RSNL1990 CHAPTER R - 5 - RECIPROCAL ENFORCEMENT OF SUPPORT ORDERS ACT - Point in Time

Short title

1. This Act may be cited as the Reciprocal Enforcement of Support Orders Act.

1988 c59 s1

Definitions

2. In this Act

(a) "Attorney General" includes a person authorized in writing by the Attorney General of the province to act for him or her in the performance of a power or duty under this Act;

(b) "certified copy" means, in relation to a document of a court, the original or a copy of the document certified by the original or facsimile signature of an officer of the court to be a true copy;

(d) "confirmation order" means a confirmation order made under this Act or under the corresponding Act of a reciprocating jurisdiction;

(e) "court" means an authority having jurisdiction to make an order;

(f) "final order" means an order made in a proceeding of which the claimant and respondent had proper notice and in which they had an opportunity to be present or represented and includes

(i) support provisions in a written agreement between a claimant and a respondent where those provisions are enforceable in the jurisdiction in which the agreement was made as if contained in an order of a court of that jurisdiction, and

(ii) a confirmation order made in a reciprocating jurisdiction;

(g) "order" means an order or determination of a court providing for the payment of money as support by the respondent named in the order for the benefit of the claimant named in the order and includes an order for support made in a divorce court in a reciprocating jurisdiction outside Canada;

(h) "provisional order" means an order of a court in the province that has no effect until confirmed by a court in a reciprocating jurisdiction or a corresponding order made in a reciprocating jurisdiction for confirmation in the province;

(i) "reciprocating jurisdiction" means a jurisdiction declared under section 19 to be a reciprocating jurisdiction and includes a province of Canada ;

(j) "registered order" means

(i) a final order made in a reciprocating jurisdiction and filed under this Act with a court in the province,

(ii) a final order considered under subsection 3(4) to be a registered order, or

(iii) a confirmation order that is filed under subsection 6(10);

(k) "registration court" means the court in the province

(i) in which the registered order is filed under this Act, or

(ii) that considered a final order to be a registered order under this Act;

(l) "respondent" means a person in the province or in a reciprocating jurisdiction who has or is alleged to have an obligation to pay support for the benefit of a claimant, or against whom a proceeding under this Act, or a corresponding Act of a reciprocating state, is started; and

(m) "support" includes maintenance or alimony.

1988 c59 s2; 1989 c11 s5

Registration of final order

3. (1) Where the Attorney General receives a certified copy of a final order made in a reciprocating jurisdiction with information that the respondent is in the province, the Attorney General shall designate a court in the province for the purposes of the registration and enforcement and forward the order and supporting material to that court.

(2) On receipt of a final order transmitted to a court under subsection (1) or under a provision in a reciprocating jurisdiction corresponding to paragraph 6(10)(a), the appropriate officer of the court shall file the order with the court and give notice of the registration of the order to the respondent.

(3) Where the court does not intend to register the final order it shall so advise the Attorney General and the Attorney General may be heard by the court on the issue of the court's refusal to register.

(4) Where a final order is made in the province and the claimant later leaves the province and is apparently living in a reciprocating jurisdiction, the court that made the order shall, on the written request of the claimant, the respondent or the Attorney General, consider the order to be a registered order.

(5) A registered order varied in a manner consistent with this Act continues to be a registered order.

(6) A respondent may, within 1 month after receiving notice of the registration of a registered order, apply to the registration court to set the registration aside.

(7) On application under subsection (6) the registration court shall set aside the registration where it determines that the order was obtained by fraud or error or was not a final order.

(8) An order determined not to be a final order and set aside under subsection (7) may be dealt with by the registration court under section 6 as a provisional order.

(9) Where an order purporting to be a final order is made by a court in a reciprocating jurisdiction and the order is not enforceable in the province under the conflict of laws rules of the province, the court in the province may, in its discretion, consider the order to be a provisional order and deal with it under section 6.

1988 c59 s3; 1989 c11 s5

Provisional order

4. (1) On application by a claimant, a court may, without notice to and in the absence of a respondent, make a provisional order against the respondent.

(2) Where the court makes a provisional order under subsection (1) it shall take into consideration, with the necessary changes, the criteria for support in section 39 of the Family Law Act.

(3) An order under subsection (1) may only include the support provisions the court could have included in a final order in a proceeding of which the respondent had notice in the province but in which the respondent failed to appear.

(4) Where a provisional order is made, an officer of the court shall send to the Attorney General for transmission to a reciprocating jurisdiction

(a) 3 certified copies of the provisional order;

(b) a certified transcript of the evidence given in the proceeding or a sworn or affirmed document setting out or summarizing the evidence given in the proceeding;

(d) a statement giving available information respecting identification, location, income and assets of the respondent.

