ever live with the child in the home province or territory?
- Did the respondent ever live in the home province or territory and provide prenatal expenses or support for the child?
- Can it be shown that the "acts or directives" of the respondent are responsible for the client and the child living where they do? For example, did they flee from a family violence situation to this jurisdiction because of family or other ties and could the choice of where to go have been foreseen in some way? Or did the respondent send the client and child to the province or territory indicating a plan to join then in a family move?
- Did the respondent engage in sexual intercourse in the home province or territory and might the child have been conceived by that act of intercourse? Did the respondent acknowledge parentage of the child for official records in the home province or territory?
If the client can answer yes to any of these questions, you are able to advise the Court that a court in the respondent's American state of residence is likely to recognize that the local Court has personal jurisdiction over the American respondent in the area of child support by showing that the facts support one or more of the
"bases for jurisdiction over a non-resident"set out in section 201 of "UIFSA."
If the Canadian Court is satisfied that it should exercise jurisdiction over the non-resident respondent and a support order is made, it's necessary to ensure that there is proof of the facts supporting the appropriate ground on which the claim is based, and proof of service, of course, so that if the order is sent to the U.S. state to be registered for enforcement and the respondent challenges the registration, the documentation needed to defend such a challenge can be quickly provided to the appropriate authorities in that state.
If the answer to all seven questions is no, then the client will probably have to proceed with the ISO forms application route. However, instead of just using the ISO forms, it may be useful to supplement the ISO forms with American forms. The designated authority in the home province or territory may be able to advise if, in a particular case, this is wise and help locate the American forms. In Manitoba , for example, the designated authority recommends that applicants use ISO Forms A & B, but instead of using the otherwise appropriate additional ISO forms, use the UIFSA forms that deal with the same information.
If the client is seeking spousal support only or along with child support and the respondent resides in the United States , it is very likely that the client will not be able to obtain the spousal support order through the forms application process. If the client is seeking spousal support and child support, it will probably be necessary to look closely at the possibility of an application to the Court in the home province or territory.
A client seeking spousal support only and no child support, can still seek an order, but it may not be enforceable through the child support enforcement agency of the respondent's state. As the names imply, the American child support agencies focus their resources on child support. American states are able to enforce support orders that include child support and spousal support for the custodial parent and some states might enforce spousal support only orders, but the latter is up to each state to determine. If a client is seeking spousal support only, contact the designated authority in the province or territory before proceeding with the application to determine if the state where the respondent resides is one that will enforce spousal support only.
If the respondent does not live in Canada or the United States, find out if the respondent lives in a "reciprocating jurisdiction". If so, contact the designated authority in the applicant's province or territory for tips about the best way to proceed. Designated authorities in some provinces and territories may have this type of information.
If a divorce is being sought, in most cases the best option will be to seek support as part of those proceedings since it is necessary to serve the respondent anyway. Many countries (other than the United States) that are reciprocating jurisdictions with provinces and territories will recognize a support order made on ex juris service based on the "creditor's jurisdiction" even if the respondent does not respond to the Canadian court proceeding, so long as there is sufficient evidence that he was given notice of the proceeding and the opportunity to participate. The challenge in those cases will be to provide enough evidence to the Court in the home province or territory to allow the Court to determine (or impute) the respondent's income in order to set the amount of child support in accordance with the child support guidelines.
Some countries have their own specific forms that are required ( Australia , for example) and others require "provisional orders" (United Kingdom , Hong Kong , New Zealand). Most non-English speaking countries require that documents be translated into their language, so factor in this cost as well. The designated authority in the home province or territory may have access to some forms that are bilingual English / other language that can be used in certain cases, so ask about these: the use of these forms can significantly reduce the cost of translation.
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.
Question 5: Which procedure is "better": An ISO forms support application or an application to the home Court?
It depends. Each procedure has its own advantages and disadvantages.
