Variation of Foreign Child Support

Variation of Foreign Child Support

Variation of Foreign Child Support in Canada

In Canada, varying a foreign child support order isn’t as straightforward as domestic cases. If the original support order was issued outside Canada, it usually must be varied through the Interjurisdictional Support Orders Act (ISOA). This act enables provinces, such as Ontario, to collaborate with other jurisdictions to modify existing child support terms. However, Canadian courts generally can’t override valid foreign orders unless specific exceptions apply, such as when the foreign order is silent on child support, or the other country isn’t a recognised partner under the ISOA. If you’re facing a situation involving foreign support orders, it’s essential to seek legal guidance to ensure compliance and proper filing under Canadian law.

Binding Nature of Foreign Orders:

A valid foreign support order remains binding on the parties and should not coexist with a conflicting Ontario order. This is a matter of public policy. Where child support is included in a foreign divorce order, any variation must proceed under the Interjurisdictional Support Orders Act (ISOA).

1. Limits on Ontario Courts’ Jurisdiction:
   • Ontario courts generally lack the authority to vary foreign divorce orders with child support provisions under the Family Law Act. Variations must follow inter-jurisdictional support statutes.
   • Respect for foreign judgments aligns with the principle of comity.
2. Exceptions Allowing Ontario Jurisdiction:
   • The Court of Appeal in Cheng v. Liu, 2017 ONCA 104, established that Ontario courts may adjudicate child support if no foreign divorce order addresses the issue.
   • The following exceptions allow for original child support orders in Ontario despite a foreign divorce order:
     • Silent Foreign Divorce Order: If the foreign order omits child support provisions, Ontario courts can issue an original order
     • Non-Reciprocating Jurisdiction: If the foreign jurisdiction is not reciprocating under the Interjurisdictional Support Orders Act (ISOA), Ontario courts have jurisdiction.
     • Flagrant Non-Compliance: Courts may intervene if the foreign order is being flagrantly ignored, but compliance negates this
     • Material Change in Circumstances: Significant changes that affect custody or access may justify revisiting child support, provided it is not an attempt to forum-shop.
3. Mandatory Use of ISOA for Variations:
   • Any variation to a foreign divorce order with child support terms must proceed through the ISOA. No alternative legal framework is available in Ontario for such cases.

Conclusion:

Ontario courts respect foreign support orders but can exercise jurisdiction in limited, clearly defined circumstances, primarily when the foreign order is silent on child support or significant changes in circumstances arise. Variations to foreign orders require adherence to the ISOA process.

DISCLAIMER: The information provided in this Blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this Blog.

Frequently Asked Questions

1. Can Ontario courts vary a foreign child support order? 2. Are there exceptions where Ontario courts can intervene? 3. What is the Interjurisdictional Support Orders Act (ISOA)? 4. How do I apply to vary a foreign support order under ISOA? 5. What if the foreign jurisdiction is not reciprocating under ISOA?