International Families Money, Children & Long-Term Planning CHILD SUPPORT WORKSHOP

1. International FamiliesMoney, Children & Long-Term PlanningCHILD SUPPORT WORKSHOP PROGRAM PRODUCER: Ms. Rhiannon Lewis (UK) PRESENTERS: Hannah Roots (Canada) Gary Caswell (U.S.) Margaret Campbell Haynes (U.S.) Philippe Lortie (The Hague)

2. Establishment & Enforcement AbroadRecognition & Enforcement of Foreign OrdersSpeakers Hannah Roots Managing Director British Columbia Maintenance Enforcement Program Gary Caswell, Esq. Nuñez & Caswell

3. Overview • Establishment of a child support order • US Law • Canadian law and processes • Incoming requests for establishment in United States • Enforcement of an existing Child Support order • Canadian processes • Recognition and enforcement of a foreign order in US • Other Issues • Duration of child support • Currency Conversion • Modification of orders

4. Establishment of Parentage & Child Support in a Foreign Country – U.S. View • IV-D Federal Level Reciprocity • http://www.acf.hhs.gov/programs/cse/international/index.html • IV-D State Level Reciprocity • TX-Germany, CA-New Zealand, VA-Quebec • See, OCSE Intergovernmental Referral Guide for State Level Reciprocity & Other helpful information • Forms & Procedures • Give Foreign Tribunals what they want! (Documents, certificates, translation, foreign currency equivalence) • UIFSA 2001 § 304 (b) – Duties of Initiating Tribunal • Future: Hague Transmittal & Country Profiles

5. Establishment of Parentage & Child Support in a Foreign Country – U.S. View Cont’d • Make IV-D Agency do its job! Case Closure Criteria applicable when respondent is in a foreign country • 45 CFR CH.III 303.11(B)4: Can close if NCP locate unknown and have made diligent Efforts using Multiple Sources over 3 yrs via Automated Locate (if sufficient info to do Auto-Locate) & 1 yr if only have info for Non-Auto-Locate • 45 CFR CH.III 303.11(B)6:The NCP is a citizen of , and lives in, a foreign country, does not work for the Federal government or a company with headquarters or offices in the United States, and has no reachable domestic income or assets; and the State has been unable to establish reciprocity with the country (focus on citizenship, not Reciprocity) If US Citizen, can’t close for lack of reciprocity alone.

6. Establishment of Parentage & Child Support in a Foreign Country – U.S. View Cont’d • If No Reciprocity - Long Arm Factors • Is there a Jurisdictional basis for VA to establish support or determine parentage over a Nonresident Respondent (NR)? • UIFSA 2001 §201 bases: NR was personally served in VA; voluntarily submits to VA Jurisdiction; resided with the child in this state; resided in the state and supported the child; the child resides in this state because of NR’s acts or directives (DV cases?); sex in VA & child may have been conceived as a result; and any other basis which is “constitutional”. • Is Enforcement of resultant Order in U.S. possible? • (wage withholding, license revocation, property lien (cost & logistics of PAT);

7. Establishment of Parentage & Child Support in a Foreign Country – U.S. View Cont’d • Child vs. Debtor-Based Jurisdiction Stalemate • Kulko, 436 U.S. 84; 98 S. Ct. 1690 • Spring Break Affair in Cancun; CP in TX; AF in Quebec & never in TX; No TX-QU reciprocity; QU Local Counsel says no Jurisdiction to Establish PAT in QU = Stalemate! (File in TX, Child in TX as a result of AF Acts or Directives? Ask TX IV-D to ask VA IV-D (VA –QU Reciprocity to initiate to QU?) • No Reciprocity + No Long Arm = Foreign Attorney(s) • DOS Link for Retaining Foreign Attorneys • Non-Judicial Remedies • ADR & Cultural Pressure (Japanese Corps, Ball Clubs)

8. MEXICO • No Federal Reciprocity (despite Fernando Solana ‘92 Declaration re all MX states & URESA/RURESA • No Effective Central Authority Assistance • Enforcement Limited • Wage Withholding (specific to employer) • Abandonment • Service of Process: • New Developments Hague vs Inter-American; Exclusivity; PFI; Local Counsel • See, Gary Caswell “Judicial Assistance Conventions in Effect for Mexico and the USA” in course materials.

