Effect, Registration, and Enforcement of Child Support Orders

• Date: 27 July 2022
• Author: Julien D. Payne,Marilyn A. Payne

498

 

Eect, 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 15 of the Divorce Act, 1968, section 20 of the Divorce Act provides only for the registra-

tion and enforcement of orders1 in “any court in a province” and this phrase does not include

the Federal Court.2

For the purposes of section 20 of the Divorce Act, section 20(1) expressly provides that

“court” bears the same meaning as that assigned by section 2(1) of the Act. Pursuant to the

denition of “court” in section 2(1), the Lieutenant Governor in Council of a province may

designate a Unied Family Court that is presided over by federally appointed judges as a court

of competent jurisdiction for all purposes of the Divorce Act. Section 20(1) goes be yond the

provisions of section 2(1), however, by also empowering the Lieutenant Governor in Coun-

cil of a province to designate some other court as a court of competent jurisdiction for the

purposes of section 20 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 20(3)(a) of the

Divorce Act.3 e joint operation of sections 20(1) and 20(3) appears to remove any doubt

that might otherwise exist concerning the permissibility of extra-provincial enforcement pro-

ceedings being brought before provincially appointed judges in respect of support or p arent-

ing orders under the Divorce Act. It is submitted that the power to enforce corollary orders

 As to interjurisdictional support orders, see Divorce Act, ss –. and see also ss  to . whereby the

provisions of the Hague Convention on the International Recovery of Child Support and Other Forms of

Family Maintenance have the force of law in Canada insofar as they relate to subjects that fall within the

legislative competence of Parliament. And see Canada, Department of Justice, Legislative Background :

An act to amend the Divorce Act, the Family Orders and Agreements Enforcement Act and the Garnish-

ment Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill

C-78, now SC 2019, c 16) ( January ), online: www.justice.gc.ca/eng/rp-pr/-lf/famil/c/.html.

 Young v Hubbert (),  RFL (d)  (FCTD).

 See Re LeBlanc (),  NSR (d)  (TD).

Effect, Registration , and Enforcement of Child SupportOrders 499

granted on or after divorce may be exercised by provincially appointed judges and that the

exercise of such jurisdiction does not contravene section 96 of the Constitution Act, 1867.

Indeed, the enforcement of support and parenting 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 sought. A search for the enforcement

practices existing in the provinces and territories prior to 1867 is likely to prove elusive, even

in the few provinces that had enacted divorce legislation prior to that date. In Quebec and

Newfoundland, judicial divorce was unknown until 1968 and the same appears to be true

in Alberta, British Columbia, the Northwest Territories, Ontario, and Yukon, prior to 1867.4

B. NATIONAL EFFECT OF COROLLARY ORDERS

Section 20(2) of the Divorce Act provides that any corollary order, other than a provisional

order under section 18(2), has legal eect throughout Canada. National eect is extended to

provincial divorce judgments, as distinct from any corollary orders therein, by the express

provisions of section 13 of the Divorce Act.5

C. ENFORCEMENT AND VARIATION DISTINGUISHED

e powers conferred by section 20(3) of the Divorce Act are expressly conned to the enforce-

ment of corollary orders and do not include any jurisdiction to vary, rescind, or suspend

such orders.6 e jurisdiction to vary, rescind, or suspend orders for support or parenting is

expressly conned by the provisions of the Divorce Act to courts that satisfy the denition of

“court” found in section 2(1).7 us, in Knott v Jacob,8 wherein child support had been granted

in divorce proceedings in accordance with a pre-existing order of the Provincial Court (Family

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 Division).9

On an application by the Saskatchewan Director of Maintenance Enforcement to enforce

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 opportunity to

be heard on the matter.10 In Smith v Smith,11 the mother had been ordered to pay support for

three children pursuant to the Divorce Act and the Federal Child Support Guidelines. e

 See, generally, Christine Davies, Family Law in Canada (Toronto: Carswell, ) at –.

 See Julien D Payne, Payne on Divorce, th ed (Scarborough, ON: C arswell, ) c VI, Divorce

Judgments, Part , National Eect of Divorce and Corollary Orders.

 See Ontario (Director of Support & Custody Enforcement) v Sarseld (),  RFL (d)  (Ont Fam

Ct); see also British Columbia (Public Trustee) v Price (),  RFL (d)  (BCSC), rev’d (),

RFL (d)  (BCCA); Manzoni v Manzoni (),  Nd & PEIR  (Nd TD).

 See British Columbia (Director of Maintenance Enforcement) v Fults (),  RFL (d)  (BCSC).

 (),  RFL (d)  (Ont Fam Ct).

 See also Lake v Lake (),  RFL (d)  (NSCA).

 Saskatchewan (Director of Maintenance Enforcement) v Gerbrandt, [] SJ No  (CA).

  SKCA .

500      , 

order provided that the support would continue “for so long as the said children remain chil-

dren within the meaning of the Divorce Act or until further order of this Court.” e order

was registered under e Enforcement of Maintenance Orders Act, 1997.12 e Director of

Maintenance Enforcement instituted default proceedings against the mother seeking arrears

that had accrued with respect to the two older children after they attained the provincial age

of majority. Within the connes of the maintenance enforcement 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 eighteen. She argued that her support

obligation was extinguished 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 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 specic issues . e 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 majority. Looking to the judgments of the Supreme Court of

Canada in Jackson v Jackson13 and Ruttan v Ruttan,14 the Saskatchewan Court of Appeal held

that a child does not cease to be a “child of the marriage” within the meaning of section 2(1)

of the Divorce Act only by reason of the fact that he or she has attained the provincial age of

majority. Whether a child satises the statutory denition is not a question of age but one of

continued nancial dependence on the parents. Consequently, a child support order does

not “self-destruct” when a child attains the provincial age of majority, although a variation

application under section 17 of the Divorce Act confers jurisdiction on the court to determine

the issue.15 In response to the mother’s argument that it was unfair to require payors to shoul-

der 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 establishing the continued dependence of the child would fall on

the parent asserting that the child was “unable to withdraw from parental charge” within

the meaning of the statutory denition of “child of the marriage” under section 2(1) of the

Divorce Act. e Saskatchewan Court of Appeal then turned to the second issue, namely, the

mother’s correlative argument that a court has jurisdiction in enforcement proceedings to

review a child’s status under the Divorce Act and, if appropriate, terminate a support order

 SS , c E-..

 [] SCR .

 []  SCR . And see Keith B Farquhar, “e Variation, Enforcement and Interpretation of Main-

tenance Orders in Canada — Some New Aspects of an Old Dilemma” ()  Canadian Bar Review

; and Keith B Farquhar, “Variation and Enforcement of Maintenance Orders: Ruttan Revisited”

()  Canadian Bar Review .

 See Ethier v Skrudland,  SKCA ; compare Haavisto v Haavisto,  SKQB , DEW McIntyre

J (variation proceeding).