Current Uniform Acts

Enforcement of Foreign Judgments, Implementation of Canada-France Convention 1997

OPTION 2: A specific act with substantive provisions

This section is aimed at proposing to the ULC a new approach to the implementation of conventions in Canada. This approach would consist of the drafting of a specific act with all the necessary implementing provisions in a "stand-alone" format. The sections of such an act would mirror the text of those provisions in the convention to which it is necessary to give force of law in the enacting jurisdiction.

This implementing technique is recognized in the legal systems of countries, such as Canada, that have followed the British tradition regarding the relationship between international law and domestic law and the incorporation of treaties into domestic law. A number of jurisdictions have used that technique with several conventions already and Canadian courts have been ready to give effect to the intent of the legislature. The leading authority on this point is the 1994 S.C.C. decision in Thomson.v. Thomson relating to the Hague International Child Abduction Convention.

Option 2 raises a number of stimulating questions for the consideration of the ULC as it proposes a new approach for the implementation of conventions. In addition, this option might be linked to the discussion also to held in August 1997 on the project on the general enforcement of foreign judgments as it could be a suitable substitute to a uniform act on general enforcement of foreign judgments.

This possibility would be particularly welcome in the context of the enforcement of maintenance orders. For that reason, the following text already incorporates such an extension. The federal/provincial/ territorial Family Law Committee has been consulted on the matter. See the note at the end of this discussion paper.

Uniform Recognition and Enforcement of Judgments in Civil and Commercial Matters and Legal Cooperation in Maintenance Matters Act

Comment: This title is only provisional and may be modified in order to avoid confusion or repetition. Such a long title can be understood in the context of the proposed act which is intended to give force of law not only to conventions on enforcement of foreign judgments but also to arrangements for the enforcement and recovery of maintenance with countries designated by the enacting jurisdiction along the lines of the Canada-France Convention.

Since the primary purpose of the Act is to implement the Canada-France Convention, without being limited to it, the drafting of the sections of the act are modelled as closely as possible on those provisions of the Convention which impose obligations on Canadian jurisdictions and which have to become part of their laws. For this reason, a number of articles are not reproduced here as they do not meet these requirements. It is the case with articles 8 and 9 of the Convention which deal with the exception to the obligation of France to enforce judgments rendered in other European countries as well as articles on conflicts between conventions (article 17), federal State clauses (article 20) and final clauses.

Scope of this Act

1 (1)    This Act shall apply to judgments in civil and commercial matters, including judgments in maintenance matters, status of nature persons, matrimonial matters, and custody and access to children.

(2)    This Act shall not apply to judgments in the following matters:
(a) recovery of taxes, duties, fines or monetary penalties;
(b) bankruptcy, insolvency or the winding up of companies or other artificial persons;
(c) legal capacity of natural persons;
(d) guardianship of children involving public authorities;
(e) management of the affairs of persons not capable of managing their own affairs; and
(f) succession to or the administration of the estates of deceased persons.

Comment: The scope of application of the act is limited in a manner similar to article 1 of the Canada-France Convention (CFC). These rules largely meet the Canadian rules on recognition and enforcement.

Part I:    Judgments other than maintenance

Comment: It would appear desirable to deal with the conditions for the recognition and enforcement of judgments in general civil and commercial matters, including family law matters, as a whole in Part I, subject to the exception for maintenance orders which are dealt with in a separate part as in CFC.

Recognition of judgments

2. Judgments, other than in maintenance matters, rendered by a court of a designated country, shall be recognized if the following conditions are met:
(a)     the judgment was rendered by a court having jurisdiction pursuant to section 4 or the rules recognized in the law of the enacting jurisdiction;
(b)     the judgment is no longer subject to appeal in the designated country and is enforceable, and in matters of custody of and access to children, even on an interim basis;
(c)     in the case of a default judgment, the defendant was lawfully served or received notice of the commencement of the proceedings in sufficient time to present a defence;
(d)     the order is not contrary to public policy;
(e)    no proceedings between the same parties, based on the same facts and having the same purpose,

(i) are pending before a court of the enacting jurisdiction that was seized of the matter prior to it being brought before the court of the designated country;
(ii) have resulted in an order rendered by a court of the enacting jurisdiction, or
(iii) have resulted in an order rendered by a court of a third country that meets the conditions for its recognition and enforcement in the enacting jurisdiction

Comment: It would appear important to provide for the recognition of judgments covered by the act independently from their enforcement, to reflect the obligations created under article 4 of CFC with respect to automatic recognition. In most Canadian jurisdictions recognition is often combined with enforcement proceedings altough enforcement cannot be granted to a judgment that has not been recognized. In a number of cases it it may be sufficient for a foreign judgment creditor in matters such as status of natural persons only to seek recognition of his or her judgment. The conditions for recognition are compatible with those under Canadian law.