9. Canadian Family Law Framework • In Canada – family law is area of shared responsibility for federal government and provinces/territories • Federal law (Divorce Act ) governs family matters including child support for parents that were married • Provincial law governs all issues arising out of family breakdown outside marriage (never married, or interim orders before divorce) and property division • Enforcement of child support is exclusively a provincial responsibility (although federal government will enforce against federally regulated assets/income at request of a province) • Provincial/Territorial Interjurisdictional Support Order (ISO) Acts govern cases where one party resides outside province • ISO is similar to UIFSA (but not uniform across Canada) • Result is a patchwork of similar but not identical laws respecting family breakdown in Canada

10. Establishing Child Support in Canada • In terms of substantive law – there are a lot of similarities between Canadian and American family law • Some differences to be aware of: • In Canada – jurisdiction to establish a child support order can be based on the residence of the custodial parent and the child only (no need for NCP to have had any contact with Canada) • In Canada - Paternity does not have to be specifically established before a child support order can be made. It is up to NCP to raise the issue of paternity if he wants that issue determined, otherwise the support application may proceed without consideration of paternity

11. Forum Considerations :Establishment in Canada or US? Considerations • Cost • Very unlikely that legal assistance would available in Canada for establishment if CP retains local counsel • Use of IV-D Agency is cost-free to custodial parent • Time to obtain order • Domestic US processes may be faster than Canadian process as Courts in some provinces are quite backed up • A Canadian lawyer may be able to bring the application in a superior court – which can be much faster than a lower court process in Canada ( Many provincial/ territorial ISO processes use lower court) • Enforceability of order • As long as US Court had jurisdiction under US law, the resulting US order can be enforced in Canada – but it will still have to go through a recognition process in Canada (discussed later) • An order obtained in Canada (whether through IV-D process or through local counsel) can be immediately enforced

12. Paternity Establishment • ISO legislation does not allow a “stand-alone” paternity determination at request of a foreign applicant – it must be part of an application to establish child support • If request to establish a child support order comes through the IV-D system and NCP challenges paternity (or CP specifically requests establishment of paternity) • Designated authority will coordinate paternity testing • Processes vary but genetic testing can be done by agreement or Court order

13. Child Support Order • All Canadian child support guideline tables use NCP income to determine child support amount, but provincial/territorial order amounts vary slightly because income tax is taken into account • Order will be made in CANADIAN dollars • If establishment request comes through the IV-D system the order will be sent to local child support program for enforcement if the custodial parent requests • In private cases – the resulting Canadian order can usually be enrolled with the local enforcement program • However – some enforcement programs may be reluctant to let a foreign creditor directly register – check first

14. Establishment in Quebec • Quebec has not proclaimed its ISO legislation yet (anticipated in 2013-2014) • Current legislation ( REMO Act) does not allow a foreign creditor (CP) to request establishment of a child support order • Parent must retain lawyer in Quebec and bring an application before Court in Quebec • May be a consideration in determining whether it would be better to use domestic (US) law to establish the order, and then send the order for enforcement

15. Establishment of PAT & Child Support in U.S. for Foreign Petitioner • IV-D Policy on Direct Applications PIQ 99-01 As of today, Anybody Anywhere can apply for IV-D services • Legal Basis: Why not? Status of the place from which a cp applies for services is irrelevant in an establishment case filed under UIFSA” People ex rel. A.K., 2003 WL NCP = CO, CP = Russia HELD: CO can EST for applicant residing in Russia; CO guidelines may need deviation. • Practice Tip: Verify with DOS that providing legal assistance and facilitating the transfer of money to a N. Korean, Iranian, or Cuban CP does not constitute trading with the enemy or violation of an economic boycott. • Law Applicable: Lexfori& Petitioner need not travel to U.S. UIFSA 2001 § 316(a) & rules of evidence & inter-tribunal communications apply

