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Overview of the Canadian System of Support Enforcement

Canada is a federal State, composed of a number of separate legal units or jurisdictions, each with its own government and power to make laws. These legal units consist of ten provinces and three territories, in addition to a federal government.

The Canadian Constitution divides the power to govern and make laws between the federal and the provincial and territorial governments, including family law matters. Furthermore, the foundation of the law is not the same throughout the country. The province of Quebec has a civil law system. The rest of Canada applies the common law.

Enforcement of support orders
Federal law —Divorce Act
Provincial/territorial law — family support legislation
Provincial/territorial law — interjurisdictional support orders (ISO) legislation and reciprocity arrangements
Hague Conference on Private International Law

Enforcement of support orders

Enforcement of all support orders, regardless of origin, is primarily within the authority of the provinces and territories.

Once an order is recognized or established, each province and territory has a separate maintenance enforcement program that will enforce and collect money owing to a family support recipient. The money collected will be paid to the support recipient whether he or she resides inside or outside of the enforcing province or territory. The support recipient will not require a lawyer in the Canadian jurisdiction as enforcement is done by government funded maintenance enforcement programs.

Although the federal government does not directly enforce support orders, the collection of family support is a priority of the government. A federal office has been established to assist and support the provinces and territories in their enforcement activities by searching for debtor addresses, garnishing designated federal monies such as income tax refunds and denying passports and specified federal licences to certain support payors who are in persistent arrears.

Federal law — Divorce Act

The federal government has legislative power over marriage and divorce. Therefore, a couple seeking a divorce would have their support order dealt with under the federal Divorce Act. Divorce Act orders can only be granted and varied in a Canadian court. International and interjurisdictional support rules do not apply to Divorce Act orders.

Provincial/territorial law —family support legislation

Support matters are also governed by provincial and territorial law. An unmarried party or a person who is married but separated from their spouse, may seek a support order under provincial or territorial law.

Provincial and territorial laws differ in relation to support obligations for spouses or other family members, particularly between unmarried parties. However a child is entitled to support no matter what the marital status of his or her parents.

Orders made under provincial or territorial law continue to be governed by that law if a variation is sought.

Provincial/territorial law — interjurisdictional support orders (ISO) legislation and reciprocity arrangements

Interjurisdictional support orders (ISO) legislation

Each Canadian province and territory has enacted their own interjurisdictional reciprocal enforcement of support legislation. All family support orders made pursuant to provincial and territorial law can be both recognized and enforced under this interjurisdictional legislation. The same is true for support orders from other countries with which the province or territory has a reciprocal arrangement. Foreign jurisdictions are designated as reciprocating jurisdictions in accordance with these laws.

The provinces and territories are in the process of implementing new interjurisdictional support (ISO) legislation. While each province and territory will enact substantially similar legislation, there will be some differences to meet the unique needs of each province or territory. This new model of reciprocal legislation will replace the existing two stage provisional / confirmation procedure with a more streamlined application process to establish or vary a support order. However, the new legislation does provide for the continued use of the provisional/confirmation order process for those reciprocating states that require such orders. A series of situation-specific forms will be completed and sent to the jurisdiction where the respondent resides. The court in the respondent's jurisdiction will conduct a hearing and make the order.

It is anticipated that these changes will improve the timeliness in obtaining family support. As part of the implementation process of these laws across Canada, each province or territory will have a designated authority for the purposes of transmitting and receiving applications.

Reciprocity arrangements

Canada is not a party to any existing multilateral treaty dealing with support. We proceed through a system of bilateral arrangements used for the purpose of enforcing foreign judgements. In the common law provinces and territories, support orders from outside a province or territory will only be enforced if that province or territory has a mutual reciprocal enforcement arrangement with the jurisdiction seeking enforcement. Reciprocity arrangements are negotiated between the provincial or territorial government and a foreign government. The establishment of such reciprocal arrangements depends upon whether the recognition and enforcement laws of the two jurisdictions are substantially similar. Usually, laws will be regarded as similar enough to Canadian provincial or territorial recognition and enforcement laws if they: (a) provide for adequate, no-cost enforcement of established orders; (b) permit persons seeking support, an opportunity to obtain an order against someone in another jurisdiction, when no order previously existed; and (c) allow for variation of an existing order.

All of these differences cause a patchwork of reciprocity arrangements across the country.

Under interjurisdictional support legislation, Canadian provinces and territories are able to recognize and enforce a support order from a foreign reciprocating State. If recognition is not possible, the order will be treated as an application to establish an enforceable support obligation in the Canadian jurisdiction for the benefit of the foreign applicant. If no order exists, the foreign applicant can send an application to establish a support order in the province or territory in which the respondent resides. This process can also be used to vary or modify a support order.

A list of countries with which Canadian provinces and territories have reciprocal support enforcement arrangements is provided below.

Options for establishment and enforcement of support orders available to residents in non-reciprocating states

In the civil law province of Quebec there is an addition to this "reciprocity system". Support creditors may also obtain the recognition of a foreign support order through the application of the rules of private international law contained in the Civil Code of Quebec. If the order is recognized, then they benefit from the free enforcement system in place in Quebec.

Some common-law provinces and territories have limited options to assist in the enforcement of final orders from non-reciprocating States.

There is no available administrative co-operation to establish an order. However the applicant may attorn to a Canadian jurisdiction, by retaining counsel in a province or territory and applying to a court in that province or territory to establish an order.

Interjurisdictional and international enforcement

Provincial and territorial interjurisdictional and international support order (ISO) enforcement laws, forms and contacts:

Countries with which Canadian provinces and territories have reciprocal support enforcement arrangements:

Hague Conference on Private International Law

Maintenance Obligations

The Hague Conference on Private International Law is drafting a new international instrument on maintenance obligations. Canada, a Member State of the Hague Conference, is participating in the negotiations. Drafting of the new instrument began in May 2003 at The Hague with the Special Commission on the International Recovery of Child Support and Other Forms of Family Maintenance. To learn more about this and other projects of the Hague Conference on International Law you can visit The Hague website.