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

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 ph rase does not

include the Feder al 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 purposes 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 that 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 after 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 which enforcement is

 Young v. Hubbert (),  R.F.L. (d)  (F.C.T.D.).

 See Re LeBlanc (),  N.S.R. (d)  (T.D.).

462CHILD SUPPORT GUIDELINES IN CANADA, 2017

sought. A search for the enforcement practices existing in 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 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 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 proceedings 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 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 Maintenance Enforcement to en-

force a child support order, the presiding judge has no jurisdiction to provide a pragmatic

response to practical problems by granting a variation order, where no application for such

relief has been brought and the parent in receipt of child support has been denied the 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 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 Director of Maintenance Enforcement instituted default proceedings 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 tOrders 463

mother seeking arrears that had accrued with respect to the two older children after they

attained the provincial age of majority. Within the conf‌ines of the maintenance enforce-

ment proceeding, the mother sought a judicial determination that the two older children

had ceased to be “children within the 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 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 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 with 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 meaning of section () of the Divorce Act only by reason of the fact that

he or she has attained the provincial age of majority. 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 attains the pro-

vincial age of majority, although a variation application under section  of the Divorce Act

confers jurisdiction on the court to determine 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 than proof that the child’s plans after turning eighteen were

not made known to the paying parent. ereafter, the evidentiary burden of establishing

the continued dependence of the child would fall on the parent asserting 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 mechanisms, such as those contained in e Enforcement of

Maintenance Orders Act, , can be invoked to enforce support orders granted in divorce

[] 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: Ruttan 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. .