Overview of Canadian System of Support Establishment, Variation and Enforcement

1. Overview of Canadian System of Support Establishment, Variation and Enforcement FEDERAL- PROVINCIAL -TERRITORIAL INTERJURISDICTIONAL SUPPORT SUB-COMMITTEE June 24, 2008

2. Family Structure in Canada Source: Statistics Canada 2006 Survey

3. Constitutional Aspects • Canada is composed of 10 provincial jurisdictions, 3 territorial jurisdictions and one federal jurisdiction. • The Canadian Constitution divides the power to govern and make laws between the federal and the provincial/territorial governments.

4. Canada Has Two Legal Systems The province of Quebec has a civil law system. The other provinces and territories use civil law.

5. Legislative Authority • Most family law matters fall within the jurisdiction of the provinces and territories, but the federal government has authority over divorce. • Family support can be ordered under provincial/territorial family law, or under the Divorce Act in the context of a divorce proceeding.

6. Family Law - Federal Legislation • Divorce Act • Child Support Guidelines • Tables for each province/territory • Based on annual income of paying parent & number of children • For child support payments

7. Provincial/Territorial Legislation Civil law province – Quebec • Civil Code of Quebec - governs support entitlement, establishment, variation, recognition and enforcement of foreign orders. • Quebec Child Support Guidelines • Based on income of both parents and number of children.

8. Common Law Jurisdictions Provinces and Territories • British Columbia, Alberta, Manitoba, Saskatchewan, Ontario, Yukon, Northwest Territories, Nunavut, Prince Edward Island, New Brunswick, Nova Scotia, Newfoundland & Labrador. Family law statutes • Substantially similar. • Govern entitlement, establishment, variation and enforcement. • Child Support Guidelines that are similar to federal guidelines have been enacted or will be enacted.

9. Establishing Support – under ISO Application initiated under the Inter-Jurisdictional Support Orders Act (ISO) • Forms-based support application and support variation application process. • An ISO Support Application is not an application to the court of the Applicant’s jurisdiction, it is an application or request to the court in the Respondent’s jurisdiction to establish a support order, and includes a sworn package of documents completed by the Applicant and forwarded to the court. • The ISO Act recognizes that the Respondent’s court has jurisdiction to make a support order based on the information in the application and evidence provided to the court by the Respondent.

10. Applicant lives outside Canada: Establishing Support Order • Applicant outside Canada serves Canadian Respondent ex juris with application to establish an order in Applicant’s jurisdiction. • If Canadian Respondent attorns to the jurisdiction of the Applicant's court; a final order can be made, registered and enforced in Canada. • If the Respondent has not attorned, can make an application to a Canadian court to set aside registration of foreign order and establish Canadian support order.

11. ISO Support Application • Applicant, living in reciprocating State, can complete the Canadian support application forms or submit documents similar to those forms to the reciprocity office in Canadian jurisdiction where Respondent resides. • Canadian court can then establish support order (using guidelines). • Canadian support order can then be enforced by the government enforcement agency and funds forwarded to reciprocating State.

12. Variation of Support Obligations Applications to vary • Increase, decrease, or end support. • Delete or reduce arrears. • Similar to establishment of applications. Provincial/Territorial law – variation applications • ISO legislation permits application to be sworn by Applicant and variation order to be made by Respondent’s court in reciprocating jurisdiction. • If reciprocating jurisdiction is a REMO/RESO jurisdiction requiring a provisional order, ISO accommodates that procedure as well. • Only Canadian court may vary a support order made under the Divorce Act.

13. Reciprocity • Canadian jurisdictions have substantially similar reciprocity legislation governing inter-jurisdictional cooperation in the fields of maintenance obligations - based on model legislation. • All Canadian provinces and territories have reciprocity arrangements with each other, and with a number of other foreign reciprocating jurisdictions.

14. Foreign Reciprocity Arrangements Establishing arrangements • Due to Canada’s constitutional structure, arrangements are negotiated between provincial/territorial governments and a foreign government. • Depend on the laws of the two jurisdictions being substantially similar.

15. Establishing Similarity of Laws Foreign laws are similar enough to Canadian laws where they • Recognize the same principles of procedural fairness as Canadian Laws; • Provide for adequate, no-cost enforcement of established orders; • Provide persons seeking support an opportunity to obtain an order against someone in another jurisdiction; and • Allow for variation of an existing order.

16. Recognition of Foreign Support Orders in Canada To be recognized and enforced a foreign order must be • Sent to designated authority that can be either the Attorney General or Minister of Justice with information indicating that Applicant/Respondent lives in province or territory. • Sent to designated court for registration by the designated authority. • Some Canadian jurisdictions provide for transmittal by the claimant or the designated authority while other Canadian jurisdictions can only accept transmittal by the designated authority. • Filed with a court in a province or territory.

