Closer to the Convention
Canada is approaching the moment when the 1996 Convention on child protection will be applicable. Some of the modifications in the Divorce Act are meant to bring the Act closer to the provisions of the Convention. And while the Convention is not in force in Canada yet, its approach — through the novelties in the Divorce Act — is already there.
Procedure
Technically, the procedural steps for international proceedings concerning support orders are quite like the new interprovincial simplified procedure: there is no requirement to notify the respondent of the initiated proceedings and the responsible authority in the applicant’s jurisdiction has similar functions.
So, the applicant is in a certain foreign country (so-called designated jurisdiction). He or she may apply in his home state for a support order (or its variation) or request to have the amount of support payments calculated or recalculated by a provincial child support service in a Canada. Before a foreign applicant had to apply to a Canadian court in the province where the debtor lived. (This way is still available for those who want to more meaningfully participate in the process and ready for the concomitant inconveniences).
The authorities of the applicant’s home state will send the application to the province where the debtor is habitually resident. A designated body in the province will review the application to see if it’s complete (includes all the information necessary to make an order or decision) and send it to the Court of the province or to the provincial child support service. The Court office of the provincial child support service will serve the application on the debtor with a notice on how to proceed and what documents to provide. There will be no notification about this to the applicant. The applicant could still indicate his (her) wish to participate in a hearing via teleconference technology.
If the Court office or the provincial child support service were unable to serve the application on the debtor, they will return the application to the designated body in the province, which will return it to the original country.
Decision-making
If the Court needs further evidence, it may adjourn the hearing to wait for that evidence and make an interim order for this while. The Court will then ask the designated body to contact the authorities in the applicant’s country to request the missing evidence. If no evidence comes back in twelve months, the Court may dismiss the application and terminate the interim order. Yet, the applicant may apply again.
If the Court is of the opinion that the evidence is sufficient, it may make a support order (or a variation order), retroactively or prospectively, based in the evidence (including oral or written submissions be it in person, via teleconference or by an affidavit, according to the Court rules). It is also specified that the Court may overlook some formal incongruity (like different terminology) in the provided documents.
It is possible that by the time there was a provisional order made in the foreign jurisdiction (which is not in force in Canada unless confirmed by a Canadian court), the Court hearing the application can take this provisional order into account, but it’s not obliged to follow it.
These changes into the Divorce Act are not in force yet. They were meant to become in force on July 1, 2020, but in the circumstances, it is not clear if this date will be observed. If you have questions, do not hesitate to contact our office for a consultation by phone: 514-816-4150 or via email: [email protected].
Lawyers of Allen Madelin are recognized to be among the best divorce lawyers in Montreal. They defend their clients’ interests vigorously and with commitment in divorce, separation, spousal support, child support payment and custody cases. They also offer education on the important implications of the recent changes in the Divorce Act. Contact us for more information.
