Obtaining and enforcing a child support order when the other party resides in another jurisdiction can be a complicated process. However, legislation establishes a process to obtain support without having to retain a lawyer in the other jurisdiction. When the other party resides outside of the court’s jurisdiction, these cases may begin without a court having a complete picture of the other party’s finances. So, how can courts determine the amount of support that should be paid?

Navigating the Interjurisdictional Support Orders Act

Under the Interjurisdictional Support Orders Act, there are two different processes that may address the issue of child support orders when parties live in different jurisdictions, depending on whether the claimant resides in Ontario, or lives outside of Ontario and is claiming against a respondent who is believed to reside in Ontario.

Claimants Living in Ontario

Section 5(1)of the Interjurisdictional Support Orders Act, provides that a claimant who resides in Ontario and believes that the respondent habitually resides in a reciprocating jurisdiction may commence a proceeding in Ontario which may result in a support order being made in the reciprocating jurisdiction. When starting such a proceeding, the claimant must complete a specific application which includes details about the claim and the responding party. The support application is then submitted to the designated authority in Ontario and, upon receipt, the designated authority shall review the application for completion and send a copy of the completed application to the appropriate authority in the reciprocating jurisdiction in which the respondent is believed to be habitually resident in. After the support application has been received by the reciprocating jurisdiction may request additional information or documents and a provisional order may be made.

Claimants Living Outside of Ontario

Conversely, a support application may be made by a claimant living outside of Ontario against a respondent who is believed to habitually reside in Ontario. In this case, the claimant or the appropriate authority of the reciprocating jurisdiction must send a copy of the order to the designated authority, along with information about the location and circumstances of the party who is believed to be habitually resident in Ontario or believed to own assets or have a source of income in Ontario.

Judge Finds Foreign Support Order is Higher Than Ontario Law Required

In Wright v. Christie, the applicant brought a support application for the children. She was the children’s maternal grandmother, and the children moved to the United Kingdom to live with her. She subsequently obtained a provisional order from the Manchester court in the United Kingdom on August 24, 2010.

The respondent (the children’s father) sought a hearing in Ontario concerning the Manchester order, which required him to pay the equivalent of $982 CAD per month, per child. The judge looked to section 13 of Ontario’s Interjurisdictional Support Orders Act, which sets out the rules determining entitlement to support and the amount of support. The Interjurisdictional Support Orders Act provides courts with authority to make a final order. Paragraph 3 of the section states that Ontario law must be applied in determining the amount of child support that should be paid. Additionally, the judge found he was not limited only to the choices of confirming or rejecting the Manchester order, as the Interjurisdictional Support Orders Act states that the documents received from the reciprocating jurisdiction constitute information that is available to the court to consider in making its order.

Manchester Court Order in Excess of Ontario Law Support Amount

In this case, Justice Sherr found that the support amount in the Manchester order was in excess of the amount that the respondent would be required to pay according to Ontario law. It seemed the Manchester court had no information about the respondent’s income when it made its decision. However, Justice Sherr benefited from having evidence from both the applicant and the respondent to determine the amount of support that should be paid. On that basis, the judge concluded that the support amount set out in the Manchester order should not be confirmed, and a new order would be made instead.

The respondent suggested that his child support obligations should start in September 2010. However, the judge felt this was reasonable, as the respondent did not receive a request for child support until he received the application in December 2010. Further, the applicant did not issue her claim in the United Kingdom until August 2010. Moreover, the applicant did not make a claim for retroactive support, and the Manchester order did not specify a start date for support.

Court Creates New Order in Accordance with Federal Child Support Guidelines

Ultimately, after considering the respondent’s last three years of income, the Court found it “fair and reasonable to assess an annual income of $42,000 to the respondent for child support purposes starting on 1, January 2011.” Accordingly, the Federal Child Support Guidelines table amount for this income range for two children was set at $636 CAD per month to begin on September 1, 2010. The Court also acknowledged that the new order would “automatically create child support arrears” which would be repaid in the sum of $150 per month.

Legislation Gives Framework to Facilitate Cross Border Support Payments

Inter-jurisdictional support cases can be challenging when there is limited evidence available for courts to properly determine a party’s income. However, there are ways for courts to impute income and make a support order when a party resides in another jurisdiction.

Contact NULaw in Toronto for Trusted Advice and Skilled Representation in Family Law Matters

The experienced family lawyers at NULaw in Toronto regularly advise clients on child and spousal support rights and obligations and create comprehensive legal strategies tailored to your unique situation. To discuss your child support or parenting matter with a member of our team, contact us online or by phone at (416) 481-5604.