Enforcement of judgments

3. Judgments that are recognized may be registered for the purpose of their enforcement if the conditions listed in section 2 are met.

Comment: This section supplements the previous section in recognition and deals separately with the enforcement of judgments covered by this Part of the act. Conditions for enforcement, similar to those for recognition, are not repeated here since a reference to section 2 would suffice.

Rules on jurisdiction

4. For the purpose of articles 2 and 3, the court that has rendered the judgment in the designated country shall be deemed to have jurisdiction in addition to any other applicable rule if, in particular,

(a)    the defendant had his or her habitual residence, if a natural person, or its principal place of business, if an articifial person, in that country when the proceedings were started;
(b)     the defendant had a place of business or branch in that country when the proceedings were started and was served in that country in connection with a dispute related to the activities of that place of business or branch;
(c)     in an action for damages in tort, the wrongful act occured in that country;
(d)     the claim is related to a dispute in connection with rights in rem in immovable property located in that country;
(e)     the defendant expressly submitted in writing to the jurisdiction of the court;
(f)     the defendant appeared without challenging the court's jurisdiction or presented a defence on the merits;
(g)     the contractual obligation that is the subject of the dispute was or should have been performed in that country;
(h)     for any question related to the validity or administration of a trust established in that country or to trust assets located in that country, the trustee, settlor or beneficiary had his or her habitual residence or its principal place of business in that country;
(i)     in matters of custody of access to children, the child had his or her habitual residence in that country at the commencement of the proceedings on the merits;
(j)     in matrimonial matters, both spouses had their last common habitual residence in that country.

Comment: As in article 5 of CFC, this Part should include a list of grounds of jurisdiction which would be deemed to be examples of a "real and substantial connection" in support of the foreign court's jurisdiction. Grounds mentioned in this section are generally acceptable under Canadian rules. However the list is not intended to be exhaustive and could be supplemented by other grounds also deemed acceptable in the enacting jurisdiction.

Application for registration

5(1)     Judgments to be enforced shall be registered on the application of any interested party to the [court to named by the enacting jurisdiction].
5(2)     The procedure for registration shall be [described by regulation or governed by the rules set forth in {applicable statute}].
5(3)     The registering court shall not examine the merits of the judgment.
5(4)     Unless the defendant presents proof to the contrary, the findings of fact on which the court that has rendered the judgment has based its jurisdiction shall be presumed valid.

Comment: This section only deals with the minimal requirements for the enforcement proceedings of judgments rendered in designated countries as set out in article 6 of CFC. As mentioned in section 5(2), relevant rules on procedure can be found in existing acts on general enforcement of judgments, the reference to which may be added if needed. This would include rules on production of documents and translation as long as they comply with article 7 of CFC. Other existing rules, such on the effects of the recognized or enforced foreign judgment, could also apply.

Designation of countries

6. A country may be designated by [regulation] [order] for the purpose of the recognition and enforcement of orders under this Part [if a convention exists with that country].

Comment: This section would enable a jurisdiction to implement more than one convention,in addition to CFC, by designating which countries to which the conditions of recognition and enforcement of judgments other than maintenance will apply under this act. The condition for such designation could be the existence of a convention. This phrase is between brackets as it may be possible that other conditions would be attached to the designation, for example if the act were to cover enforcement of all foreign judgments.

Part II: Recognition and enforcement of maintenance

Comment: It would appear desirable to treat maintenance separately for two reasons.

First, the Canada-France Convention deals with maintenance in a separate chapter, c. IV, which is aimed to establish a framework of cooperation for the recovery of maintenance and also to provide for common rules on jurisdiction, recognition and enforcement.

Second, it might be convenient to consider such a scheme for countries, mostly with a civil law background, which are seeking maintenance arrangements but do not meet the conditions under REMO/RESO legislation. In addition, it might not be appropriate to develop a full convention similar to CFC with all such countries.

Thus a separate part on maintenance would enable an enacting jurisdiction to extend the benefit of maintenance orders enforcement provisions to countries without the requirement of a convention as well as to countries with whom a convention could be finalized in the coming years along the lines of CFC.

