The Saskatchewan Advocate
A Practical Guide to ISO Applications
Jennifer Pereira • Robertson Stromberg Pedersen LLP • Saskatoon
Inter-jurisdictional Support Order ("ISO") applications
are brought when a claimant seeks support or variation of
support from a party who resides in another jurisdiction.
It is normally used where the parties were never married
because the Divorce Act typically requires a provisional
application be made.1 There is some case law on the workings
of this legislation, but most available guidance comes
from the provisions of the The Inter-jurisdictional
Support Orders Act ("ISO Act") itself. Unfortunately even
the ISO Act falls short in providing guidance in particular
instances. This article is intended to fill those gaps and
provide general advice to litigators who must rely on written
advocacy to achieve results for their clients.
Applications when the payor lives in another Canadian Province
When no support order exists (or where a party wants to
vary an existing order), a Saskatchewan resident may start
a proceeding by completing an application in accordance
with section 5(2) of the ISO Act, and submitting it to the
designated authority in Saskatchewan - the ISO Unit of the Maintenance Enforcement Office.
The application package must be submitted, after which
completed applications will be sent to the reciprocating
jurisdiction by the ISO Unit, and the respondent will be
notified of the application against them, and told to file a
package of sworn documents at court. A claimant's application
is dealt with and decided on by a court in the reciprocating
jurisdiction. On the court date, the court will consider
all documentary evidence, and may hear sworn evidence
from the respondent, if they are present. An order
will then be made. Claimants will receive a copy of the
order from the ISO Unit. If a judge requests more information
from an applicant before making an order, the
court in the reciprocating jurisdiction will make a
'Request for Further Information', saying what it needs
from the claimant, who must provide more information if
requested.2 It is therefore important to include as much
information and supporting documentation as is possible
in your application.
Certain ISO applications may require you to submit up
to 14 forms in support of the relief you request. Rather
than provide piecemeal evidence to the Court across several
forms, file a single affidavit on behalf your client and
reference the individual paragraph numbers from his or
her affidavit in response to questions set out in the applications.
This allows the judge in the reciprocating jurisdiction
to read your client's story in one, concise document
and keeps your application more streamlined. This
will also save you effort in the event that the reciprocating
jurisdiction requires a provisional order. You will be able
to reuse your client's affidavit in support of that application
(see below). Further, I always include a table of contents
of my materials so that the registrar and judge can
see, in a glance, what forms and supporting documentation
are being filed.
Applications when Payor lives in another Country
ISO applications may be made to any of the Canadian
Provinces or Territories. The ISO Act also applies to all
jurisdictions which Saskatchewan has recognized as having
similar maintenance enforcement laws.
Saskatchewan has reciprocal agreements with a number
of foreign countries found in the Regulations. Foreign
orders may be made in these jurisdictions, through the regular
ISO application process. Parties to a foreign order
may apply to set aside registration of the order, under section
19 of the ISO Act, if a court determines that a party to
the order did not have proper notice or a reasonable opportunity
to be heard on the matter, the foreign order is contrary
to Saskatchewan public policy, or the court that made
the foreign order did not have the jurisdiction to do so.
Regulations are also in place respecting foreign currency
conversions.
It is important when considering bringing an ISO application
that you first contact the ISO Unit to determine
what additional requirements, if any, the reciprocal jurisdiction
requires before receiving an application. For
example, the country of New Zealand requires ISO applications
to be accompanied by a Provisional Order from
this jurisdiction and a Statement of Grounds Upon Which
Provisional
Maintenance Order
Might Have Been
Opposed.
In order to obtain a
provisional order in
Saskatchewan, a memorandum
to judge seeking
the relief requested
via the ISO Act must be
filed at the Court of
Queen's Bench (Family Law Division), along with an
accompanying affidavit and any other supporting materials.
Section 24 of The Family Maintenance Act allows for
the granting of a provisional order in the absence of the
respondent and without service of notice on him or her or
proof of his or her ability to pay. If granted, the provisional
order and reasons for judgment must be filed with the
ISO application.
The Statement of Grounds Upon Which Provisional
Maintenance Order Might Have Been Opposed is prepared
by the ISO office. It is a document, signed by an
ISO officer, that sets out the relevant grounds and legislation
that might prevent an applicant from obtaining a provisional
order. Relevant grounds are where the child does
not reside with the claimant, where either party does not
fit the definition of parent in section 2 of the Family
Maintenance Act, where the Respondent is not a resident
of a reciprocating jurisdiction pursuant to section 7(1) of
the ISO Act, where the respondent does not have the
means to pay child support pursuant to section 3 of The
Family Maintenance Act or where the child does not fit the
criteria set forth in section 4 of The Family Maintenance
Act.