(5) Where, during a proceeding for a confirmation order, a court in a reciprocating jurisdiction remits the matter back for further evidence to the court in the province that made the provisional order, the court in the province shall, after giving notice to the claimant, receive further evidence.

(6) Where evidence is received under subsection (5), an officer of the court shall forward to the court in the reciprocating jurisdiction a sworn or affirmed document setting out or summarizing the evidence with the recommendations that the court in the province considers appropriate.

(7) Where a provisional order made under this section comes before a court in a reciprocating jurisdiction and confirmation is denied in respect of 1 or more claimants, the court in the province that made the provisional order may, on application within 6 months from the denial of confirmation, reopen the matter and receive further evidence and make a new provisional order for a claimant in respect of whom confirmation was denied.

1988 c59 s4

Parentage

5. (1) Where the parentage of a child is at issue and has not previously been determined by a court, the parentage may be determined as part of a support proceeding under this Act in accordance with the procedure outlined in the Children's Law Act.

(2) Where the respondent disputes parentage in the course of a proceeding to confirm a provisional order for support, the matter of parentage may be determined even though the provisional order makes no reference to parentage.

(3) A determination of parentage under this section has effect only for the purpose of support proceedings under this Act.

1988 c59 s5

Provisional order from reciprocating jurisdiction

6. (1) Where the Attorney General receives from a reciprocating jurisdiction documents corresponding to those described in subsection 4(4) with information that the party is in the province, the Attorney General shall designate a court in the province for the purpose of proceedings under this section and forward the documents to that court.

(2) On receipt of the documents referred to in subsection (1), the court shall notify the party in the same manner as it would in a proceeding under the Family Law Act for the same relief, and shall proceed with the hearing, whether or not the party is present, taking into consideration the sworn or affirmed document setting out or summarizing the evidence given in the proceeding in the reciprocating jurisdiction.

(3) Where the court does not intend to register the documents referred to in subsection (1) it shall so advise the Attorney General and the Attorney General may be heard by the court on the issue of the court's refusal to register.

(4) Where the court receives a provisional order under this section it shall take into consideration the criteria for support in section 39 of the Family Law Act.

(5) Where the party apparently is outside the territorial jurisdiction of the court and will not return, an officer of the court, on receipt of documents under subsection (1), shall return the documents to the Attorney General with available information respecting the whereabouts and circumstances of the party.

(6) At the conclusion of a proceeding under this section, the court may make a confirmation order in the amount it considers appropriate or make an order refusing support to a claimant.

(7) Where the court makes a confirmation order for periodic support payments, the court may direct that the payments begin from a date not earlier than the date of the provisional order.

(8) The court, before making a confirmation order in a reduced amount or before denying support, shall decide whether to remit the matter back for further evidence to the court that made the provisional order.

(9) Where a court remits a matter under subsection (8), it shall make an interim order for support against the respondent where appropriate.

(10) At the conclusion of a proceeding under this section, the court, or an officer of the court, shall

(a) forward a certified copy of the order to the court that made the provisional order and to the Attorney General;

(b) file the confirmation order, where one is made; and

(c) where an order is made refusing or reducing support give written reasons to the court that made the provisional order and to the Attorney General.

1988 c59 s6; 1989 c11 s5

Law of reciprocating jurisdiction

7. (1) Where the law of the reciprocating jurisdiction is pleaded to establish the obligation of the respondent to support a claimant resident in that jurisdiction, the court in the province shall take judicial notice of that law and apply it.

(2) An Act of a reciprocating jurisdiction may be pleaded and proved for the purposes of this section by producing a copy of the Act received from the reciprocating jurisdiction.

(3) Where the law of the reciprocating jurisdiction is not pleaded under subsection (1), the court in the province shall

(a) make an interim order for support against the respondent where appropriate;

(b) adjourn the proceeding for a period not exceeding 90 days; and

(c) request the Attorney General to notify the appropriate officer of the reciprocating jurisdiction of the requirement to plead and prove the applicable law of that jurisdiction if that law is to be applied.

(4) Where the law of the reciprocating jurisdiction is not pleaded after an adjournment under subsection (3), the court shall apply the law of the province.

(5) Where the law of a reciprocating jurisdiction requires the court in the province to provide the court in the reciprocating jurisdiction with a statement of the grounds on which the making of the confirmation order might have been opposed if the respondent were served with process and had appeared at the hearing of the court in the province, the Attorney General shall be considered to be the appropriate officer of the court for the purpose of making and providing the statement of the grounds.

1988 c59 s7

Application of Act

8. (1) This Act applies to provisional orders and confirmation orders with the necessary modification to proceedings, except under subsection (5), for the variation or rescission of registered orders.

(2) This section does not

(a) authorize a Provincial Court judge to vary or rescind a registered order made in Canada by a federally appointed judge; or

(b) allow a registered order originally made under a federal Act to be varied or rescinded except as authorized by a federal Act.

