[37] Bill 131 Royal Assent (PDF)
Bill 131 2002
An Act to facilitate
the making, recognition
and variation of
interjurisdictional support orders
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CONTENTS |
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PART I |
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1. 2. |
Definitions Designation of court |
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PART II |
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3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. |
Definition Application of Part Claimant in Ontario Support application Submission of application to designated Provisional order Claimant Outside Ontario Application of ss. 9 to 16 Steps taken by designated authority Notice of hearing Information to be considered Parentage Choice of law rules Order Order if notice not complied with Sending order to reciprocating jurisdiction |
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PART III |
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17. 18. 19. 20. 21. |
Application of Part Receipt of order in Ontario Registration Notice of registration Effect of setting aside |
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PART IV |
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22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. |
Definitions Application of Part Variation of registered order Variation in reciprocating jurisdiction Restrictions Applicant in Ontario Support variation application Submission of application to designated Variation if respondent no longer resident in Provisional variation order Applicant Outside Ontario Application of ss. 32 to 38 Steps taken by designated authority Notice of hearing Information to be considered Choice of law rules Order Order if notice not complied with Sending order to reciprocating jurisdiction Variation of Registered Orders Jurisdiction |
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PART V |
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40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. |
Appeals Appointment of designated authority Sending documents Translation Order or application expressed in foreign currency Right of subrogation Terminology Judicial notice of law of reciprocating jurisdiction Proof of appointment Receipt in evidence Spouses as witnesses Other remedies Regulations re reciprocating jurisdictions Other regulations Transition Repeal of Reciprocal Enforcement of Support Amendment, Courts of Justice Act Amendment, Family Responsibility and Support Arrears Enforcement Act, 1996 Commencement Short title |
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Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
PART I
GENERAL
Definitions
1. In this Act,
"appropriate authority", when used in reference to a reciprocating jurisdiction, means the person or persons in that jurisdiction who correspond to the designated authority in Ontario; ("autorité compétente")
"certified", when used to refer to a copy of an order or reasons, means certified by the court that made the order or gave the reasons; ("certifiée conforme")
"child" has the same meaning as in the Family Law Act; ("enfant")
"claimant" means a person who applies under this Act for support; ("requérant")
"clerk" means a person who has the authority of a clerk or registrar of the court; ("greffier")
"delivery agent" means a delivery agent under the Ontario Works Act, 1997; ("agent de prestation des services")
"designated authority" means the person appointed under subsection 41 (1), and includes a person to whom a power or duty is delegated under subsection 41 (2); ("autorité désignée")
"former Act" means the Reciprocal Enforcement of Support Orders Act; ("ancienne loi")
"Ontario court" means a court designated under section 2; ("tribunal de l'Ontario")
"prescribed" means prescribed by the regulations, if any, or by the rules of court; ("prescrit")
"provisional order" means,
(a) a support order of an Ontario court that has no effect until confirmed by a court in a reciprocating jurisdiction, or
(b) a similar order made in a reciprocating jurisdiction and received for confirmation in Ontario; ("ordonnance conditionnelle")
"provisional variation order" means,
(a) an order of an Ontario court that varies a support order and that has no effect until confirmed by a court in a reciprocating jurisdiction, or
(b) a similar order made in a reciprocating jurisdiction and received for confirmation in Ontario; ("ordonnance modificative conditionnelle")
"reciprocating jurisdiction" means a jurisdiction prescribed as such in the regulations made under subsection 52 (1); ("autorité pratiquant la réciprocité")
"regulations" means the regulations made under this Act; ("règlements")
"support" includes maintenance and alimony; ("aliments")
"support order" means an order requiring the payment of support that is made by a court or by an administrative body, and includes the provisions of a written agreement requiring the payment of support if they are enforceable in the jurisdiction in which the agreement was made as if they were contained in an order of a court of that jurisdiction. ("ordonnance alimentaire")
Designation of court
2. The Attorney General may designate a court or courts in Ontario for the purpose of proceedings under this Act.
PART II
NEW ORDERS
Definition
3. In this Part,
"respondent" means the person against whom support is sought.
Application of Part
4. This Part applies only if there is no support order in effect requiring the respondent to pay support for the claimant, for any children or for both.
Claimant in Ontario
Support application
5. (1) A claimant who ordinarily resides in Ontario and believes that the respondent ordinarily resides in a reciprocating jurisdiction may start a proceeding in Ontario that could result in a support order being made in the reciprocating jurisdiction.
