Effect, registration, and enforcement of child support orders

AuthorJulien D. Payne; Marilyn A. Payne
Although corollary orders could be regi stered and enforced in the Federal Court pursuant
to section  of the Divorce Act, , section  of the Divorce Act provides only for the
registration and enforcement of order s in “any court in a province” and this ph rase does
not include the Federal Court.
For the purposes of section  of the Divorce Act, section () expressl y provides that
“court” bears the same meani ng as that assigned by sect ion () of the Act. Pursuant to the
def‌inition of “court” in section (), the Lieutenant Governor in Council of a province may
designate a Unif‌ied Family Cou rt that is presided over by federally appointed judges as a
court of competent jurisdiction for all pu rposes of the Divorce Act. Section () goes beyond
the provisions of section (), however, by also empowering the Lieutenant Governor in
Council of a province to designate some other court as a cou rt of competent jurisdiction for
the purposes of section  of the Divorce Act. A Lieutenant Governor in Council may desig-
nate a court presided over by provincially appointed judges to exercise enforcement powers
in respect of any corollary order regist ered in that court purs uant to section ()(a) of the
As to interjur isdictional support ord ers, see ss – of Canada, Bill C-, now SC , c  and see also
ss  to . whereby the provision s of the Hague Convention on the Inte rnational Recovery of Ch ild Sup-
port and Other Form s of Family Maintenance,  November  (entered into force  Ja nuary ), have
the force of law in Canada i n so far as they relate to subjec ts that fall with in the legislative compete nce
of Parliament. A nd see John-Paul E Boyd, “A Brief Overview of Bil l C-, An Act to Amend the Divorce
Act and Related Legi slation” (June ), Canadian Research In stitute for Law and the Family at Part 
Amendments Relatin g to Interjurisdict ional Agreements and Treaties, on line: https://prism.ucalgary.ca/
bitstream/ha ndle///Bill_C_Overview_Pa rt_II _-_Jun_.pd f?sequence=&isAl lowed=y.
For more detailed an alysis, see Canada, D epartment of Justice, Leg islative Background : An act to amend
the Divorce Act, the Family Ord ers and Agreements Enforcem ent Act and the Garnishment Att achment
and Pension Diversio n Act and to make consequenti al amendments to another Act (B ill C-, now SC ,
c ) ( January ), online: ww w.j ust ice .gc .ca /eng /rp -pr/f‌l -lf/ fam il /c/ .ht ml .
Young v Hubbert (),  RFL (d)  (FCTD).
Effect, Registration, and Enforcement of Chil d SupportOrders 469
Divorce Act. e joint operation of sections () and () appears to remove any doubt
that might otherwise exist concerning the permi ssibility of extra-provincia l enforcement
proceedings being brought before provincially-appointed judges in respect of support, cus-
tody, or access orders under the Divorce Act. It is submitted that the power to enforce corol-
lary orders granted on or af ter divorce may be exercised by provincially appointed judges
and that the exercise of such jurisdict ion does not contravene section  of the Constit ution
Act,  . Indeed, the enforcement of support, custody, and access orders has increasingly
become a function of courts presided over by provincial ly appointed judges, at least where
the order was made in the same province as that in wh ich enforcement is sought. A search
for the enforcement practices existing in the provinces a nd territories prior to  is likely
to prove elusive, even in the few provinces that had enacted divorce legislation prior to that
date. In Quebec and Newfoundland, judicia l divorce was unknown until  and the same
appears to be true in Alber ta, British Columbia, the Northwest Territories, Ontario, and
Yukon, prior to .
Section () of the Divorce Act provides th at any corollar y order, other th an a provisiona l
order under section (), has legal ef‌fect th roughout Canada. National ef‌fect is extended to
provincial divorce judgments, as distinct from any corollary orders therein, by the express
provisions of s ection  of the Divorce Act.
e powers conferred by section () of the Divorce Act are expressly conf‌ined to the
enforcement of corollary orders and do not include any jurisdiction to vary, rescind, or sus-
pend such orders. e jurisd iction to vary, rescind, or suspend orders for support, custody,
or access is expressly conf‌ined by the provisions of the Divorce Act to courts that satisf y the
def‌inition of “court” found in section (). us, in Knott v Jacob, wherein child support
had been granted in divorce proceeding s in accordance with a pre-existing order of the
Provincial Court (Fam ily Division), now the Ontario Cour t of Justice, James J held that the
Supreme Court of Ontario, now the Ontario Superior Court of Justice, has no jur isdiction
to direct that any motion to var y the order shall be adjudicated by the Provincial Cour t
(Family D ivision).
