Effect, registration, and enforcement of child support orders
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 461-492 |
461
CHAPTER 12
EFFECT, REGISTRATION, AND
ENFORCEMENT OF CHILD
SUPPORTORDERS
A. DEFINITION OF “COURT”
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 orders in “any court in a province” and this ph rase does not
include the Feder al 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 be-
yond the provisions of section (), however, by also empowering the Lieutenant Governor
in Council of a province to designate some other court a s a court of competent jurisdiction
for the purposes of section of the Divorce Act. A Lieutenant Governor in Council may
designate a court presided over by provincially appointed judges to exercise enforcement
powers in respect of any corollary order registered in t hat court pursuant to section ()
(a) of the Divorce Act. e joint operation of sections () and () appears to remove any
doubt that might otherwise ex ist concerning the permissibility of extra-provincia l enforce-
ment proceedings being brought before provincially-appointed judges in respect of support,
custody, or access orders under the Divorce Act. It is submitted that the power to enforce
corollary orders granted on or af ter divorce may be exercised by provincially appointed
judges and that the exercise of such jurisdiction does not contravene section of the
Const itution 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
Young v. Hubbert (), R.F.L. (d) (F.C.T.D.).
See Re LeBlanc (), N.S.R. (d) (T.D.).
462 CHILD SUPPORT GUIDELINES IN CANADA, 2017
sought. A search for the enforcement practices existing i n the provinces and 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 Newfoundla nd, judicial divorce was un known
until and the same appears to be true in A lberta, British Columbia, the Northwest Ter-
ritories, Onta rio, and Yukon, prior to .
B. NATIONAL EFFECT OF COROLLARY ORDERS
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.
C. ENFORCEMENT AND VARIATION DISTINGUISHED
e powers conferred by section () of the Divorce Act are expressly confined to the en-
forcement 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 Court 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 en-
force a child suppor t order, the presiding judge has no juri sdiction to provide a pragmat ic
response to prac tical problem s by granting a vari ation order, where no application for such
relief has been brought and the parent in receipt of child support has been denied t he op-
portunity 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 Suppor t
Guidelines. e order provided that the support would continue “for so long as the sa id
children remain chi ldren within the mean ing of the Divorce Act or until further order of
this Court.” e order was registered under e Enforceme nt of Maintenance Orders Act ,
. e Director of Maintenance Enforcement instituted default proceeding s against the
See , generally, Christine Dav ies, Family Law in Canada (Toronto: Carswell, ) at –.
S ee Julien D. Payne, Payne on Divorce, th ed. (Sca rborough, ON: Carswell, ) c. VI, Divorce Judg-
ments, Part , Nation al Effect of Divorce and Corolla ry Orders.
See Ontario (Direct or of Support & Custody Enforcemen t) v. Sarsfiel d (), R.F.L. (d) (Ont. Fam.
Ct.); see also Briti sh Columbia (Public Trustee) v. Price (), R.F.L. (d) (B.C.S.C.), rev’ d (),
R.F.L. (d) (B.C.C.A.); Manz oni v. Manzoni (), Nfld. & P.E.I.R. (Nfld. T.D.).
See British C olumbia (Director of Mainten ance Enforcement) v. Fults (), R.F.L. (d) (B.C.S.C.).
(), R.F.L. (d) (Ont. Fam. Ct.).
See al so Lake v. Lake (), R.F.L. (d) (N.S.C.A.).
Saskatche wan (Director of Maintenance Enforcement) v. Gerbrandt, [] S.J. No. (C.A.).
SKCA .
S.S. , c. E-..
Chapter 12: Effect, Registration, and Enforcement of Child Suppor tOrders 463
mother seeking arrears th at had accrued with respect to the two older children a fter they
attained the provincia l age of majority. Within the confines of the maintenance enforce-
ment proceeding, the mother sought a judicial determi nation that the two older children
had ceased to be “children within t he meaning of the Divorce Act” when they turned eigh-
teen. She argued that her support obligation was exti nguished by operation of law when each
child attained t he 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 challenged the Director’s action in taking steps to enforce 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 w ith the mother’s
request for declaratory relief and the remission of arrears i n enforcement proceedings i n the
absence of an agreement between the parents or a variation application brought pursuant to
the Divorce Act. On the mother’s appeal, the Saskatchewa n 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. Rutta n,
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 provincial age of majorit y. Whether a child satisfies the 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 pro-
vincial 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 because it would
often require nothing more tha n proof that the child’s plans after turning eighteen were
not made known to the paying parent. ereafter, the evidentiar y burden of establishing
the continued dependence of the child would fall on the parent asser ting that the child wa s
“unable to withdraw from parental charge” with in the meaning of the statutory definition of
“child of the marriage” under section () of the Divorce Act. e Saskatchewan Court of Ap-
peal then turned to the second is sue, namely, the mother’s correlative argument that a court
has jurisdict ion in enforcement proceedings to review a ch ild’s status under the Divorce Act
and, if appropriate, terminate a support order and rescind arrears. Referring to se ctions (),
(), and () of the Divorce Act and to Ruttan v. Ruttan, discussed above, and its own previ-
ous judgment in Alberding v. Alberding, the Sa skatchewan Cour t of Appeal concluded that,
while provincial enforcement mechanism s, such as those contained in e Enforcement of
Maintenance Orders Act , , can be invoked to enforce support orders granted in d ivorce
[] S.C.R. .
[] S.C.R. . A nd see Keith B. Farquhar, “e Variation, En forcement and Interpretation of Mai n-
tenance Orders in Ca nada — Some New Aspects of an Old Di lemma” () Can. Ba r Rev. ; and
Keith B. Farquha r, “Variation a nd Enforcement of Maintenance Orders: Rut tan Revisite d” () Can.
Bar Rev. .
See Ethier v. Skrudland , SKCA ; compare Haavisto v. Haavisto, SKQB , D.E.W. McIntyre J.
(variation proceed ing).
(), Sask. R. .
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