17. Registration of a Foreign Order • Order registered by filing with court. • Notice of Registration sent to Respondent. • Respondent has 30 days to apply to have registration set aside. • If no application to set aside, order is recognized and enforced as if it were a final order of that province or territory.

18. Setting Aside Registration Registration can be set aside if • A party did not have proper notice or a reasonable opportunity to be heard. • The order is contrary to public policy in the province/territory where the application is heard. • The court that made the order did not have jurisdiction to make the order. If registration is set aside, court must • Treat the order as a support application, or a support variation application, and proceed with a hearing to establish or vary support. • The court may wish to get additional information from the Applicant before making an order.

19. Enforcing a Foreign Order Once registered • Can be enforced, varied, or rescinded as if the order were an order of that province or territory. • Can even be enforced if the order is one that the province or territory could not have made, or where it would not have had jurisdiction.

20. Enforcement by Provinces and Territories • Once an order is recognized and enforceable, then each provincial and territorial government enforcement agency will enforce and collect money owing to a family support recipient. • Money collected will be paid to the support recipient whether or not he or she lives inside or outside the province or territory. • The support recipient will not need a lawyer in Canada as all enforcement is done by government officials.

21. Canadian Maintenance Enforcement Programs Program objectives • Relieve maintenance recipients from emotional & financial stress relating to enforcement. • Increase and enhance enforcement, leading to greater compliance (diminish financial burden on social assistance programs).

22. Program Operations Procedures on receipt of order • MEP registers order: • Order must be for a specific amount. • Records and monitors payments. • Takes enforcement action when required payments are missed or late. • Maintenance order must be registered with program to be enforced.

23. Enforcement The following may be registered for enforcement in most jurisdictions • Any maintenance order made in Canada. • An agreement signed by parties providing for spousal and/or child support and filed with a court. • Maintenance orders eligible for enforcement under Inter-jurisdictional Support Orders legislation, where reciprocal arrangement exists.

24. Examples of Enforcement Procedures • Garnishment of wages, bank accounts and federal payments (EI, OAP, etc.); • Payor required to file financial information; • Payor required to attend “default hearing”; • Payor’s assets may be seized or sold; • Order registered against payor’s land (lien); • Incarceration for up to 180 days; • Suspension of driving privileges; and • Denial, suspension of federal licences – e.g., passports, pilot & marine licences.

25. Since Mid-1980s MEP Program impact • Collection rates 70-95% across Canada. • Custodial parents aware they can get assistance if not receiving support . • Many payors paying as they are aware of MEP. • Some payors register with MEP to reduce conflict with support recipient. • MEP is addressing government goal of promoting equity & fairness and enhanced quality of life. • MEP is recovering funds on behalf of other government social service programs, including public assistance.

26. Role of the Federal Government • A federal office has been established to assist and support the provinces and territories in their enforcement activities. • Federal initiatives facilitate the collection and enforcement efforts of the provincial and territorial Maintenance Enforcement Programs.

27. Role of the Federal Government • The Federal Government is working with the provinces on the following initiatives (among others): • Immigration Issues. • U.S. Border Crossing Issues. • Mandatory Filing of Tax Return.

28. Family Law Initiatives • Family law initiatives in Canada require a great deal of co-operation and co-ordination amongst the various jurisdictions. • This is achieved through the combined efforts of several federal-provincial-territorial committees.

29. FPT Collaborative Efforts Co-ordinating Committee of Senior Officials - Family Justice Inter-Jurisdictional Support Sub-Committee Family Law Initiatives Maintenance Enforcement Program Directors

30. 5 Helpful Hints for Working Together 1. Caseworker telephone numbers • 1-800 numbers do not work from Canada. 2. Registration packages always • All three certified copies of the order are required to open a file. 3. Payor information • If available, always include the Canadian Social Insurance Number (SIN) or mother’s maiden name in the application package. 4. Medical Support request • Provide evidence of the costs of the child's medical insurance needs. 5. How to contact Maintenance Enforcement Programs • Please consult the following website: http://canada.justice.gc.ca/eng/pi/sup-pen/prov/provpro.html.

31. Conclusion • Collaborative efforts have lead to the successful development and implementation of family support initiatives nationally and internationally. • Work continues in the field of family law to ensure that the needs of families and children are being met.

32. Resources • Justice Canada website: http://www.justice.gc.ca/eng/pi/sup-pen/enf-exe/index.html • All Canadian provinces and territories have websites. • NCSEA website: http://www.ncsea.org/ • OCSE website: http://www.acf.hhs.gov/programs/cse/