Definitions

7. In this Part,

"authority" means the [Attorney General or a person authorized by the AG to act under this part] [the authority identified in the arrangement];

"claimant" means a person who has or is alleged to have a right to recover maintenance on the basis of an order rendered by a competent court;

"maintenance" means payment for support granted to children or the spouse who have their habitual residence in [the enacting jurisdiction] ;

"order" means an order establishing or varying maintenance;

["habitual residence" means habitual residence in Canada.]

Comment: Definitions in this part may be particularly desirable in light of the meaning of the words claimant, maintenance, and order under article 11 of CFC. In addition, the "authority" that will be designated responsible in the enacting jurisdiction for the recovery of maintenance, as required by article 10(3) of the Convention, could be identified either in this section of definitions or, as an alternative, in the arrangement to be concluded between the enacting jurisidiction and France on the basis of article 26 of CFC.

It could also be important to include a definition of habitual residence to expand its territorial scope to the whole of Canada so as to reflect the specific rule of interpretation of such terms for maintenance matters under article 20(c) of the Convention. This definition is put between brackets as it may be redundant in light of section 8 on jurisdiction.

Jurisdiction of the court

8. A court is considered competent if
(a)    both the claimant and the respondent were habitually resident in [Canada or in] the designated country where the order was made; or
(b)     the respondent, who was not habitually resident in [Canada or in] the designated country, submitted clearly to the jurisdiction of the court.

Comment: The act should include a provision like section 8 which would establish the bases of jurisdiction in maintenance matters. This would be part of the conditions for recognition and enforcement of maintenance orders between Canada and countries designated under section 17. Section 8, which is modelled on article 11(3) of the CFC, would presumably also be acceptable to other countries because it would resolve issues raised by the enforcement, particularly in civil law countries, of provisional orders and the need for confirmation hearings under REMO/RESO.

The reference to Canada is put between brackets in light of the comments made under the definitions section with respect to the definition of "habitual residence" (section 7). If no definition of the words "habitual residence" is included, the words "in Canada" should be incorporated in section 8. This would allow one to take into account various types of maintenance orders, including variation orders covered under this Part (see section 7), so as not to limit the scheme to orders originally made in the enacting jurisdiction and to facilitate the enforcement of Canadian orders abroad. However, if section 8 were read only to verify the jurisdictionof a foreign court on an application to recognize and enforce its orders in the enacting jurisdiction, the words "in Canada" might be dropped.

Application for assistance

9. (1)    The claimant may apply for assistance to the authority [in the enacting jurisdiction] where the order was made in order to have the order enforced in a designated country.
(2)    The application for assistance shall be transmitted to the authority of a designated country where the order has to be enforced if the application contains information and documents [prescribed by regulation] [identified in the arrangement].

Comment: This section would clarify how a designated country provides assistance for the recognition and enforcement of maintenance orders rendered in the enacting jurisdiction, along the lines of article 14 of CFC. It would appear sufficient to refer to the need to apply for assistance with the local authority and its transmission to the foreign country

The details regarding the application itself and other requirements could be provided either by way of regulation or in the complementary arrangement to be concluded between the enacting jurisdiction and the other country (e.g.France.)

Reception of an application

10. Upon receiving an application from an authority of a designated country, if the application contains the information and documents [prescribed by regulation] [identified in the arrangement], the authority in the enacting jurisdiction shall take the appropriate measures :

(a)    to locate the debtor; and
(b)    to initiate proceedings on behalf of the claimant for the recognition and enforcement of the order.

Comment: This section would ensure that the responsible authority for the recovery of maintenance in the enacting jurisdiction fulfills its primary duties as set out in article 12 (a) and (b) of CFC, once an application for assistance is received from a designated country for the purpose of the recognition and enforcement of an order rendered there. The details of such an application could be provided either by regulation or in the arrangement as under the previous section.

Recognition

11. An order shall be recognized if the following conditions are met:
(a)    the order was issued by a competent court pursuant to article 8;
(b)    the order is enforceable in the designated country even on an interim basis;
(c)    in the case of an order obtained by default, the respondent was lawfully served or received notice of the commencement of the proceedings in sufficient time to present a defense;
(d)    the order is not contrary to public policy;
(e)    no proceedings between the same parties, based on the same facts and having the same purpose,
(i) are pending before a court of the enacting jurisdiction that was seized of the matter prior to it being brought before the court of the designated country;
(ii) have resulted in an order rendered by a court of the enacting jurisdiction, or
(iii) have resulted in an order rendered by a court of a third country that meets the conditions for its recognition and enforcement in the enacting jurisdiction.