Same
(2) To start the proceeding, the claimant shall complete a support application that includes,
(a) the claimant's name and address for service;
(b) a copy of the specific statutory or other legal authority on which the application is based, unless the claimant is relying on the law of the jurisdiction where the respondent ordinarily resides;
(c) particulars of the support claimed;
(d) the affidavit described in subsection (3); and
(e) any other prescribed documents.
Affidavit
(3) The affidavit shall set out,
(a) the respondent's name and any other information known to the claimant that can be used to locate or identify the respondent;
(b) the respondent's financial circumstances, to the extent known by the claimant;
(c) the name of each person for whom support is claimed and the date of birth of any child for whom support is claimed;
(d) the evidence in support of the application that is relevant to establishing entitlement to or the amount of support, including,
(i) if support is claimed for a child, details of the child's parentage and information about his or her financial and other circumstances, and
(ii) if support is claimed for the claimant, information about the claimant's financial and other circumstances and his or her relationship with the respondent; and
(e) any other prescribed information.
No notice to respondent required
(4) The claimant is not required to notify the respondent that a proceeding has been started under this section.
Submission of application to designated authority
6. (1) The claimant shall submit the support application to the designated authority in Ontario.
Duty of designated authority
(2) On receiving a support application, the designated authority shall promptly,
(a) review the application to ensure that it is complete; and
(b) send a copy of the completed application to the appropriate authority in the reciprocating jurisdiction in which the claimant believes the respondent ordinarily resides.
Further information or documents
(3) On receiving a request for further information or documents from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to clause 11 (2) (a), the claimant or the designated authority shall provide the further information or documents, within the time referred to in the request and in accordance with the regulations.
Copy of order and reasons
(4) On receiving a certified copy of an order and reasons, if any, from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to section 16, the designated authority shall provide a copy of the order and reasons, if any, to the claimant, in accordance with the regulations.
Provisional order
7. (1) If the claimant reasonably believes that the respondent ordinarily resides in a reciprocating jurisdiction that requires a provisional order, the Ontario court may, on the claimant's application and without notice to the respondent, make a provisional order taking into account the legal authority on which the claimant's application for support is based.
Evidence
(2) Evidence in an application under subsection (1) may be given orally, in writing or in any other prescribed manner.
Material to be sent to reciprocating jurisdiction
(3) If a provisional order is made, the court shall send it to the designated authority, which shall send to the reciprocating jurisdiction,
(a) three certified copies of the provisional order; and
(b) a support application referred to in subsection 5 (2).
Further evidence
(4) If, in considering whether to confirm a provisional order, a court in a reciprocating jurisdiction sends a matter back for further evidence to the Ontario court that made the provisional order, the Ontario court shall, after giving notice to the claimant, receive further evidence.
Transcript of further evidence,
copies of modified order
(5) If evidence is received under subsection (4), the clerk of the Ontario court shall send to the court in the reciprocating jurisdiction,
(a) a certified transcript of the evidence; and
(b) if the Ontario court considers it appropriate to modify its provisional order, three certified copies of the order as modified.
New provisional order
(6) If a provisional order made under this section comes before a court in a reciprocating jurisdiction and confirmation is denied in respect of one or more persons for whom support is sought, the Ontario court that made the provisional order may, on motion within six months after the denial of confirmation, reopen the matter, receive further evidence and make a new provisional order for a person in respect of whom confirmation was denied.
Claimant Outside Ontario
Application of ss. 9 to 16
8. (1) Sections 9 to 16 apply in respect of,
(a) provisional orders referred to in clause (b) of the definition of "provisional order" in section 1; and
(b) documents from reciprocating jurisdictions corresponding to a support application described in subsection 5 (2).
Meaning of "support application"
(2) In sections 9 to 16, "support application" refers to the orders and documents described in subsection (1).
Steps taken by designated authority
9. If the designated authority receives a support application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent ordinarily resides in Ontario, it shall take the following steps:
1. Verify the information about the respondent's ordinary residence.
2. If the information is confirmed, send the support application to the Ontario court.
3. If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in another reciprocating jurisdiction in Canada,
i. send the support application to the appropriate authority in that other reciprocating jurisdiction, and
ii. notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.
4. If the information is not confirmed and the designated authority has no information about the respondent's ordinary residence, return the support application to the appropriate authority in the originating reciprocating jurisdiction.
5. If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in a jurisdiction outside Canada, return the support application to the appropriate authority in the originating reciprocating jurisdiction with any available information about the respondent's location and circumstances.
