Effect, registration and enforcement of child support orders

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 417-444



   

EFFECT, REGISTRATION AND

ENFORCEMENT OF CHILD

SUPPORT ORDERS

A. DEFINITION OF “COURT”

Although corollary orders could be registered and enforced in theFederal Court pursuant

to section  of the Divorce Act,,sectionoftheDivorce Act provides on ly for the

registrationandenforcementofordersin“anycourtinaprovince”andthisphrasedoesnot

include the Federal C ourt.

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

“court”bearsthesamemeaningasthatassignedbysection()oftheAct.Pursuanttothe

def‌inition of “cour t” in sect ion (), the Lieutenant Governor in C ouncil of a provi nce may

designateaUnif‌iedFamilyCourtthatispresidedoverbyfederallyappointedjudgesasa

court of competent ju risdic tion for all pur poses of the Divorce Act.Section()goesbe-

yondtheprovisionsofsection(),however,byalsoempoweringtheLieutenantGovernorin

Council of a prov ince to designate some other cour t as a court of competent juri sdiction for

the purposes of section  of the Divorce Act.ALieutenantGovernorinCouncilmaydesig-

nate a court preside d over by provincially appoi nted judges to exercise enforcement powers

in respect of any corollary order registered in that courtpursuant to section()(a) of the

Divorce Act.e joint operation of sec tions () and () appears to remove any doubt

that might ot herwise e xist concern ing the per missibil ity of ext ra-provincia l enforcement

proceedin gs being brought before provinci ally-appointed judges in respe ct of support, cus-

tody, or access orders under the Divorce Act.Itissubmittedthatthepowertoenforcecorol-

lary orders g ranted on or af ter divorce may be exerc ised by provincially appoi nted judges

and that the exercise of such jurisdiction does notcontravene section  of the Constitution

Act, . Indeed, the enforcement of support , custody, and acces s orders has increa singly

becomeafunctionofcourtspresidedoverbyprovinciallyappointedjudges,atleastwhere

theorderwasmadeinthesameprovinceasthatinwhichenforcementissought.Asearch

for the enforcement pract ices existing in the prov inces and territories prior t o i s likely

to prove elusive, even in t he few provinces that had enacte d divorce legislation prior to th at

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

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

 CHILD SUPPORT GU IDELINES IN CANADA, 

date. In Quebec a nd Newfoundland, judici al divorce was unk nown until  and the same

appearsto be true in Alberta, British Columbia,the NorthwestTerritories, Ontario, andt he

Yukon,priorto.



B. NATIONAL EFFECT OF COROLLARY ORDERS

Section () of the Divorce Act provides t hat any corollar y order, other tha n a provisional

orderunder section (),has legal ef‌fect throughout Canada.National ef‌fect is extended to

provincia l divorce judgments, a s disti nct from any corol lary orders t herein, by the expre ss

provisions of se ction  of the Divorce Act.

C. ENFORCEMENT AND VARIATION DISTINGUISHED

e powers conferred by sec tion () of the Divorce Act are expressly con f‌ined to the en-

forcement of corollary orders and do not include any jurisdiction to vary, rescind, or sus-

pend such orders.e jurisdiction to vary, rescind, or suspend orders for support, custody

or access is expre ssly conf‌ined by the provision s of the Divorce Act to courts that satisfy the

def‌initionof“court”foundinsection().

us, in Knott v. Jacob,wherein child support

had been granted in divorce proceedings in accordance with a pre-existing order of the

Provincia l Court (Family Div ision), now the Ontario Court of Ju stice, James J. held that the

Supreme Court of Ontario, now the Onta rio Superior Cou rt of Justice , has no juri sdiction

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

(Family Division).

On an application by the Sa skatchewan Di rector of Mai ntenance En forcement to en-

force a child suppor t order, the presiding judge has no ju risdic tion to provide a pragm atic

response to prac tical problems by grantin g a variation order, where no application for such

relief has been broug ht and the parent in rec eipt of child support has been den ied the op-

portun ity to be hea rd on the matter.In Smith v. Smith, the mother had be en ordered to

pay support for three children pursuant to the Divorce Act and the Federal Child Support

Guidelines. e order provided t hat the support would cont inue “for so long as t he said

children remain children within the meaning of the Divorce Act or until further order of

thisCourt.”eorderwasregisteredundere Enforc ement of Maintenance Orders Act,

. e Director of Ma intenance Enforcement in stituted default proce edings again st the

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 jud icial determ ination that t he two older child ren

 See, generally,Christine Davies, Family Law in Can ada (Toronto:Carswell,)at–.

 SeeJulienD.Payne,Payne on Divorce,thed.(Scarborough, ON:Carswell,)c.VI,DivorceJudg-

ments, part , Nationa l Ef‌fect of Divorce and Corollar y Orders.

 See Director of Support & Custody Enforceme nt v. Sarsf‌ield (),R.F.L.(d)(Ont.Fam.Ct.);see

also British Columbia (Pu blic 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 (Director of Maintenance Enforcement) v. Fults (),R.F.L.(d)(B.C.S.C.).

 (),R.F.L.(d)(Ont.Fam.Ct.).

 Se e als o Lake v. Lake(),R.F.L.(d)(N.S.C.A.).

 Saskat chewan (Director of Maintenance Enforcement) v. Gerbrandt,[]S.J.No.(C.A.).

  SKCA , []S .J. No. .

 S.S. , c. E-..