Comment: This section provides conditions for the recognition of maintenance orders covered by this Part along the lines of section 16 of CFC.

Enforcement

12. An order that has been recognized may be registered for the purpose of its enforcement if the conditions set forth in section 11 are met.

Comment: This section provides for the enforcement of the maintenance order once recognized on the basis of the conditions provided for its recognition as stated in article 16 of CFC.

Registration

13(1)    A certified copy of the order to be enforced shall be filed for registration with the court designated in the enacting jurisdiction.
(2)    Notice of the registration shall be given to the respondent.
(3)    The respondent within one month after receiving notice may apply to the registering court to set the registration aside in accordance with the conditions for enforcement referred to in section 11.
(4)     The registering court shall not examine the merits of the order.
(5)     Unless the respondent presents proof to the contrary, the findings of fact on which the court of the designated country based its jurisdiction shall be presumed valid.

Comment: This section on registration is adapted from the relevant rules of the REMO/RESO legislation as well as in CFC (article 15) for the purpose of registration in the enacting jurisdiction of a foreign maintenance order rendered in a designated country. It would not appear convenient to simply refer to the registration procedure rules set under the REMO/RESO scheme.

Compulsory enforcement

14. The authority [in the enacting jurisdiction] shall take all appropriate measures to enforce an order registered under this Part.

Comment: This section reflects one of the duties imposed on the authority responsible for the recovery of maintenance under article 12(c) of CFC. It is partially drafted on the basis of an equivalent REMO/RESO provision.

Transfer of money recovered

15. The authority [in the enacting jurisdiction] shall take appropriate measures to transfer to the claimant sums of money recovered once the order has been enforced.

Comment: This section reflects another duty imposed under article 12, in this case 12(d).

Costs

16. The authority [in the enacting jurisdiction ] shall not impose any charges on the claimant or the designated country in relation to proceedings under this Part.

Comment: This section would also appear necessary in light of article 13.2 of CFC.

Designated country

17. A country may be designated by [regulation] [order] for the purpose of the recognition and enforcement of orders under this Part if the following conditions are met:
(a)    an authority is responsible for the recovery of maintenance;
(b)    the conditions for recognition and enforcement in that country are similar to those provided under this Part.

Comment: This section would enable the enacting jurisdiction to designate countries to which this Part would apply. In contrast to the REMO/RESO legislation, it would not be necessary to conduct a review of the maintenance legislation in those countries in order to establish the similarities with the REMO/RESO scheme before such countries be considered reciprocating jurisdictions. This designation could be established on the basis of the principles found in CFC, i.e., the existence of a responsible authority and the compliance with requirements regarding recognition and enforcement, as reproduced in this Part. These principles could be extended to other countries under this Part, regardless whether a treaty existed with them.

Part III: General/ Miscellaneous provisions

Comment: This Part is intended to give force of law to any provisions in CFC that would apply to judgments in civil and commercial matters as well as to maintenance orders, such as those under Chapter V on general clauses. The decision on whether additional provisions are needed in this Part would be made after an examination of existing laws in each enacting jurisdiction .

Currency conversion and interest

18.(1) The conversion into the currency of Canada of the sum payable into the currency of a designated country shall be done at the exchange rate on the day the judgment is registered under Part I or II as ascertained from any branch of any chartered bank.

(2) The determination of the interest payable at the time of conversion, if not otherwise provided for in the judgment, shall follow the rules set forth in [identify applicable law].

Comment: This section reflects the rules in article 18 of CFC.

Limitation period of registration proceedings

19. (1) The time within which any interested party may apply for registration of a

judgment under Part II, except in maintenance matters and matters of custody and access to children, is within six years after the date of the judgment.

(2) Judgments in maintenance matters and in matters of custody and access to children may be registered at any time.

Comment: This section reflects the rules in article 19 of CFC.

Dates of judgments to which the Act applies

20(1)    Except in the case of judgments in maintenance matters, status of natural persons, and custody and access to children.
this Act applies to judgments rendered after its coming into force.

(2)     In the case of judgments in maintenance matters, status of natural persons, and custody and access to children, the Act applies regardless of the date on which these judgments were rendered.

Comment: This section reflects article 2 of CFC.

Part IV: Final provisions

Regulations

21. The [Lieutenant Governor in Council] may make regulations necessary to carry out the intent and purpose of this Act.

Proclamation
22. [enacting jurisdiction to decide]

Comment: These are standard provisions to be incorporated at the end of the proposed act.

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