Enforcement of Family Law Orders When Parents Live in Different Places: Part 1 - LawNow Magazine

Enforcement of Family Law Orders When Parents Live in Different Places: Part 1

Family Law ColumnGenerally, Alberta court orders are only enforceable in Alberta.  And, generally, Alberta judges can only grant family law orders about people who reside in Alberta.  However, families are mobile and many relocate from province to province or even from country to country.  Therefore, Alberta has entered into agreements with the other Canadian provinces and territories, and with many other countries, to recognize, enforce, and change each other’s family law orders.  Agreements or orders that have effect across political boundaries are usually referred to as “interjurisdictional”.

In Part 1, we will discuss the Interjurisdictional Support Orders Act. In the following Part 2, the Extra-Provincial Enforcement of Custody Orders Act and the Hague Convention will be explored.

The Interjurisdictional Support Orders Act (“ISOA”) applies to situations where one party lives in Alberta, the other party lives in a “reciprocating jurisdiction” and a child support or partner/spousal support order is sought.

The “reciprocating jurisdictions” are provinces, states, or countries that have matching legislation and will follow the same process as in Alberta.  These include all the provinces and territories of Canada, the United States of America, Australia, the United Kingdom, and several others. A list of these regions is set out in a schedule to the accompanying Regulations.

A similar process to vary the child support terms of a Divorce Judgment where parties live in different provinces is set out in sections 18-20.1 of the Divorce Act of Canada. Let’s use an example where a parent, who lives in Alberta, wants to bring an application for child support order against the other parent, who lives in Ontario. To bring an application for a new order or vary an existing support order, the parent who lives in Alberta would bring the application to court in Alberta using the required forms.  (Depending on the rules of the reciprocating jurisdiction, an Alberta judge may make a provisional order, meaning the order is not actually effective until it is confirmed.)  The application (and the provisional order, if one is granted) is then sent to the court in Ontario.  The Ontario court will contact the other parent and let them know an application has been made.  A judge in Ontario will review the application, take evidence from the other parent and will either grant a support order, grant an interim support order, confirm the provisional order granted in Alberta, refuse to grant or confirm the support order, or send it back to Alberta more evidence.

The same process applies, in reverse, for applications that are brought in a reciprocating jurisdiction and forwarded to Alberta for confirmation.

This process allows parties to address support issues without having to agree on a jurisdiction or to travel.  The process can be quite slow and can take several months, or even over a year, to resolve.  If a party wants to deal with a support issue quickly, they have the option to simply agree to bring the application in the other party’s home jurisdiction.  In our example, the parent who wants support could hire a lawyer in Ontario and have them bring the application there.

The Interjurisdictional Support Orders Act (“ISOA”) applies to situations where one party lives in Alberta, the other party lives in a “reciprocating jurisdiction” and a child support or partner/spousal support order is sought. 

A similar process to vary the child support terms of a Divorce Judgment where parties live in different provinces is set out in sections 18-20.1 of the Divorce Act of Canada. In this case, a judge will grant a provisional order in the province where the person applying to change the support order lives.  The provisional order will then be sent to the province where the parent who is responding to the change lives to be confirmed, confirmed with a variation, or refused to be confirmed.

The Alberta Government’s website has detailed instructions on how to make an application under the ISOA.

Alberta will also enforce support orders granted in reciprocating jurisdictions and vice versa.  Extra-provincial or foreign orders can be registered with a clerk of the court and then sent to the Maintenance Enforcement Program.  The enforcement programs of both jurisdictions will cooperate to ensure support is paid.

If one party believes a foreign order should not be enforced in Alberta, they can apply to the court for a determination.  The court may not allow the registration if the judge believes:

  • the other party did not have proper notice or a reasonable opportunity to be heard in the foreign court when the order was made;
  • if the foreign order is contrary to public policy in Alberta; or
  • the foreign court did not have the jurisdiction to grant the order.

In cases where the other party lives in a country that is not a reciprocating jurisdiction, a party who wants to obtain or enforce support order should seek legal advice from a lawyer in that country who will likely have to bring a court application in that country.

Authors:

Sarah Dargatz
Sarah Dargatz
Sarah Dargatz has been practicing family law since 2009. She is currently a partner at Latitude Family Law LLP.
 


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