(3) Notwithstanding subsection (2), a Provincial Court judge may

(a) make a provisional order to vary or rescind a registered order made in Canada under a provincial Act by a federally appointed judge; or

(b) confirm and enforce an order filed under section 6 made in Canada under a provincial Act by a federally appointed judge.

(4) A registration court has jurisdiction to vary or rescind a registered order where both claimant and respondent accept its jurisdiction.

(5) Where the respondent is ordinarily living in the province a registration court may, on application by the claimant, vary or rescind a registered order.

(6) A registration court may make a confirmation order for the variation or rescission of a registered order where

(a) the respondent is ordinarily living in the province;

(b) the claimant who initiated the application for variation or rescission in a reciprocating jurisdiction is ordinarily living in the reciprocating jurisdiction;

(c) a certified copy of a provisional order of variation or rescission made by a court in a reciprocating jurisdiction is received by the registration court through the Attorney General; and

(d) the respondent is given notice of the proceeding and an opportunity to appear.

(7) A registration court may, on application by the respondent, make a provisional order varying or rescinding a registered order where

(a) the respondent is ordinarily living in the province; and

(b) the claimant is ordinarily living in a reciprocating jurisdiction in which the order was first made,

and section 4 applies, with the necessary changes, to the proceeding.

(8) A registration court may, on application by the respondent, vary or rescind a registered order where

(a) the respondent is ordinarily living in the province;

(b) the claimant is ordinarily living in a reciprocating jurisdiction other than the jurisdiction in which the order was first made; and

(c) the registration court, in the course of the proceeding, remits the matter to the court nearest to the place where the claimant lives or works for the purpose of obtaining evidence on behalf of the claimant,

or where

(d) the respondent is ordinarily living in the province;

(e) the claimant is not ordinarily living in a reciprocating jurisdiction; and

(f) the claimant is given notice of the proceeding.

(9) Where a claimant ordinarily living in the province applies for a variation or rescission of a final order and the respondent is apparently ordinarily living in a reciprocating state, the court may make a provisional order of variation or rescission and section 4 applies with the necessary changes to the proceeding.

(10) A registration court may make a confirmation order for the variation or rescission of a registered order where

(a) the respondent who initiated the application for variation or rescission in a reciprocating jurisdiction is ordinarily resident in the reciprocating jurisdiction;

(b) the claimant is ordinarily resident in the province;

(c) a certified copy of a provisional order of variation or rescission made by a court in the reciprocating jurisdiction is received by the registration court through the Attorney General; and

(d) the claimant is given notice of the proceeding and an opportunity to appear.

1988 c59 s8; 1994 c28 s22

Variation of order

9. Where an order originally made in the province is varied or rescinded in a reciprocating jurisdiction under the law in that jurisdiction corresponding to section 8, the order shall be considered to be so varied or rescinded in the province.

1988 c59 s9

Registered order

10. (1) The registration court has jurisdiction to enforce a registered order notwithstanding that the order

(a) was made in a proceeding in respect of which the registration court would have had no jurisdiction; or

(b) is of a kind that the registration court has no jurisdiction to make.

(2) The provisions of the Family Law Act and theSupport Orders Enforcement Act for the enforcement of support orders apply, with the necessary changes, to registered orders and interim orders made under this Act.

(3) A registered order has, from the date it is filed or considered to be registered, the same effect as if it had been a final order originally made by the registration court and may, both with respect to arrears accrued before registration, and with respect to obligations accruing after registration, be enforced, varied or rescinded as provided in this Act.

(4) Where a registered order is filed with the Supreme Court it may be enforced as if it were an order of that court.

(5) Where a proceeding is brought to enforce a registered order, it is not necessary to prove that the respondent was served with the order.

(6) Where a registered order is being enforced and the registration court finds that the order has been varied by a court after the date of registration, the registration court shall record the fact of the variation and enforce the order as varied.

1988 c59 s10

Right of province

11. Where the province, another jurisdiction or a political subdivision or official agency of the province or another jurisdiction is providing or has provided support to a claimant, it has, for the purpose of obtaining reimbursement or for the purpose of obtaining continuing support for the claimant, the same right to bring proceedings under this Act as the claimant.

1988 c59 s11

Official to appear in court

11.1 An official of the Department of Social Services may appear in Provincial Court on behalf of the province or as agent for a claimant making an application for support where that claimant is a person in receipt of benefits under the Social Assistance Act .

1994 c42 s2

Attorney General shall enforce order

12. (1) The Attorney General shall, on written request by a claimant or an officer or court of a reciprocating state, take reasonable measures to enforce an order made or registered under this Act.

(2) On receipt of a document for transmission under this Act to a reciprocating jurisdiction, the Attorney General shall transmit the document to the appropriate officer of the reciprocating jurisdiction.