Notice of hearing
10. When the Ontario court receives a support application under paragraph 2 of section 9, the clerk shall serve on the respondent, in accordance with the regulations,
(a) a copy of the support application; and
(b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the prescribed information or documents.
Information to be considered
11. (1) In dealing with a support application, the Ontario court shall consider,
(a) the evidence provided to the Ontario court; and
(b) the documents sent from the reciprocating jurisdiction.
If further information or documents needed
(2) If the Ontario court needs further information or documents from the claimant to consider making a support order, the Ontario court shall,
(a) send the designated authority a direction to request the information or documents from the claimant or the appropriate authority in the reciprocating jurisdiction; and
(b) adjourn the hearing.
Temporary order
(3) When the Ontario court acts under subsection (2), it may also make a temporary support order.
18-month delay
(4) If the Ontario court does not receive the information or documents requested under subsection (2) within 18 months after the request is made, it may dismiss the support application and terminate any temporary support order made under subsection (3).
New application
(5) The dismissal of the application under subsection (4) does not preclude the claimant from commencing a new support application.
Parentage
12. (1) If a child's parentage is in issue and has not previously been determined by a court of competent jurisdiction, the Ontario court may determine the matter.
Restriction
(2) A determination of parentage under this section has effect only for the purposes of proceedings relating to support for the child.
Choice of law rules
13. The following rules apply with respect to determining entitlement to support and the amount of support:
1. In determining a child's entitlement to support, the Ontario court shall first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Ontario court shall apply Ontario law.
2. In determining the claimant's entitlement to support, the Ontario court shall first apply Ontario law, but if the claimant is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence.
3. In determining the amount of support for a child or for the claimant, the Ontario court shall apply Ontario law.
Order
14. (1) On the conclusion of a hearing, the Ontario court may, in respect of a claimant, a child or both,
(a) make a support order;
(b) make a temporary support order and adjourn the hearing to a specified date;
(c) adjourn the hearing to a specified date without making a temporary support order; or
(d) refuse to make a support order.
Retroactivity
(2) The Ontario court may make a retroactive support order.
Periodic payments or lump sum
(3) A support order may require support to be paid in periodic payments, as a lump sum, or both.
Reasons for refusal
(4) If the Ontario court refuses to make a support order, it shall give written reasons for its decision and send them to the designated authority.
Order if notice not complied with
15. (1) If the respondent does not appear as required in the notice or does not provide the information or documents required under clause 10 (b), the Ontario court may make an order in the absence of the respondent or of the information or documents and in making the order may draw any inference it considers appropriate.
Copies of order
(2) If the Ontario court makes an order under subsection (1), it shall send copies of the order to the designated authority and to the respondent, in accordance with the regulations.
Sending order to reciprocating jurisdiction
16. When it receives an order that is made under section 14 or 15, the designated authority shall promptly send a certified copy of it, with reasons, if any, to the appropriate authority in the reciprocating jurisdiction that sent the claimant's support application.
PART III
REGISTRATION AND
ENFORCEMENT OF ORDERS
MADE OUTSIDE ONTARIO
Application of Part
17. This Part applies in respect of support orders, temporary support orders and orders varying support orders made in reciprocating jurisdictions in and outside Canada, but not in respect of provisional orders or provisional variation orders.
Receipt of order in Ontario
18. (1) To enforce an order to which this Part applies, the claimant or the appropriate authority of the reciprocating jurisdiction shall send a certified copy of it to the designated authority, together with information about the location and circumstances of any party who is believed to ordinarily reside in Ontario.
Sending to court
(2) On receiving the certified copy, the designated authority shall send it, in accordance with the regulations, to the clerk of the Ontario court sitting nearest the place where the party is believed to reside.
Registration
19. (1) On receiving the order under subsection 18 (2), the clerk of the Ontario court shall register it as an order of the court.
Effect of registration
(2) From the date of registration, the order has the same effect as a support order made by an Ontario court.
Notice
(3) If the order was made outside Canada, notice of its registration shall be given in accordance with section 20, but there is no requirement to give notice of the registration of an order made in Canada.
Same
(4) The registered order may be enforced or varied under this Act with respect to arrears accrued before registration as well as with respect to obligations accruing after registration.
Same
(5) Subsections (2), (3) and (4) apply whether the registered order is made before, on or after the day on which this Act comes into force.
Copies of registered order
(6) When an order has been registered under subsection (1), the clerk of the Ontario court shall,
(a) file a copy with the Director of the Family Responsibility Office under the Family Responsibility and Support Arrears Enforcement Act, 1996, unless the order is accompanied by a notice signed by the person seeking enforcement stating that he or she does not want the order enforced by the Director; and
(b) send a copy to the designated authority.