On an application by the Saskatchewan Director of Maintena nce Enforcement to enforce
a child suppor t order, the presiding judge has no ju risdiction to provide a pragmatic response
to practica l problems by gra nting a va riation order, where no applicat ion for such rel ief ha s
 See Re LeBlanc (),  NSR (d)  (TD).
See, generally, Christ ine Davies, Family Law in Canada (Toronto: Carswel l, ) at –.
See Julien D Payne, Payne on Divorce, th ed (Sc arborough, ON: Carswell, ) c VI, Divorc e Judgments,
Part , Nationa l Ef‌fect of Divorce and Corollar y Orders.
 See Ontario (Di rector of Support & Custody Enforce ment) v Sarsf‌ield (),  RFL (d)  (Ont Fam Ct);
see also Brit ish Columbia (Public Trustee) v Pri ce (),  RFL (d)  (BCSC), rev’ d (), RFL (d)
 (BCCA); Manzoni v Manzoni (),  Nf‌ld & PEIR  (Nf‌ld TD).
 See British Columbi a (Director of Maintenance Enf orcement) v Fults (),  RFL (d)  (BCSC).
(),  RFL (d)  (Ont Fam Ct).
See also Lake v Lake (),  RFL (d)  (NSCA).
been brought and the parent in receipt of child support has been denied the opport unity to
be heard on the matter. In Smith v Smith, the mother had been ordered to pay support for
three children pursua nt to the Divorce Act and the Federal Child Support Guidelines. e
order provided that the support would continue “for so long as the said children remai n
children within t he meaning of the Divorce Act or until furt her order of this Court.” e
order was registered under e Enforcement of Maintenan ce Orders Act, . e Direc-
tor of Maintenance Enforcement instituted default proceedings against the mother seek-
ing arrears that had accrued wit h respect to the two older children af ter they attai ned the
provincial age of majority. Within the conf‌ines of the ma intenance enforcement proceed-
ing, the mother sought a judicial determi nation that the two older children had ceased to
be “children within the mean ing of the Divorce Act” when they tu rned eighteen. She argued
that her support obligation was extingu ished by operation of law when each child attained
the provincial age of majority, and that the onus thereafter fell on the father to apply for
any continued support with respect to the chi ldren’s ongoing education. She also chal-
lenged the Director’s action in taking steps to en force arrears, stating that he had the power
to determine disputes between the parents, the statutory discret ion to suspend or refuse
to enforce arrears, and the right to apply for a variation of the order on his own in itiative.
e chambers judge held that he had no jurisdiction to deal with the mother’s request for
declaratory relief and the remission of arrea rs in enforcement proceedings in the absence
of an agreement between the parents or a variation application brought pursuant to the
Divorce Act. On the mother’s appeal, the Saskatchewan Cou rt of Appeal addressed three
specif‌ic issues. e f‌irst was whet her a child support order under the Divorce Act terminates
by operation of law upon the child’s attainment of the provincial age of majority. Looking to
the judgments of the Supreme Court of Canada in Jacks on v Jackson and Ruttan v Ru ttan,
the Saskatchewan Court of Appeal held that a ch ild does not cease to be a “child of the mar-
riage” within the mean ing of section () of the Divorce Act only by reason of the fact that
he or she has attained the provincia l age of majority. Whether a child satisf‌ies t he statutory
def‌inition is not a question of age but one of continued f‌inancial dependence on the parents.
Consequently, a child support order does not “self-destruct” when a child attain s the prov-
incial age of majority, although a variation application under section  of the Divorce Act
confers jurisdiction on the court to deter mine the issue. In response to the mother’s argu-
ment that it was unfair to requ ire payors to shoulder the burden of applying for variation,
the Saskatchewan Court of Appeal st ated that this was not an onerous exercise becaus e it
would often require nothing more tha n proof that the child’s plans af ter turning eighteen
were not made known to the paying parent. ereafter, the evidentiary bu rden of estab-
lishing the continued dependence of the child would fa ll on the parent asserting t hat the
 Saskatchewan (Director of Maint enance Enforcement) v Gerbrandt, [] SJ No  (CA).
  SKCA .
 SS , c E-..
 [] SCR .
 []  SCR . And see Keith B Farquhar, “e Variat ion, Enforcement and Interpretation of
Maintenance Order s in Canada — Some New Aspect s of an Old Dilemma” ()  Canadian Bar
Review ; and Keith B Fa rquhar, “Variation and Enforcement of Mai ntenance Orders: Ruttan Rev isited”
()  Canadian Bar Review .
 See Ethier v Skrud land,  SKCA ; compare Haavisto v Haavisto,  SKQB , DEW McIntyre J
(variation proceed ing).

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