Canada’s System for the International Recovery of

Maintenance and its Application to the 2007 Child Support

ConventionChris Beresford (Ministry of Justice British Columbia)Tracy Morrow (Department of Justice Manitoba)Andina van Isschot (Department of Justice Canada)

Hong Kong, November 2015

Jurisdiction over Family Maintenance: Federal-Provincial-Territorial Authorities

As a federal state, the Canadian Constitution divides the powers to make laws between provinces & territories (PT) and the federal government of Canada

Laws concerning Establishment and Modification of family maintenance obligations fall under both PT + federal jurisdiction:

Federal jurisdiction where maintenance arises in the context of a Canadian divorcePT jurisdiction in all other cases

Enforcement of maintenance obligations falls under PT jurisdiction & federal govt provides assistance

PTs are responsible for administration of justice & delivery of family justice services

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Reciprocity: Interjurisdictional Enforcement of Maintenance• Enforcement of maintenance obligations in interjurisdictional

cases is based on reciprocity arrangements between each province and territory and other jurisdictions

• Provinces and territories (except QC) have substantially similar reciprocity legislation governing interjurisdictional cooperation in field of maintenance - based on model legislation (ISO legislation)

• All Canadian PTs have reciprocity arrangements with each other, and with a number of other foreign reciprocating jurisdictions

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Establishing Reciprocity Arrangements

• PTs have authority under their laws to declare or designate foreign States as reciprocating jurisdictions if the family maintenance laws of the PT and the foreign State are “substantially similar”

• Foreign laws are similar enough to Canadian laws where they:• Recognize same principles of procedural fairness as Canadian Laws• Provide for adequate, no-cost enforcement of established maintenance

obligations• Provide procedures for establishment of maintenance obligations against

someone in another jurisdiction• Allow for modification of an existing order• Establishing reciprocity arrangements of this nature is at this time the only

means of recovering maintenance in an international context, unless the party seeking support hires a lawyer in the other country, at their own expense

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Provincial/Territorial Reciprocity with other States

Canadian PTs have reciprocity with Hong Kong and Singapore

Full list of States with which PTs have reciprocity:http://www.justice.gc.ca/eng/fl-df/enforce-execution/ov-ap.html

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2007 Child Support Convention

• Canada is not a party to the 2007 Convention or any other multilateral instrument with respect to the recovery of family maintenance

• But Canada engaged in international negotiations on the Convention and it has been under study by federal, provincial and territorial officials to determine the feasibility and desirability of implementation in Canada

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Canada and the Convention: SimilaritiesConvention obligations are compatible with the Canadian system for international recovery of maintenance, for example:• Each PT has a Designated Authority with similar

functions to CA• Available applications: establishment, modification,

recognition and enforcement• Procedure for recognition and enforcement of

maintenance obligations under PT law is similar to procedure under Art. 23 of the Convention

• Maintenance agreements can be recognized and enforced under PT law similar to “maintenance arrangements” under the Convention

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Importance of Flexibility in the Convention for Canada

 • Scope: Option to extend the application of the Convention in whole or in

part beyond mandatory scope • Accommodates Canada’s federal system • The Central Authorities can perform their functions by using methods

that are practical and efficient based on their own system• Flexibility to provide effective access to procedures through Central

Authority services where possible in lieu of free legal assistance• Certain reservations concerning bases for recognition and enforcement

can be made to accommodate the law of requested States• Direct requests

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Enforcement of International Cases in Canada

• The same policies and methods apply to international cases as domestic cases

• We want parents who pay support and receive support to have the same understanding of the program:• Voluntary payments are always the preferred method• Enforcement actions will happen quickly• Enforcement services are primarily administrative (non-court)• Enforcement will escalate and de-escalate as necessary• Enforcement services can assist with many things – but they

cannot change support obligations

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Enforcement of International Cases in Canada

Trace and locateMethods vary from ad-hoc to advanced

• Desktop internet tools• Manual database searches• Automated database searches

The most effective methods combine provincial/territorial government data with federal government data

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Enforcement of International Cases in Canada

Enforcement MeasuresFocus on administrative (non-court) measures:

• Find the money (wages, pensions, bank accounts, tax refunds, assets)*FPT

• Licence denial (driver’s licence, passport, recreational)*FPT

• Reports (to credit reporting agencies, professional bodies)

Court is an important, but last resort:• Default hearings, committal hearings

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Enforcement of International Cases in Canada

Case ManagementTreat paying parents as clients with a focus on services:

• Good communication (telephone, web services, in person) that allows access• Clear information about what will happen• Try to move back to voluntary payments• Make payment as easy as possible (eBanking) • Disburse payments quickly (eBanking)• Manageable caseloads – this is a people business

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Enforcement measures…It all fits together:

• A Partnership between provincial, territorial and federal services;

• Combine our resources to locate people and their assets;

• Establish common legislation for enforcement tools;• Use proven case management processes to reduce

conflict, increase understanding, and take actions that will ensure that parents fulfill their financial obligations to their children.

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Enforcement measures…

What are we doing with International Cases

• Managing the account for accuracy between different currencies• Manitoba and BC have the capacity for periodic

currency conversion• Trying to develop international eBanking options

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Enforcement measures…

What are we doing with International Cases• Communication, between staff and with clients

• Web services – to address time zones and access to information

• Dedicated teams for international cases – to understand the different needs of different countries

• Talk to and listen to our partners – through the Worldwide Network, through NCSEA and the international committee

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What’s happening in Canada in relation to the 2007 Child Support Convention?

FPT officials are having ongoing discussions about the 2007 Child Support Convention and its possible implementation in Canada.Implementation in Canada will involve federal as well as provincial/territorial levels of government since the subject-matter of the Convention touches upon both levels of jurisdiction. The process of ratifying a Convention and becoming a party to it involves putting legislation in place to implement it. In addition, as of 2008, any treaty being considered for ratification must be tabled in the House of Commons and go through a Parliamentary approval process. For more information on treaty-making in Canada: http://www.parl.gc.ca/Content/LOP/ResearchPublications/2008-45-e.htm

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More Information…For more information on Canada’s system for the international recovery of maintenance, see Canada’s Department of Justice website:

http://www.justice.gc.ca/eng/fl-df/enforce-execution/enforce-execut.html

For information on Canada’s Provincial and Territorial Designated Authorities under Inter-jurisdictional Support Orders legislation:

http://www.justice.gc.ca/eng/fl-df/enforce-execution/ov-ap.html

This presentation does not represent the positionof the government of any Canadian jurisdiction

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