30-day delay, order made outside Canada
(7) Despite subsection (6), if the registered order was made outside Canada, copies shall not be filed with the Director of the Family Responsibility Office or sent to the designated authority until,
(a) the 30-day period described in subsection 20 (2) has expired without a motion being made to set aside the registration; or
(b) if such a motion is made during the 30-day period, the motion has been finally disposed of.
Notice of registration, order made outside Canada
20. (1) After the registration of an order made in a reciprocating jurisdiction outside Canada, the clerk of the Ontario court shall, in accordance with the regulations, give notice of the registration of the order to any party to the order who is believed to ordinarily reside in Ontario.
Motion to set registration aside
(2) Within 30 days after receiving notice of the registration of the order, a party to the order may make a motion to the Ontario court to set aside the registration.
Notice of motion
(3) A party who makes a motion under subsection (2) shall give notice of it to the designated authority and to the claimant in accordance with the regulations.
Power of court
(4) On a motion under subsection (2), the Ontario court may,
(a) confirm the registration; or
(b) set aside the registration if the Ontario court determines that,
(i) in the proceeding in which the order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard,
(ii) the order is contrary to public policy in Ontario, or
(iii) the court that made the order did not have jurisdiction to make it.
Reasons for setting aside
(5) If the Ontario court sets aside the registration, it shall give written reasons for its decision and send them to the designated authority.
Jurisdiction
(6) For the purposes of subclause (4) (b) (iii), a court has jurisdiction,
(a) if both parties to the order ordinarily reside in the reciprocating jurisdiction outside Canada; or
(b) if a party does not ordinarily reside in the reciprocating jurisdiction outside Canada but is subject to the jurisdiction of the court that made the order.
Notice
(7) The clerk of the Ontario court shall give notice of a decision or order of that court to the parties and the designated authority, in accordance with the regulations.
Proof of notice
(8) In a proceeding to enforce a registered order made in a reciprocating jurisdiction outside Canada, it is not necessary to prove that the respondent received notice under subsection (1) or (7).
Effect of setting aside
21. (1) If the registration of an order made in a reciprocating jurisdiction outside Canada is set aside under section 20, the order shall be dealt with under this Act as if it were a document corresponding to a support application received under paragraph 2 of section 9 or a support variation application received under paragraph 2 of section 32.
Request for information and documents
(2) If the order does not contain the necessary information or documents required for a support application or support variation application, the designated authority shall request them from the claimant or from the appropriate authority of the reciprocating jurisdiction in which the order was made, and no further steps shall be taken in the proceeding until the designated authority has received the required material.
PART IV
VARIATION OF ORDERS
Definitions
22. In this Part,
"applicant" means the party applying to vary a support order; ("requérant")
"respondent" means the party who is the respondent in a support variation application. ("intimé")
Application of Part
23. This Part applies in respect of support orders that are made in Ontario or made in a reciprocating jurisdiction and registered in an Ontario court under Part III or the former Act, but not in respect of provisional orders or provisional variation orders.
Variation of registered order
24. It is not necessary to reregister an order that is registered under Part III and subsequently varied under this Part.
Variation in reciprocating
jurisdiction
25. If a support order originally made in Ontario is varied in a reciprocating jurisdiction under provisions that correspond to sections 32 to 38, it shall be deemed to be so varied in Ontario.
Restrictions
26. (1) Nothing in this Part,
(a) authorizes a judge of the Ontario Court of Justice to vary a support order made in Canada by a federally appointed judge; or
(b) allows a support order originally made under the Divorce Act (Canada) to be varied except as authorized by federal enactment.
Powers of provincially appointed judge
(2) Despite subsection (1), a judge of the Ontario Court of Justice may make a provisional order to vary a support order made in Canada under a provincial enactment by a federally appointed judge.
Applicant In Ontario
Support variation application
27. (1) An applicant who ordinarily resides in Ontario and believes that the respondent ordinarily resides in a reciprocating jurisdiction may start a proceeding in Ontario that could result in a variation order being made in the reciprocating jurisdiction.
Same
(2) To start the proceeding, the applicant shall complete a support variation application that includes,
(a) the applicant's name and address for service;
(b) a copy of the support order;
(c) a copy of the specific statutory or other legal authority on which the application is based, unless the applicant is relying on the law of the jurisdiction where the respondent ordinarily resides;
(d) details of the variation applied for, which may include a termination of the support order; and
(e) the affidavit described in subsection (3).
