Effect, registration, and enforcement of child support orders

• Author: Julien D. Payne; Marilyn A. Payne
• Pages: 468-500

468

CHAPTER 12

EFFECT, REGISTRATION, AND

ENFORCEMENT OF CHILD

SUPPORTORDERS

A. DEFINITION OF “COURT”

Although corollary orders could be registered 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 orders in “any court in a province” and this phrase does

not include the Federal Court.

For the purposes of section  of the Divorce Act, section () expressly provides that

“court” bears the same meaning as that assigned by section () of the Act. Pursuant to the

def‌inition of “court” in section (), the Lieutenant Governor in Council of a province may

designate a Unif‌ied Family Court 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/handle///Bill_C_Overview_Part_II_-_Jun_.pdf?sequence=&isAllowed=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: www.justice.gc.ca/eng/rp-pr/f‌l-lf/famil/c/.html.

 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 permissibility of extra-provincial 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 after 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 provincially 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 Alberta, British Columbia, the Northwest Territories, Ontario, and

Yukon, prior to .

B. NATIONAL EFFECT OF COROLLARY ORDERS

Section () of the Divorce Act provides that any corollar y order, other than 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.

C. ENFORCEMENT AND VARIATION DISTINGUISHED

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 proceedings 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 jurisdiction

to direct that any motion to vary the order shall be adjudicated by the Provincial Court

(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 practical problems by granting a variation order, where no application for such relief has

 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).

470CHILD SUPPORT GUIDELINES IN CANADA, 2020

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 pursuant 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 remain

children within the meaning of the Divorce Act or until further order of this Court.” e

order was registered under eEnforcement of Maintenance Orders Act, . e Direc-

tor of Maintenance Enforcement instituted default proceedings against the mother seek-

ing arrears that had accrued with respect to the two older children af ter they attained the

provincial age of majority. Within the conf‌ines of the maintenance enforcement proceed-

ing, the mother sought a judicial determination 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 children’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 discretion to suspend or refuse

to enforce arrears, and the right to apply for a variation of the order on his own initiative.

e chambers judge held that he had no jurisdiction to deal with the mother’s request for

declaratory relief and the remission of arrears 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 Court 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 meaning 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 attains 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 require payors to shoulder the burden of applying for variation,

the Saskatchewan Court of Appeal stated that this was not an onerous exercise because it

would often require nothing more than proof that the child’s plans after turning eighteen

were not made known to the paying parent. ereafter, the evidentiary burden of estab-

lishing the continued dependence of the child would fall on the parent asserting that 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).