Background:

The Interjurisdictional Support Orders (ISO) Act replaces the former Reciprocal Enforcement of Maintenance Orders (REMO) Act. It streamlines the process for obtaining, varying and enforcing support orders involving Albertans and parties who live in other jurisdictions. The ISO Act came into force in Alberta on January 31, 2003.

The purpose of the ISO Act

The ISO Act is a uniform statute that all Canadian jurisdictions have agreed to pass. The Act:

• allows parties residing in different jurisdictions to obtain and vary maintenance orders under provincial legislation more quickly and easily
• facilitates speedier enforcement of Canadian maintenance orders
• benefits families by increasing the likelihood of entitlement to maintenance.

Application of the ISO Act

The ISO Act will apply in situations where:

• one party (either the applicant or respondent) resides in Alberta, and the other party resides in another jurisdiction
• the applicant is bringing an initial application for maintenance, or an application to vary an existing maintenance order and
• the application is being made under provincial or territorial legislation, such as the Family Law Act.

The ISO Act does not apply to applications made under the Divorce Act.

Key differences between the REMO Act and the ISO Act

The ISO Act eliminates the two-step provisional order/confirmation hearing process in most cases. Matters are decided by one court hearing held in the respondent's jurisdiction.

Unless the respondent lives in a jurisdiction that is not a reciprocating jurisdiction or that requires a provisional order, there is no court hearing in the applicant's jurisdiction. An applicant in Alberta instead completes a support application (or a support variation application) and files it with the Alberta courts. The sworn application is then forwarded to the respondent's jurisdiction for a determination.

Where the respondent resides in Alberta and the claimant does not, the Alberta courts receive the claimant's support application package from another jurisdiction and schedule a hearing. The Alberta court will hear and decide the matter, relying on the claimant's sworn support application and any viva voce or affidavit evidence presented by the respondent.

The ISO Act provides a clear and consistent approach to choice of law. These provisions increase the likelihood of entitlement to maintenance. Additionally, appeal periods are increased under ISO to 90 days (from 75 days) for the appellant, and to 30 days (from 15) for the respondent.

Provisional orders and confirmation hearings

Provisional orders have not entirely disappeared under ISO. Where required by the jurisdiction where the respondent resides, a provisional order will still be granted. The reciprocating jurisdictions that require provisional orders are England, Scotland, Wales, Northern Ireland, Jersey, the Isle of Man and New Zealand. As of June 2006, the only Canadian jurisdicition that has not yet proclaimed its ISO legislation is Quebec.

There has also been no change to the procedure for applications under the Divorce Act. Where the applicant seeks a variation of an order involving a party who resides in another jurisdiction, the court in the applicant's jurisdiction will continue to grant a provisional order that may be confirmed by the respondent's jurisdiction.

Lastly, applications begun under the REMO Act before the proclamation of the ISO Act may be continued as if the REMO Act had not been repealed.

Court hearings under the ISO Act

The Provincial Court hears all ISO applications for support or support variations whenever that court has jurisdiction. The ISO Act provides that only the Court of Queen's Bench can vary an order granted by a federally appointed judge.

The role of legal counsel

Uniform court forms have been developed for use in Canada as ISO support and support variation applications. Applicants are able to obtain these forms from their province or territory of residence and can choose whether to obtain legal counsel's assistance to complete and swear the applications.

Applicants do not need to retain legal counsel to appear at court hearings on their behalf. There will be no court hearing in the applicant's jurisdiction under ISO and applicants are not expected to be represented at the court hearing in the respondent's jurisdiction. The support application procedure is specifically designed for those applicants who choose not to hire legal counsel in the other province or territory.

Authority of the court at ISO hearings in Alberta

An ISO hearing in Alberta allows an Alberta respondent to respond to the information contained in the out-of-province applicant's sworn support application package. The Alberta court hearing the application may make a support order, may adjourn the matter to a specified date with or without making an interim order, or may refuse to make an order. If the court refuses to make an order, the ISO Act requires that reasons be given for its decision. The Alberta court can also request further evidence from the applicant. Should this additional evidence not be received within 18 months, the application may be dismissed.

The ISO Act also attempts to address the delays posed for applicants where respondents, although they have been served, do not appear at the scheduled hearing or do not produce the required information or documents. The Act provides that in these cases, the court must make a support order based on the information supplied by the applicant and any inferences the court considers appropriate. The exception to this is where the court has no information about the respondent's financial or employment circumstances.

Enforcement of support

In addition to outlining procedures for obtaining or varying court orders where the parties reside in different jurisdictions, the ISO Act deals with the registration for enforcement in Alberta of orders granted in other jurisdictions.

Under the REMO Act, debtors living in Alberta were given a 30-day period to apply to set aside the registration in Alberta of any out-of-province maintenance order. This "grace period" is no longer available for orders granted within Canada, so that all Canadian support orders are enforceable immediately upon filing with the Alberta court. Under the ISO Act, only orders granted outside of Canada are unenforceable for 30 days after filing to allow the respondent an opportunity to set aside the registration of the order.

Alberta's reciprocating jurisdictions

Alberta has the same reciprocal enforcement agreements under the ISO Act that it had under the REMO Act. Reciprocal agreements exist with all other provinces and territories of Canada, the United States and the following other jurisdictions:

If an Alberta applicant wishes to vary a support order and the respondent no longer lives in a reciprocating jurisdiction, the ISO Act provides that the Alberta court can hear the variation application if the respondent has been given notice of the proceeding.

Additional information and court forms

MEP offers an information sheet on ISO to the public. The uniform court forms to be used for support applications and support variation applications, together with detailed instructions on how to complete these forms, are available through the Family Law Information Centres (FLIC). You may wish to check for additional information on FLIC's web site at www.albertacourts.ab.ca/familylaw.