16. Enforcement of Child Support in a Foreign Country – U.S. View • Federal or State IV-D Reciprocity; • Forms & Procedures • Give them what they want: Documents, Certificates, Translation, Foreign Currency Equivalence etc • Long Arm • Local Counsel; • DOS Websites & Judicial Assistance Circulars – not so helpful for Child Support if Non-reciprocating Country

17. Enforcement of Foreign Orders in Canada • A foreign support order (child or spousal) must be registered before it can be enforced • Registration process comes under ISO Act and is similar to UIFSA process • Registration must be done by designated authority (no private process) but applicant can send order directly to designated authority • The order is registered by filing it with the Court • Notice of the registration is given to the respondent • Respondent can object to registration on basis he/she did not have notice, the order is contrary to public policy, or the Court that made it did not have jurisdiction (long arm could arise here) • If registration is set aside – order is treated as if it were a request to establish a new order

18. Enforcement Remedies • Enforcement of child support is rarely done privately in Canada • Private enforcement can be costly and in many provinces/territories there are enforcement remedies that are only available to child support program • Provincial/territorial enforcement programs use same type of enforcement measures as in US • Garnishment, liens, interception of funds and income • Passport denials, drivers licence suspension • Contempt-type court applications

19. Recognition & Enforcement of Foreign Orders in U.S. • Legal Basis - Federal Law & Policy • 42 USC 659a Secretary of State and HHS designate a country to be a Foreign Reciprocating Country (FRC) • 42 USC 659a(d) U.S. States can make reciprocity arrangements with foreign countries until superseded by FRC • Federal Policy: “Request” from FRC shall be treated the same as a request from a U.S. state

20. State –Foreign Country Arrangements - Constitutional? Yes! • Article II, Sec. 2, Clause 2 • Grants the President the power to make Treaties with the concurrence of 2/3 of the Senate • Article I, Sec 10 Clause 1 • provides no state can enter into a treaty • Article I, Sec. 10, Clause 3 • provides no state can enter into “an agreement or compact ...with a foreign power” without the Consent of Congress = 42 USC 659a(d)

21. Other State Law Providing Legal Basis • UIFSA 2001 § 102 (21) (B) … (in addition to reciprocating countries) a country which has • “Enacted a law or established procedures for issuing and enforcing support orders that are substantially similar to UIFSA procedures” • UIFSA 2001 § 104 (Remedies Cumulative/Not Exclusive) Recognition of foreign orders on the basis of other law OK, including comity (can’t register but can use UIFSA evidentiary & inter-tribunal communications provisions

22. State? Comity? • Grave v Schubert, 2000 WL1221343 (Minn.App.) UK order modifying MN order not recognized by MN because UK modified MN CEJ order. If UK does not recognize concept of CEJ, then it is not a “state”” • Foreman v. Foreman, 144 N.C.App. 582, 550 S.E.2d 792 (N.C.App., Jul 03, 2001) NC has jurisdiction to enforce England order since England is a “state” per a unilateral reciprocity extension agreement • Haker, 143 N.C.App. 688, 547 S.E.2d 127 Swiss Order not enforced because no reciprocity, no substantial similarity and not recognized under comity because no requirement of personal jurisdiction over respondent • Desselberg v. Peele, 523 S.E.2d Neither full faith and credit nor Full Faith and Credit for Child Support Orders Act apply to foreign orders, but NC will honor German order on the basis of comity

23. Recognition & Enforcement of Foreign Orders in U.S. – Cont’d • Indigent Clients have IV-D Agency Option • OCSE PIQ 99-01 – Direct Applications • Law Applicable • G/R Lex Fori • UIFSA 2001 § 303(1) Use local procedural and substantive law • Choice of Law • UIFSA 2001 § 604 (a)(1) law of issuing state governs nature, extent, duration and amount of current support • Statute of Limitation • UIFSA 2001 § 604(b) in an action for arrears, whichever statute (issuing or responding state) is longer

