Our Vancouver out of province support orders lawyers are frequently asked about how BC ISOA-Interjurisdictional Support Orders Act cases work: “How can you change or enforce a spousal or child support Order when parents or spouses live in different provinces in Canada or in different countries?”
In the province of British Columbia, the BC Interjurisdictional Support Orders Act, (the “BC ISOA”), is an Act of the Legislature that creates and recognizes reciprocal agreements with all the Canadian provinces and territories, and with several foreign countries pertaining to family support (maintenance) orders and agreements made in BC or in those other jurisdictions.
This means that a Court Order or a written agreement that was ‘made’ in one place is ‘enforceable’ in the other. However, specific procedures must be followed in order for these agreements and Court Orders to be officially recognized by the Courts in British Columbia. The BC Court of Appeal recently clarified these procedures in its recent decision Herriman v. Beresford, 2012 BCCA 437.
The Herriman v. Beresford decision was about an application brought by a resident of Ontario looking to reduce child support arrears owing to his child and the child’s mother, who were living in British Columbia. The father put forth an application through the Ontario Family Responsibility Office – Interjurisdictional Support Orders Unit (the “Ontario ISO Office”). His application was forwarded to the corresponding office in British Columbia who then notified the mother and sent the matter to be reviewed by a Judge of the BC Supreme Court. The Judge dismissed the application due to what he thought was a procedural technicality. The dismissal was then appealed to the BC Court of Appeals.
The Appeals Court noted as follows:
[24] In accordance with the Ontario ISOA, the Ontario ISO Office forwarded Mr. Blais’ support variation application to the BC ISO Office, where it was received on August 17, 2011.
[25] Upon receipt of Mr. Blais’ support variation application, and in accordance with the BC ISOA, the BC ISO Office located Ms. Herriman and sent Mr. Blais’ application to the BC Court.
[26] The BC Court Registry set the variation application down for hearing and served Ms. Herriman with the application and notice of hearing.
[27] Counsel appeared on behalf of Ms. Herriman at the application hearing. Mr. Blais did not appear and no one appeared on his behalf.
[28] The chambers judge dismissed Mr. Blais’ application and awarded costs to Ms. Herriman. Although there are no Reasons for Judgment, it is apparent from the transcript of the proceedings that the chambers judge was of the view that he had no jurisdiction to hear the application in the absence of a provisional order and an appearance by Mr. Blais. Accordingly, he dismissed the application…
The BC Court of Appeal noted that this was a mistake and that it was not necessary for the applicant, the father in Ontario, to obtain a “provisional order” in Ontario before forwarding the matter to BC, and, further, that the BC Court should have immediately reviewed the materials sent to its attention and issue a binding decision. (The requirement for a “provisional order” means that applicants would have to first get a decision from a Court in their own jurisdiction before sending the matter to a Court in the “other” jurisdiction for recognition and enforcement.)
The BC Court of Appeal noted that so far as Canadian “inter-provincial” support and maintenance Orders are concerned:
[10] All of the provinces and territories of Canada are declared to be reciprocating jurisdictions. Reciprocating jurisdictions are those declared by regulation, and having laws for the reciprocal enforcement of support orders made in British Columbia on a basis substantially similar to the BC ISOA.
[15] … a provisional variation order is not required where an applicant in one province of Canada seeks to vary a support order originally made by a court in another province under provincial legislation…
[16] … An applicant need only complete a support variation application in the jurisdiction in which he ordinarily resides and submit that application to the designated authority in his home jurisdiction.
[17] The next step in the process is that the designated authority in the applicant’s jurisdiction reviews the application to ensure it is complete and then sends it to the designated authority in the reciprocating jurisdiction: see, for example, Ontario ISOA, s. 28(2).
[18] When the designated authority in the respondent’s jurisdiction receives a support variation application from the appropriate authority in a reciprocating jurisdiction, it must confirm that the respondent ordinarily resides in the jurisdiction and then send the application to the Court.
[19] The court’s obligations are triggered by the receipt of the application from the BC ISO Office. Those obligations are the same regardless of whether the application includes a provisional variation order. On receipt of the application the British Columbia court must as provided by BC ISOA, s. 32(3):
a) serve the respondent with a copy of the support variation application and notice of the hearing of the application;
b) consider the evidence and documents received from the reciprocating jurisdiction at the hearing;
c) if the Court needs further information to make a determination, adjourn the hearing and direct the BC ISO Office to request further information from the applicant and/or from the appropriate authority in the reciprocating jurisdiction;
d) apply the law of British Columbia or the jurisdiction in which the child ordinarily resides, depending on the child’s entitlement to support; and,
e) if the Court refuses to make a support variation order, record the reasons for its refusal.
Thus, in this case, the BC Court should have reviewed the materials sent by the father in Ontario and ruled on their merits rather than dismiss the application for lack of jurisdiction. The BC Court of Appeals confirmed this as follows:
[29] It is apparent from the record that all steps necessary to confer jurisdiction on the Supreme Court had been taken and, specifically, neither a “provisional order” from Ontario nor an appearance by the applicant were required. Accordingly, the chambers judge ought to have proceeded to deal with the application on its merits in accordance with the requirements of s. 32(3).
The BC Court of Appeals also noted in its decision that this would not have been true if the application had come instead from a foreign country where a provisional order is required. Contrasting the “inter-provincial” system with that of a foreign country, such as England, the BC Court of Appeals commented as follows:
[11] Under the BC ISOA variation applications originating in certain jurisdictions require a “provisional variation order” to be made by a court in the jurisdiction where the applicant is ordinarily resident before the materials are sent to British Columbia. Other jurisdictions do not involve securing a provisional order before materials are sent to British Columbia and an application is made here.
[12] The United Kingdom, for example, requires applicants for support variation orders first to obtain provisional variation orders in their own jurisdiction: see, Mathers v. Bruce, 2005 BCCA 410 at paras. 24-26. In such a case, an applicant brings a court application in the jurisdiction in which they ordinarily reside, without giving notice to the respondent. If the provisional variation order is made, both it and the support variation application are sent to the court in the reciprocating jurisdiction where the respondent ordinarily resides: see, BC ISOA, s. 27.
[13] On receiving the provisional variation order and support variation application, the court in the reciprocating jurisdiction must set the matter down for a hearing, giving the respondent an opportunity to respond to the application, before confirming or denying the provisional variation order: see, BC ISOA ss. 28(2)(b) and 29(4).
[14] A provisional variation order has no effect unless and until it is confirmed by the court in the reciprocating jurisdiction: see BC ISOA s. 1(1) definitions of “provisional variation order”.
Since different procedural rules apply depending on where a Court Order is first made, and where the “other” spouse, parent, or child lives, it is usually a good idea to discuss your particular situation with a lawyer experienced in inter-jurisdictional maintenance (child support and/or spousal support) issues. Please contact us now and we will be happy to help you with answers to your questions about how to change or enforce child or spousal support in different provinces or countries. Our experienced family lawyers in Vancouver, Surrey, Kelowna, Fort St John, and Calgary are here to help.
