U. Interjurisdictional Support Orders

Author:Julien D. Payne - Marilyn A. Payne
Pages:522-534
 
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Page 522

See note 305

The Divorce Act provides two methods to vary a child support order when the parents do not reside in the same province. One method is the granting of a final variation order pursuant to sections 5 and 17 of the Divorce Act. Section 5(1) of the Divorce Act provides that a court has jurisdiction to determine a variation proceeding if (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court. Section 17 defines the substantive criteria that govern applications to vary support, whether spousal or child support, and specifically requires proof of a material change of circumstances since the granting of the order which is sought to be varied. Pursuant to section 17.1 of the Divorce Act, where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction under section 5 of the Divorce Act may make a variation order on the basis of the submissions of the

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former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both spouses consent thereto. The second method of variation is by way of bipartite provisional and confirmation orders under sections 18 and 19 of the Divorce Act. A provisional order under section 18(2) of the Divorce Act will be granted if the respondent has not accepted the jurisdiction of the court or both former spouses have not consented to the application of section 17.1 of the Divorce Act in respect of the matter, and the court is satisfied that the issues can be adequately determined by proceeding by way of provisional and confirmation orders under sections 18 and 19 of the Divorce Act. In Fleckenstein v. Hutchison,306 the divorced mother of four children, who was ordinarily resident in Alberta, brought a motion under section 17 of the Divorce Act to vary an order for child support against the father who was ordinarily resident in Nova Scotia. After being served with the motion, the father instructed counsel in Alberta to protest the jurisdiction of the Alberta Court of Queen’s Bench. Counsel sent a letter to the Edmonton Family Law Information Centre stating that the father did not accept the jurisdiction of the Alberta court and suggesting that the matter be heard by the Supreme Court of Nova Scotia. The chambers judge in Alberta held that the father had attorned to the court’s jurisdiction by filing materials, including financial information, and by arguing the merits of the case. The father appealed, arguing that the chambers judge erred (1) by concluding that the father had attorned to the jurisdiction, and (2) by granting a final variation order instead of a provisional order. The Alberta Court of Appeal held that the letter sent by the father’s counsel went beyond a denial of jurisdiction; it also addressed the merits of the motion and thereby amounted to attornment to the jurisdiction of the Alberta Court of Queen’s Bench. However, the appellate court upheld the father’s submission that the chambers judge erred in law by granting a final variation order on the basis that the requirements of section 5(1) of the Divorce Act had been satisfied. The chambers judge held that section 18(2)(b) of the Divorce Act did not apply because the father had accepted the Alberta court’s jurisdiction and, in so doing, he failed to properly consider and apply section 18(2) of the Divorce Act. While the father’s attornment to the jurisdiction did not prevent a final order in light of section 18(2) (a) of the Divorce Act, there was nothing to suggest that the father consented to the matter proceeding by affidavit under section 17.1 of the Divorce Act. Consequently, the chambers judge should have considered whether, pursuant to section 18(2)(b), the issues could be adequately determined by proceeding by means of the bipartite process of provisional and confirmation orders. Although the chambers judge did not directly address this issue, he stated that it was still open to the father to apply to the Alberta courts to vary the order if he wished to adduce evidence regarding his income. Looking to this statement, the Alberta Court of Appeal drew the strong inference that, had the chambers judge addressed section 18(2)(b), he would have been satisfied that the issues could best be dealt with by a provisional order. As the Alberta Court of Appeal observes:307 "The process of permitting an out-of-province payor to put his or her financial circumstances before the courts is exactly what the provisional order process set out in section 19 is designed for." In the result, being of the opinion that the chambers judge had properly found a material change of circumstances within the meaning of section 17(4) of the Divorce Act, the Alberta Court of Appeal allowed the father’s appeal to the extent of making the order of the chambers judge a provisional

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order that would be subject to the confirmation process under section 19 of the Divorce Act before it became final.

A provisional order under section 18(2) of the Divorce Act can only be granted if

(i) the respondent is ordinarily resident in another province;

(ii) the respondent has not accepted the jurisdiction of the court;

(iii) both former spouses have not consented to the application of section 17.1 of the Divorce Act in respect of the matter; and

(iv) the court is satisfied that the issues can be adequately determined by proceeding by way of provisional and confirmation orders under sections 18 and 19 of the Divorce Act.

All four conditions must be met. If a presiding judge at a confirmation hearing finds that several of these conditions have not been addressed before the provisional order was made, he or she should decline to confirm that order.308

A court has jurisdiction to hear an application for variation of a support order under section 5(1)(a) of the Divorce Act if either former spouse is ordinarily resident in the province at the commencement of the proceeding. Where the petitioner meets that requirement, the variation proceeding is to be determined in accordance with section 17 of the Divorce Act and will result in a final order. Section 18 of the Divorce Act only applies where the respondent is ordinarily resident in another province; it has no application where the respondent is ordinarily resident in another country.309A court has jurisdiction under section 17 of the Divorce Act to vary an extra-provincial order for child support only after the parties have been divorced. An extra-provincial interim order for child support is not subject to the bifurcated process of provisional and confirmation hearings even when the spouses ordinarily reside in different provinces.310Where variation of a support order is sought under the Divorce Act and the respondent is ordinarily resident in another province and has not accepted the jurisdiction of the court to which the application has been made, the court may conclude that the issues can be adequately determined by a provisional order under section 18 of the Divorce Act that is subject to extra-provincial confirmation under section 19 of the Divorce Act.311Pending such confirmation, the provisional order has no legal effect, but when it is confirmed, it has legal

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effect in accordance with the terms of the confirmation order.312An application to confirm a provisional variation order is governed by the interpretation of the Divorce Act prevailing in the jurisdiction wherein the confirmation is sought.313Pursuant to section 17(11) of the Divorce Act, where a court makes a variation order in respect of a support order made by another court, a copy of the variation order, certified by a judge or officer of the court, must be sent to that court.

An applicant who seeks a provisional order has the burden of satisfying the court that the issues can be adequately determined by the bipartite process of provisional and confirmation orders.314The complexity of the issues and the necessity of cross-examination may render it inappropriate for a court to determine a variation application by means of the bipartite process of provisional and confirmation orders, although the likelihood of contradictory evidence being given in the two different jurisdictions does not, of itself, militate against use of the bipartite process.315

The statutory jurisdiction to grant a provisional order is not confined to ex parte proceedings and may be exercised with or without notice to the respondent. In Martell v. Height,316Halvorson J. observed:

Notwithstanding personal service of this motion on the respondent in Nova Scotia, the applicant may only obtain a provisional order in this jurisdiction rather than a final variation. The law in this respect has been clarified by a new ss. 17.1 and 18(2), which came into force on March 25, 1993, as part of Bill C-79. These subsections read:

17.1 Where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules of the court, make a variation order pursuant to subsection 17(1) on the basis of the submissions of the former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both former spouses consent thereto.

18(2) Notwithstanding paragraph 5(1)(a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and

(a) the respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and

(b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19, the court shall make a...

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