24. Duration of Child Support • In most provinces/territories child support will continue past the age of majority (18 or 19 years of age) • Will continue for so long as the child is “unable to withdraw from parent’s charge” or “unable to obtain the necessaries of life because of illness, disability or other cause...” • “Other cause” includes continuing in post-secondary education, inability to find gainful employment and generally a continuing dependency upon the custodial parent • Custodial parent will have to establish that the child continues to be dependent • Some provinces/territories may require a Court order to stop child support (unless the parents agree)

25. Recognition & Enforcement of Foreign Orders in U.S. – Cont’d • Currency Conversion • Judgment Date – G/R • Breach Date – ameliorates fluctuating rates • Aker Verdal, 828 P.2d 610 • Payment Date • See, Barry J. Brooks “International Family Support: Currency Conversion” paper in materials

26. Currency Conversion • Under ISO – orders expressed in US dollars will be converted for enforcement to Canadian dollars using exchange rate in effect on date the order was made or last varied • ISO Acts have no provision to modify or update this conversion rate • Can result in discrepancies between what is owing in US dollars (under a US order) and the converted amount in Canadian dollars • Recommended solution is to obtain an order in a US Court confirming the outstanding arrears - this can then be registered and will convert the arrears to the current equivalent amount • The currency conversion done under ISO does not modify the underlying foreign order – it simply states an Canadian dollar equivalent for enforcement purposes

27. Recognition & Enforcement of Foreign Orders in U.S. – Cont’d • Modification • UIFSA 2001 § 611 if issuing foreign court can not or will not modify its own order, U.S. state can modify & bind all subject to its jurisdiction • Cannot modify duration of foreign order UIFSA 2001 § 604 • Cannot modify spousal support order of another state UIFSA 2001 § 211

28. Modification of orders - Canada • Yes - Canadian courts may reduce or eliminate arrears of child support under foreign (and domestic) child support orders! • Legal basis is generally that there has been a significant change in circumstances and that it would be grossly unfair not to vary the arrears • A request by a party in Canada will be made under ISO, and that request will be transmitted to the jurisdiction where the other party lives • Hearing will take place in the other jurisdiction • UIFSA provisions are available to initiate a modification of a Canadian order being enforced in the United States BUT • Orders made under the Canadian Divorce Act cannot be varied outside Canada • A modification request must be made directly to the Court in Canada • If initiated by the Canadian party – other parent will be served ex-juris

29. Recognition & Enforcement of Foreign Orders in U.S. – Cont’d • Defenses • Not an Order • Commonwealth Provisional Order • German Youth Welfare Office Executable deed • May be better for NCP than local order • Due Process & Public Policy • See, Schuber, supra • Israeli Case • Reciprocity does not supersede

30. Resources • OCSE Caseworkers Guides (available on OCSE website) • Canadian Federal Department of Justice website • Canadian Provincial Enforcement Program websites • Gary’s paper “Judicial Assistance Conventions in Effect for Mexico and the USA” (in materials) • Handout – Completing USM Forms to send to Mexico • List of Helpful Websites (in materials)

31. Speaker Contact Information Hannah Roots British Columbia Maintenance Enforcement Program 2nd Floor 609 Broughton Street Victoria , British Columbia Canada (250) 220 – 4031 hroots@fmep.ag.gov.bc.ca Gary Caswell, Esq.318 Sumner DriveSan Antonio, Texas  78209  USATelephone:  210-414-1645gcaswell@nunezcaswell.com

32. UIFSA 2008 Speaker Margaret Campbell Haynes Senior Associate Center for the Support of Families

33. Goals of UIFSA 2008 • Implement the Hague Convention • Address international cases in general • Build upon UIFSA 2001

34. International Case Processing • Hague Convention is not exclusive remedy for international orders. • UIFSA already contained provisions re: bilateral agreements and state reciprocity arrangements. • A tribunal may also recognize a foreign order on basis of comity. • Some concepts – CEJ and DCO – do not fit neatly in international arena.