Affidavit
(3) The affidavit shall set out,
(a) the respondent's name and any information known to the applicant that can be used to locate or identify the respondent;
(b) the respondent's financial circumstances, to the extent known by the applicant, including whether the respondent is receiving social assistance;
(c) whether the support order was assigned, and any details of the assignment known to the applicant;
(d) the name of each person, to the extent known by the applicant, for whom support is payable or who would be affected by the variation;
(e) the evidence in support of the application, including,
(i) if support to the applicant or respondent is an issue, information about their relationship, and
(ii) if the variation would affect support for a child, information about the child's financial and other circumstances, including any extraordinary expenses;
(f) the prescribed information about the applicant's financial circumstances; and
(g) any other prescribed information.
No notice to respondent required
(4) The applicant is not required to notify the respondent that a proceeding has been started under this section.
Submission of application to designated authority
28. (1) The applicant shall submit the support variation application to the designated authority in Ontario.
Duty of designated authority
(2) On receiving a support variation application, the designated authority shall promptly,
(a) review the application to ensure that it is complete; and
(b) send a copy of the completed application to the appropriate authority in the reciprocating jurisdiction in which the applicant believes the respondent ordinarily resides.
Further information or documents
(3) On receiving a request for further information or documents from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to clause 34 (2) (a), the applicant or the designated authority shall provide the further information or documents, within the time referred to in the request and in accordance with the regulations.
Copy of order and reasons
(4) On receiving a certified copy of an order and reasons, if any, from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to section 38, the designated authority shall provide a copy of the order and reasons, if any, to the applicant, in accordance with the regulations.
Variation if respondent no longer resident in
reciprocating jurisdiction
29. If the applicant ordinarily resides in Ontario and the respondent no longer ordinarily resides in a reciprocating jurisdiction, the applicant may apply directly to the Ontario court to vary the support order, and the court may make a variation order if the respondent has been given notice of the proceeding.
Provisional variation order
30. (1) If the applicant reasonably believes that the respondent ordinarily resides in a reciprocating jurisdiction that requires a provisional variation order, the Ontario court may, on the applicant's motion and without notice to the respondent, make a provisional variation order taking into account the legal authority on which the applicant's application for variation is based.
Evidence
(2) Evidence on a motion under subsection (1) may be given orally, in writing or in any other prescribed manner.
Material to be sent to reciprocating jurisdiction
(3) If a provisional variation order is made, the court shall send it to the designated authority, which shall send to the reciprocating jurisdiction,
(a) three certified copies of the provisional variation order; and
(b) a support variation application referred to in subsection 27 (2).
Further evidence
(4) If, in considering whether to confirm a provisional variation order, a court in a reciprocating jurisdiction sends a matter back for further evidence to the Ontario court that made the provisional variation order, the Ontario court shall, after giving notice to the applicant, receive further evidence.
Transcript of further evidence,
copy of modified order
(5) If evidence is received under subsection (4), the clerk of the Ontario court shall send to the court in the reciprocating jurisdiction,
(a) a certified transcript of the evidence; and
(b) if the Ontario court considers it appropriate to modify its provisional variation order, three certified copies of the order as modified.
New provisional variation order
(6) If a provisional variation order made under this section comes before a court in a reciprocating jurisdiction and confirmation is denied in respect of one or more persons for whom support is payable, the Ontario court that made the provisional variation order may, on motion within six months after the denial of confirmation, reopen the matter, receive further evidence and make a new provisional variation order for a person in respect of whom confirmation was denied.
Applicant Outside Ontario
Application of ss. 32 to 38
31. (1) Sections 32 to 38 apply in respect of,
(a) provisional variation orders referred to in clause (b) of the definition of "provisional variation order" in section 1; and
(b) documents from reciprocating jurisdictions corresponding to a support variation application described in subsection 27 (2).
Meaning of "support variation application"
(2) In sections 32 to 38, "support variation application" refers to the orders and documents described in subsection (1).
Steps taken by designated authority
32. If the designated authority receives a support variation application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent ordinarily resides in Ontario, it shall take the following steps:
1. Verify the information about the respondent's ordinary residence.
2. If the information is confirmed, send the support variation application to the Ontario court.
3. If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in another reciprocating jurisdiction in Canada,
i. send the support variation application to the appropriate authority in that other reciprocating jurisdiction, and
ii. notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.
4. If the information is not confirmed and the designated authority has no information about the respondent's ordinary residence, return the support variation application to the appropriate authority in the originating reciprocating jurisdiction.