Process when a Client receives Notice as a Respondent under the ISO Act
Clients who receive notice of a claim under the ISO Act
will be required to file documents and/or attend to court,
to respond to the application. Subsection 9(1) of the Act
states that a respondent, who is ordinarily a Saskatchewan
resident shall be served a copy of the support application
by the designated authority along with a notice requiring
the Respondent to appear and provide required information
and documents. A good example of the process that
ISO applications entail may be found in the case of
MacKinnon v. MacKinnon, 2007 SKQB 270, (Sask. Q.B.),
where a mother appeared as a respondent in a
Saskatchewan court, after receiving an ISO application
from a father in North Carolina.
When the application is
before the court, the elements
set out in section 10 of the
Act, (section 30 in the context
of variation applications),
shall be considered by the
court. These sections provide
that the court shall have consideration
to evidence provided,
and information and documents
from the reciprocating
jurisdiction. The Court may request additional documents
or information from a claimant in another jurisdiction, and
may adjourn a hearing, or make an interim order, pursuant
to section 10(2).3
General comments about all ISO Applications
In addition to simple applications for custody, support
and variation you may bring an ISO application for various
purposes including (i) to make determinations of
parentage; (ii) set obligations to maintain medical and/or
dental insurance coverage for children or claimants; (iii)
receive child support orders for children over the age of
majority; (iv) for determination of support under various
custody arrangements; (v) for determination of support
not in accordance with guideline amounts due to undue
hardship or when the respondent makes over $150,000 per
year. You may also seek orders for special expenses, and
orders for support of the claimant themselves. Further,
orders made under provincial legislation may be varied
under provincial ISO Acts.4
Ensure you think through both sided of your client's
argument before bringing an ISO application. For example, the decision of Langlois v. McManus (2006), 210
Man. R. (2d) 186 (Q.B.) illustrates an instance where an
applicant proposed a variation due to a change in circumstance
and a respondent raised a different change in circumstance
or, in essence, counter applied for a variation
for a different reason. In Langlois the payor wanted a
reduction in payments due to undue hardship. In the end,
because the payor was underemployed, the judge imputed
income pursuant to s. 19 of the Guidelines, and raised, not
lowered, the child support amount. In reaching this conclusion
Little J. stated, at para. 12, as follows:
When these matters were last before me in the spring
of 2005 I issued extensive oral reasons providing some
further background and history to these proceedings
and to explain why I was confirming the preceding
Provisional Order of Justice McDougall, with variation
(the Langlois matter), and why I was remitting the
ISO application (the Stefanishyn matter) for further
evidence. I also took the opportunity in those reasons
to indicate to Mr. McManus why he might wish to
consider abandoning his ISO application, or if he
chose to proceed why he should consider filing a brief
and/or retaining counsel in Manitoba to argue the matter.
He has done neither. At the end of the day, he has
elected to proceed with what, on my analysis, is insufficient
evidence to achieve the result he wants. Worse
than that (for him), Mr. McManus' child support obligation
in the Stefanishyn proceeding will actually rise
- not I am sure, the result he intended. This has happened
because I agree with the Director that imputation
of income is appropriate on the evidence I have
been given, and because my application of the Child
Support Guidelines table amount is therefore made
mandatory. [Emphasis added]
ISO applications are a lengthy process. Such an application
within Canada can take several months while international
applications can be exponentially longer. Make
your application with an eye to the future–that is if your
client's day-care costs will increase within 6 months, provide
that information to the court along with any supporting
information that you can provide. You do not want to
wait 6 months for an order that is out of date and requires
variation upon receipt.
Finally, as the ISO application process is intended to
make the transaction of such applications more efficient,
it can only succeed if your submissions are prepared in
such a way that focuses the Court upon the determinative
issues in the case, explains how those issues should be
determined, and why it should be determined in favour of
your client. With this in mind, include a brief of law in
your application that outlines the relevant law and facts.
This will go a long way in assisting the Court in arriving
at a decision. Finally, as you will rarely be provided the
opportunity to appear personally in an ISO application,
you must rely on your materials (forms, affidavits and
briefs) to persuade the court as to the merits of your
client's case. To succeed, your submissions must be presented
clearly, concisely, accurately and comprehensively.
Footnotes
1 Child support orders made under the Divorce Act may not be varied under the ISO Act, but will proceed pursuant to sections 17 and 18 of the Divorce Act.
2 See section 6(3) of the ISO Act. An example of such an order made in Saskatchewan can be found in Hogan v. Matthew, 2005 SKQB 249.
3 See, for example: Hogan v. Matthew, ibid. at para. 8.
4 Spytowsky v. Spytowsky, 2009 SKQB 292 at para. 11.