35. New Definition of Foreign Country • UIFSA 2001 incl. “qualified” foreign countries within definition of State • UIFSA 2008 has separate definition that incl. many, but not all, foreign nations:

36. A country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and: (A) has been declared under US law to be a foreign reciprocating country; (B) Has established a state reciprocal arrangement for child support; (C) Has law or procedures for the issuance and enforcement of support orders which are substantially similar to UIFSA procedures; or (D) In which the Convention is in force with respect to the United States.

37. Road Map • Articles 1 – 6, and as applicable Article 7, apply to a support proceeding involving: • A foreign support order; • A foreign tribunal; or • An obligee, obligor, or child residing in a foreign country. • Articles 1 – 6 may be applied by a tribunal recognizing and enforcing a support order on basis of comity • Article 7 applies only to Convention proceedings.

38. Article 7 • Definitions • Central Authority • Foreign support agreements (maintenance arrangements) • Procedure for registration, recognition and enforcement • Limited modification

39. Enforcement under UIFSA 2008 • Direct income withholding only for support orders issued by a state. No longer requires US employers to honor DIWs from foreign countries.

40. Registration for Enforcement • Procedure for non-Hague Foreign Support Orders • UIFSA 2001 • Procedure for Hague Foreign Support Orders • New Article 7 • Major difference • Documents • Time frames • Defenses

41. Documents Required • Non-Hague Foreign Support Orders • Transmittal Letter • Two copies of order, incl. one certified copy • Sworn or certified statement re: arrears • Certain obligor information • Certain obligee information • If applicable, name and address of person to whom support payments are to be sent • Request for DCO, if appropriate

42. Documents Required (cont’d) • Hague Foreign Support Orders • Transmittal Letter • Complete text of order [or abstract by issuing foreign tribunal] • Record that order is enforceable in issuing country • If default order, a record attesting to due process re: notice & opportunity to be heard • Record re: arrears • Record re: automatic adjustment of support • If necessary, a record re: receipt of free legal assistance in issuing country

43. Time Frame to Contest • Non-Hague Foreign Support Orders • Within [20] days after notice of registration • Hague Foreign Support Orders • Not later than 30 days after notice of registration • Not later than 60 days after notice if contesting party does not reside in US

44. “New” Defenses • Hague Foreign Support Orders • Recognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process; • Issuing tribunal lacked personal jurisdiction consistent with Section 201; • Order is not enforceable in issuing country; • If default order, there was a lack of due process re: notice & opportunity to be heard

45. Registration for Enforcement (cont’d) • Hague Foreign Support Orders • If a tribunal of a state does not recognize a Convention support order because • There was a lack of personal jurisdiction • There was procedural fraud • A proceeding between same parties with same purpose is pending before a tribunal of that state and that proceeding was filed first • The order is a default order but the notice and opportunity to challenge did not satisfy due process • Then the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order.

46. Registration for Enforcement (cont’d) • In fact, in a recognition and enforcement case that the IV-D child support agency is handling, the agency must take all appropriate measures to request a child-support order for the obligee.

47. What needs to happen? • The Senate gave advice and consent to ratify the Convention on September 29, 2010. • Congress must approve the implementing legislation. • States must adopt UIFSA 2008. • The President must deposit documentation with the Hague Conference on Private International Law ratifying the Convention.

48. Status of Bilateral Agreements • The U.S. currently has bilateral reciprocity agreements with 15 countries and 11 Canadian Provinces. • Convention does not affect any bilateral agreements.

49. Foreign Reciprocating Countries • Australia • Canadian Provinces/Territories • Alberta, British Columbia, Manitoba, New Brunswick, Northwest Territories, Nunavut, Newfoundland/Labrador, Nova Scotia, Ontario, Saskatchewan, Yukon • Czech Republic • El Salvador • Finland

50. Foreign Reciprocating Countries (cont’d) • Hungary • Ireland • Israel • Netherlands • Norway • Poland • Portugal • Slovak Republic • Switzerland • The United Kingdom of Great Britain and Northern Ireland