5. If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in a jurisdiction outside Canada, return the support variation application to the appropriate authority in the originating reciprocating jurisdiction with any available information about the respondent's location and circumstances.
Notice of hearing
33. When the Ontario court receives a support variation application under paragraph 2 of section 32, the clerk shall serve on the respondent, in accordance with the regulations,
(a) a copy of the support variation application; and
(b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the prescribed information or documents.
Information to be considered
34. (1) In dealing with a support variation application, the Ontario court shall consider,
(a) the evidence provided to the Ontario court; and
(b) the documents sent from the reciprocating jurisdiction.
If further information or documents needed
(2) If the Ontario court needs further information or documents from the applicant to consider making a support variation order, the Ontario court shall,
(a) send the designated authority a direction to request the information or documents from the applicant or the appropriate authority in the reciprocating jurisdiction; and
(b) adjourn the hearing.
Temporary order
(3) When the Ontario court acts under subsection (2), it may also make a temporary support variation order.
18-month delay
(4) If the Ontario court does not receive the information or documents requested under subsection (2) within 18 months after the request is made, it may dismiss the support variation application and terminate any temporary support variation order made under subsection (3).
New application
(5) The dismissal of the application under subsection (4) does not preclude the applicant from commencing a new support variation application.
Choice of law rules
35. The following rules apply with respect to determining entitlement to receive or to continue to receive support and the amount of support:
1. In determining a child's entitlement to receive or to continue to receive support, the Ontario court shall first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Ontario court shall apply Ontario law.
2. In determining the amount of support for a child, the Ontario court shall apply the law of the jurisdiction where the person liable to pay the support ordinarily resides.
3. In determining the entitlement of the applicant to receive or to continue to receive support, the Ontario court shall first apply Ontario law, but if the applicant is not entitled to support under Ontario law, the Ontario court shall apply,
i. the law of the jurisdiction in which the applicant ordinarily resides, or
ii. if the applicant is not entitled to support under the law of the jurisdiction in which he or she ordinarily resides, the law of the jurisdiction in which the parties last maintained a common habitual residence.
4. In determining the amount of support for the applicant, the Ontario court shall apply Ontario law.
Order
36. (1) On the conclusion of a hearing, the Ontario court may, in respect of the applicant, a child or both,
(a) make a support variation order;
(b) make a temporary support variation order and adjourn the hearing to a specified date;
(c) adjourn the hearing to a specified date without making a temporary support variation order; or
(d) refuse to make a support variation order.
Retroactivity
(2) The Ontario court may make a retroactive support variation order.
Periodic payments or lump sum
(3) A support variation order may require support to be paid in periodic payments, as a lump sum or both.
Reasons for refusal
(4) If the Ontario court refuses to make a support variation order, it shall give written reasons for its decision and send them to the designated authority.
Order if notice not complied with
37. (1) If the respondent does not appear as required in the notice or does not provide the information or documents required under clause 33 (b), the Ontario court may make an order in the absence of the respondent or of the information or documents and in making the order may draw any inference it considers appropriate.
Copies of order
(2) If the Ontario court makes an order under subsection (1), it shall send copies of the order to the designated authority and to the respondent, in accordance with the regulations.
Sending order to reciprocating jurisdiction
38. When it receives an order that is made under section 36 or 37, the designated authority shall promptly send a certified copy of it, with reasons, if any, to the appropriate authority in the reciprocating jurisdiction in which the applicant ordinarily resides and if the support order was originally made in another reciprocating jurisdiction, to the appropriate authority in that jurisdiction.
Variation of Registered Orders
Jurisdiction
39. (1) The Ontario court may, on a party's motion, after taking into account any right of a government or delivery agent under section 45, vary a support order registered in Ontario under Part III or the former Act,
(a) if both the applicant and respondent accept the Ontario court's jurisdiction;
(b) if both the applicant and respondent ordinarily reside in Ontario; or
(c) if the respondent ordinarily resides in Ontario and the support order was registered by the applicant under Part III or the former Act.
Application of Family Law Act
(2) The Family Law Act applies for the purposes of varying a support order under the circumstances referred to in subsection (1), as if the order being varied were an order for support under that Act.
PART V
APPEALS AND MISCELLANEOUS
Appeals
40. (1) Subject to subsections (2) and (4), a claimant, applicant or respondent or the designated authority may appeal any decision of the Ontario court under this Act to the proper appellate court as determined under the Courts of Justice Act.
