Effect, Registration, and Enforcement of Child Support Orders
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 451-482 |
EFFECt, REgistRAtion, And
EnFoRCEmEnt oF Child suPPoRt
oRdERs
A. dEFinition oF “CouRt ”
Although corollary orders could be regi stered and enforced in the Federal Court pursua nt
to section of the Divorce Act, , section of the Divorce Act provides only for t he
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 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 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 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 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 exist concerning the permissibi lity of extra-provincial enforcement
proceedings being brought before provincially appointed judges in respec t 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 Constitut ion
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
Young v. Hubbert (), R.F.L. (d) (F.C.T.D.).
See Re LeBlanc (), N.S.R. (d) (T.D.).
CHILD SU PPORT GUIDELINES IN CA NADA,
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 the
Yukon, prior to .
b. nAtionAl EFFECt oF CoRollARy oRdERs
Section () of the Divorce Act provides that a ny corollary order, other than a provis ional
order under section (), has legal effect throughout Canada. Nationa l effect is extended to
provincial divorce judgments, as disti nct 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 juri sdiction 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 Maintenance Enforcement to en-
force a child suppor t order, the presiding judge h as no jurisd iction to provide a pr agmatic
response to practical problems by granti ng a variation 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 meaning of t he Divorce Act or until further order of
this Court.” e order was registered under e Enforcement of Maintenanc e Orders Act,
. e Director of Maintenance Enforcement instituted default proceedings a gainst the
mother seeking arrears th at had accrued with respect to the two older children af ter they
attained the provincia l age of majority. Within the confines of the maintenance enforce-
See, generally, Christ ine Davies, Family Law in Canada (Toronto: Carswel l, ) at –.
See Julien D. Payne, Payne on Divorce, th ed. (Scarborou gh, ON: Carswell, ) c. VI, Divorce Judg-
ments, Part , Nation al Effect of Divorce and Corolla ry Orders.
See Director of Support & Cust ody Enforcement v. Sarsfield (), 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.); Manzoni v. Manzoni (), Nfld. & P.E.I.R. (Nfld. T.D.).
See British Columbia (Direc tor of Maintenance Enforcement) v. Fults (), R.F.L. (d) (B.C.S.C.).
(), R.F.L. (d) (Ont. Fam. Ct.).
See also Lake v. Lake (), R.F.L. (d) (N.S.C.A.).
Saskatchewan (Director of Maintenance Enforcement) v. Gerbrandt, [] S.J. No. (C.A.).
SKCA .
S. S. , c. E-..
Effect, Re gistration, and Enforcem ent of Child Support Orders
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 tur ned eight-
een. 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, st ating that he had
the power to determine disputes between the pa rents, 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 re-
quest 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 fi rst was whether a child support order under the Divorce Act
terminates by operation of law upon the child’s attain ment of the provincial age of major-
ity. Looking to the judgments of the Supreme Court of Canada in Jack son v. Jackson and
Ruttan v. Rutt an, the Saskatchewan Court of Appeal held th at a child does not cease to
be a “child of the marriage” within t he meaning of section () of the Divorce Act only by
reason of the fact that he or she has attained t he provincial age of majority. Whether a
child satisfies the statutor y 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 t he provincial 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 argument that it was unfai r to require payors to shoulder the bu-
rden of applying for variation, the Saskatchewan Court of Appea l stated that this was not
an onerous exercise because it would often require nothi ng more than proof that the child’s
plans after tu rning eighteen were not made known to the paying parent. ereaf ter, the
evidentiary burden of establi shing the continued dependence of the child would fall on the
parent asserting that the ch ild was “unable to withdraw from parental cha rge” within the
meaning of the statutory defi nition of “child of the marriage” under section () of the Di-
vorce Act. e Saskatchewan C ourt of Appeal then turned to the second issue; namely, the
mother’s correlative argument that a court has jurisdict ion in enforcement proceedings to
review a child’s status under the Divorce Act and, if appropriate, terminate a support order
and rescind arrears. Referring to sec tions (), (), and () of the Divorce Act and to Rut-
tan v. Ruttan, discussed ab ove, and its own previous judgment in Alberding v. Alberding,
the Saskatchewan Court of Appeal concluded that, wh ile provincial enforcement mechan-
isms, such as those contained in e Enforcement of Maintenance Orders Act, , can be
invoked to enforce support orders granted in divorce proceedings, a judge acting under
the authority of provincial legislation ca nnot encroach upon substantive matters governed
[] S.C.R. .
[] S.C.R. . And see Keith B. Fa rquhar, “e Variation, Enforcement and Inter pretation of Main-
tenance Orders in Ca nada: Some New Aspects of a n Old Dilemma” () Can. Bar Rev. ; and Keith
B. Farquhar, “Variat ion and Enforcement of Maintenance Order s: Ruttan Revisited ” () Can. Bar
Rev. .
See Ethier v. Skrudlan d, SKCA ; compare Haavisto v. Haavisto, SKQB , D.E.W. McIntyre
J. (variation proceed ing).
(), Sask. R. .
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