An ISO forms application is more accessible in the sense that a person can complete the forms on their own or with help. The other party does not have to be served and there is usually no filing fee. The application will be reviewed for completeness by the designated authority in the home province or territory and will usually be sent to the respondent's jurisdiction within a couple of weeks of it being submitted. When a support order is made in another province or territory, the ISO Act of that province enables the judge to make a retroactive order, so there is specific statutory authority in the common law provinces and territories for retroactive orders with an ISO application. However, once the application is sent to the other jurisdiction, it is completely up to that jurisdiction to process it. The time it takes to complete the process varies from one province to another. In some cases, it can take several months before the application is filed with the court and courts in some jurisdictions seem to be able to handle these types of applications more effectively than others. Be vigilant and make periodic contact with the designated authority to follow-up on the status of the application.
In certain types of cases where the respondent lives in the United States or another country and the facts of the case support an argument in favour of the court exercising jurisdiction over the non-resident respondent, the client might want to consider making an application to the home court for an order, rather than simply using the ISO forms process for the following reasons:
- It might be quicker;
- An order made pursuant to provincial or territorial family support law or the Divorce Act will apply the applicable Child Support Guidelines to determine the amount of support, which might produce a higher amount than the applicable child support guidelines or laws of the respondent's state or country. (The attached list of resources includes a website that will take you to most, if not all, U.S. state child support guidelines–it is necessary to dig deeper to find out what law will be applied to determine the amount of support in other countries);
- A child support order made pursuant to provincial or territorial family support law or the Divorce Act will normally continue until the child is no longer a child as defined in the applicable legislation. In other words, it may continue for several years after the child reaches the age of majority. A child support order made pursuant to American state law will usually end automatically when the child reaches the age of majority (usually 18 or 21 years of age, depending on the state) regardless of whether the child continues with post-secondary education unless the parties so stipulate or the order specifies otherwise. It can also end earlier than age of majority if the child emancipates (e.g., marries, joins the military, emancipates through court order, etc.). If this is a consideration, find out what the applicable state law says about the duration of a child support obligation in order to help decide how to proceed. A support order from the home province or territory should clearly state the statute pursuant to which it was made so that proof of duration of the child support obligation can easily be provided to the American state child support agency being asked to enforce the order;
- If the respondent later decides to try to change the order, the law of the respondent's state (e.g. UIFSA) will require the respondent to submit the application to the province or territory in which the original order was made so long as the client or the child continues to live in that jurisdiction.
If applying to court in the client's own province or territory to request a custody order, spend a bit more time determining if the case is an appropriate one to ask for a child support order as well, and to be armed with the arguments outlined above. The Court might decline to make the order, and then the client still has the "ISO" forms avenue available.
Note that although ISO legislation provides that parentage can be determined as part of the support application, some reciprocating jurisdictions cannot or will not do this.
In some cases the client will first need to apply to the Court in the home province or territory for a declaration of parentage if, for example: the parties were not married when the child was born; the respondent is not named on the birth certificate; and there is no order determining that the respondent is the father.Footnote 9
Question 6: If the client and the other party are married, should the client apply for child support pursuant to the Divorce Act or should the ISO forms application process be used?
Both of these would normally be an option as the ISO forms application is akin to an application under provincial or territorial family support legislation. If the client is seeking a divorce, ask for child support in the same proceeding. If the respondent is served, the Court certainly has jurisdiction pursuant to the Divorce Act to make a child support order even if the respondent does not respond or participate in the proceeding. Lack of adequate financial information to make an appropriate child support order might cause the Court to steer the client toward making an ISO application. Alternatively, the Court might decide to impute income to the respondent and make an order, which might be best for your client since the order could get into the enforcement system sooner. Not surprisingly, this process often encourages payors to show themselves and produce better financial information, especially if the imputed income is higher than the actual income.Footnote 10 Even if the imputed income is lower than the payor's actual income, there is something to be said for getting an enforceable order in place sooner rather than later. If the client later learns that the respondent's income is higher than the imputed amount, the client can file a variation application down the road. (Provisional variation orders under the Divorce Act will be addressed shortly.)
Since the Divorce Act is the law throughout Canada , the Court in the client's province or territory has jurisdiction to make a child support order against a person living outside the province or territory and that order is enforceable in every other province and territory pursuant to the Divorce Act.
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"Footnote 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 a Divorce 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.
Question 7: What about variation applications?
ISO laws and the Divorce Act both contain provisions allowing for an inter-jurisdictional or inter-provincial support variation process.
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