Appeal period
(2) An appeal shall be commenced within 90 days after the date the Ontario court's decision is entered as a judgment.
Same
(3) Despite subsection (2), the appellate court may extend the appeal period, even after it has expired.
Same
(4) A person responding to an appeal under subsection (2) may appeal a decision in the same proceeding within 30 days after receiving notice of the appeal.
Order in force pending determination of appeal
(5) An order under appeal remains in force pending the determination of the appeal unless the court that made the order or the appellate court orders otherwise.
Notice of decision on appeal
(6) The registrar of the appellate court shall send a copy of that court's decision on the appeal to the designated authority, which shall notify the appropriate authority in the reciprocating jurisdiction of the decision on the appeal.
Appointment of designated authority
41. (1) The Attorney General may appoint a person to act as the designated authority in Ontario for the purposes of this Act.
Delegation
(2) The person appointed under subsection (1) may, in writing, delegate any power or duty under this Act to any other person or persons.
Protection from personal liability
(3) No proceeding for damages shall be commenced against the designated authority or any employee of the designated authority's office for any act done in good faith in the execution or intended execution of any duty or authority under this Act or for any alleged neglect or default in the execution in good faith of any duty or authority under this Act.
Crown not relieved of liability
(4) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (3) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (3) to which it would otherwise be subject.
Sending documents
42. On receipt of an order or document to be sent under this Act to a reciprocating jurisdiction, the designated authority shall send the order or document to the appropriate authority of the reciprocating jurisdiction.
Translation
43. (1) An order or other document that is to be sent to a reciprocating jurisdiction that requires it to be translated into a language other than English or French shall be accompanied by a certified translation into that language.
Same
(2) An order or other document from a reciprocating jurisdiction that is written in a language other than English or French shall be accompanied by a certified translation into English or French.
Order or application expressed in foreign currency
44. If a support order or an application made in a reciprocating jurisdiction outside Canada and received by the Ontario court under this Act refers to an amount of support that is not expressed in Canadian currency, the clerk shall convert the amount into Canadian currency in accordance with the regulations.
Right of subrogation
45. (1) Any government or delivery agent that is providing or has provided social assistance to or on behalf of a person who is entitled to make a claim for support has the rights of a claimant or applicant under this Act for the following purposes:
1. Obtaining support or a variation of support in the name of the government or delivery agent.
2. Obtaining reimbursement of the social assistance provided to or on behalf of that person by the government or delivery agent.
3. Assigning a support order made or registered under this Act.
4. Sending an order to the designated authority for registration.
Same
(2) Where a person who is required to pay support makes an application for a variation under Part IV, a government or delivery agent has the rights of the respondent with respect to the application for the following purposes if the government or delivery agent is providing or has provided social assistance to or on behalf of the respondent:
1. To respond to the application for variation of the support order for that person.
2. To obtain reimbursement of the social assistance provided to or on behalf of that person by the government or delivery agent.
Same
(3) Subsections (1) and (2) also apply, with necessary modifications, if the government or delivery agent has received an application for social assistance but has not yet provided it.
Definition
(4) In this section,
"social assistance" means a benefit, assistance or income support under the Family Benefits Act, the General Welfare Assistance Act, the Ontario Disability Support Program Act, 1997 or the Ontario Works Act, 1997.
Terminology
46. If, in a proceeding under this Act, a document from a court in a reciprocating jurisdiction contains terminology different from the terminology in this Act or contains terminology or is in a form different than that customarily in use in the Ontario court, the Ontario court shall give a broad and liberal interpretation to the terminology or form so as to give effect to the document.
Judicial notice of law of reciprocating jurisdiction
47. (1) In a proceeding under this Act, the Ontario court shall take judicial notice of the law of a reciprocating jurisdiction and, where required, apply it.
Proof of enactment
(2) An enactment of a reciprocating jurisdiction may be pleaded and proved for the purposes of this Act by producing a copy of the enactment received from the reciprocating jurisdiction.
Proof of appointment
48. In a proceeding under this Act, a document purporting to be signed by a judge, officer of a court or public officer in a reciprocating jurisdiction is, unless the contrary is proved, proof of the appointment, signature and authority of the person who signed it.
Receipt in evidence
49. (1) Statements in writing sworn to by the maker, depositions or transcripts of evidence taken in a reciprocating jurisdiction may be received in evidence by an Ontario court under this Act.
Same, proof of default
(2) Default in paying support or arrears of support may be proved by a sworn document made by a person who declares that he or she has knowledge of, or information and belief concerning, the default or arrears.