(3) The Attorney General may, in writing, authorize a person to perform or exercise a power or duty given to the Attorney General under this Act.

(4) The Attorney General may authorize the Director of Support Enforcement under theSupport Orders Enforcement Act to perform or exercise a power or duty given to the Attorney General and to enforce registered orders using the remedies available under the Support Orders Enforcement Act.

1988 c59 s12

Interpretation of foreign order

13. (1) Where a document signed by a presiding officer of the court in a reciprocating jurisdiction or a certified copy of the document is received by a court in the province through the Attorney General, the court in the province may consider the document to be a provisional order or a final order, according to the tenor of the document, and proceed accordingly.

(2) Where in a proceeding under this Act a document from a court in the reciprocating jurisdiction contains terminology different from the terminology of this Act or customarily in use in the court in the province, the court in the province shall give a broad and liberal interpretation to the terminology so as to give effect to the document.

(3) For the purpose of this Act, it shall be presumed, unless the contrary is established, that procedures taken in a reciprocating jurisdiction have been regular and complete and that the court making an order in a reciprocating jurisdiction had jurisdiction to do so and that the jurisdiction is recognized under the conflict of laws rules of the province.

1988 c59 s13

Currency and translation

14. (1) Where confirmation of a provisional order or registration of a final order is sought and the documents received by a court refer to amounts of support or arrears not expressed in Canadian currency, an officer of the court shall first obtain from a bank a quotation for the equivalent amounts in Canadian currency at a rate of exchange applicable on the day the order was made or last varied.

(2) The amounts in Canadian currency certified on the order by the appropriate officer of the court under subsection (1) shall be considered to be the amounts of the order.

(3) Where an order or other document received by a court is not in English, the order or other document shall have attached to it from the other jurisdiction a translation approved by the court and the order or other document shall be considered to be in English for the purposes of this Act.

1988 c59 s14

Appeal

15. (1) A claimant, respondent or the Attorney General may appeal a ruling, decision or order of a court in the province under this Act and the Family Law Act applies, with the necessary changes, to the appeal.

(2) A person living in the reciprocating jurisdiction and entitled to appear in the court in the reciprocating jurisdiction in the proceeding being appealed from, or the Attorney General on that person's behalf, may appeal within 75 days after the making of the ruling, decision or order of the court in the province appealed from.

(3) A person responding to an appeal under subsection (2) may appeal a ruling, decision or order in the same proceeding within 15 days after receipt of notice of the appeal.

(4) The Attorney General may respond to an appeal under subsection (2) and may appeal a ruling, decision or order in the same proceeding within 15 days after receipt of notice of the appeal, and he or she may act on behalf of a person living in a reciprocating jurisdiction who is responding to an appeal under subsection (3).

(5) An order under appeal remains in force pending the determination of the appeal, unless the court appealed to otherwise orders.

1988 c59 s15

Spouses as witnesses

16. (1) In a proceeding under this Act, spouses are competent and compellable witnesses against each other.

(2) 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 shall, unless the contrary is proved, be proof of the appointment, signature and authority of the person who signed it.

(3) Written statements sworn or affirmed by the maker, depositions or transcripts of evidence taken in a reciprocating jurisdiction may be received in evidence by a court in the province under this Act.

(4) For the purposes of proving default or arrears under this Act, a court may receive in evidence a sworn or affirmed document made by a person, deposing to have knowledge of, or information and belief concerning, the fact.

1988 c59 s16

Sworn or affirmed statement

17. A registration court or an officer of it shall, on reasonable request of a claimant, respondent, the Attorney General, an officer of a reciprocating jurisdiction or a court of the state, provide a sworn or affirmed itemized statement showing with respect to support under an order

(a) amounts that became due by the respondent during the 24 months preceding the date of the statement; and

(b) payments made through the court by or on behalf of the respondent during that period.

1988 c59 s17

Respondent in other jurisdiction

18. Where an officer of a court in the province believes that a respondent under a final order or a registered order has stopped living in the province and is living in or proceeding to another jurisdiction, the officer shall inform the Attorney General and the court that made the order of information he or she has respecting the whereabouts and circumstances of the respondent and, on request by the Attorney General, an officer of the court that made the order or the claimant, shall send to the court or person indicated in the request

(a) 3 certified copies of the order as made in or filed with the court in the province; and

(b) a sworn or affirmed certificate of arrears.

1988 c59 s18

Reciprocating jurisdiction

19. The Lieutenant-Governor in Council may, where satisfied that laws are or will be in effect in a state for the reciprocal enforcement of orders made in the province on a basis substantially similar to this Act, by regulation declare that state to be a reciprocating jurisdiction.

1988 c59 s19

Other remedy

20. This Act does not impair another remedy available to a claimant or another person, the province, another jurisdiction or a political subdivision or official agency of the province or another jurisdiction.

1988 c59 s20