Spouses as witnesses
50. Spouses are competent and compellable witnesses against each other in proceedings under this Act.
Other remedies
51. This Act does not impair any other remedy available to a person, the Province of Ontario, a province or territory of Canada, a jurisdiction outside Canada or a political subdivision or official agency of the Province of Ontario, of a province or territory of Canada or of a jurisdiction outside Canada.
Regulations re reciprocating jurisdictions
52. (1) If the Lieutenant Governor in Council is satisfied that laws are or will be in effect in a jurisdiction for the reciprocal enforcement of support orders made in Ontario on a basis substantially similar to this Act, the Lieutenant Governor in Council may make regulations declaring that jurisdiction to be a reciprocating jurisdiction.
Conditions
(2) In declaring a jurisdiction to be a reciprocating jurisdiction under subsection (1), the Lieutenant Governor in Council may impose any conditions with respect to the enforcement and recognition of support orders made or registered in that jurisdiction.
Revocation
(3) The Lieutenant Governor in Council may, by regulation, revoke a declaration made under subsection (1), and the jurisdiction to which the revocation relates ceases to be a reciprocating jurisdiction for the purposes of this Act.
Other regulations
53. The Lieutenant Governor in Council may make regulations,
(a) respecting notices, information and documents required by this Act;
(b) respecting the serving or giving of notices, information and documents under this Act;
(c) respecting proceedings under this Act;
(d) respecting conversion into Canadian currency for the purposes of section 44;
(e) prescribing forms for the purposes of this Act;
(f) prescribing anything that is referred to in this Act as being prescribed.
Transition
54. (1) An order that was made or registered under the former Act remains effective and may be varied, enforced or otherwise dealt with as if it had been made or registered under this Act.
Same
(2) If the respondent received notice of a hearing to consider a provisional order or a provisional variation order or notice of registration of a final order under the former Act before the commencement date, the matter shall be dealt with in accordance with the former Act as if it had not been repealed.
Same
(3) If a person who ordinarily resides in Ontario applied for a provisional order or a provisional variation order under the former Act before the commencement date, the application continues under the former Act as if it had not been repealed.
Same
(4) If a final order was received for registration under the former Act before the commencement date but, on that day, has not yet been registered, the order shall be dealt with in accordance with this Act as if it had been received under Part III.
Same
(5) If a provisional order or a provisional variation order was received under the former Act before the commencement date but, on that day, the respondent had not received notice of the hearing to consider the order, the order shall be dealt with in accordance with this Act as if it had been received under Part III or Part IV, as the case may be.
Definition
(6) In this section,
"commencement date" means the day this Act comes into force.
Repeal
55. The Reciprocal Enforcement of Support Orders Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule and 1997, chapter 25, Schedule E, section 10, is repealed.
56. Paragraph 1 of the Schedule to section 21.8 of the Courts of Justice Act, as enacted by the Statutes of Ontario, 1994, chapter 12, section 8 and amended by 1996, chapter 31, section 65 and 2000, chapter 33, section 20, is amended by striking out "Reciprocal Enforcement of Support Orders Act" and substituting "Interjurisdictional Support Orders Act, 2002".
57. (1) The definition of "provisional order" in subsection 1 (1) of the Family Responsibility and Support Arrears Enforcement Act, 1996 is amended by striking out "sections 3 and 7 of the Reciprocal Enforcement of Support Orders Act" and substituting "sections 7 and 30 of the Interjurisdictional Support Orders Act, 2002".
(2) Subsection 13 (1) of the Act is repealed and the following substituted:
Orders of other jurisdictions
(1) When a support order made by a court outside Ontario is registered under subsection 19 (1) of the Interjurisdictional Support Orders Act, 2002, the clerk who registers the order shall promptly file it with the Director's office, unless the order is accompanied by a notice signed by the person seeking enforcement stating that he or she does not want the order enforced by the Director.
(3) Subsection 50 (2) of the Act is amended by striking out "section 14 of the Reciprocal Enforcement of Support Orders Act" and substituting "section 44 of the Interjurisdictional Support Orders Act, 2002".
Commencement
58. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
59. The short title of this Act is the Interjurisdictional Support Orders Act, 2002.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 131 and does not form part of the law. Bill 131 has been enacted as Chapter 13 of the Statutes of Ontario, 2002.
The proposed Act is based on model legislation developed by a committee of federal, provincial and territorial government officials to provide simplified processes for the making, recognition and variation of interjurisdictional support orders. It replaces the Reciprocal Enforcement of Support Orders Act.