Current Uniform Acts
Note on Family Law Implications
A consultation group of family law experts has reviewed these three options. Its report is attached to the English text of this paper. In short, the group preferred Option 1 because it is most likely to reflect faithfully the terms of the Convention. However, it would require some detailed work on the "arrangements" for the mutual legal assistance on maintenance orders. It was also less flexible than Option 2 in adding new countries, particularly civil law countries, to the list. The group thought it unlikely that Canada would soon have conventions with a significant number of countries, but Option 1 applied only where such conventions exist. The long-term solution was in a revision to the REMO/RESO legislation, which was on the table for the federal-provincial-territorial committee on family law.
FAMILY LAW CONSULTATION GROUP REPORT TO THE UNIFORM LAW CONFERENCE ON OPTIONS FOR THE IMPLEMENTATION OF THE CANADA-FRANCE CONVENTION
Activities of the Consultation Group
The group was formed, at the request of the federal Department of Justice, in order to provide the ULC with formal input from family law experts and representatives as the Conference conducts its discussions of the options presented for the draft implementing act for the Canada-France Convention. It is crucial that there be family law consultation in the process as, unlike the Canada-U.K. Convention, the Canada-France Convention will involve provincial and territorial authorities in the on-going recognition and enforcement of maintenance and family support orders from France. In addition, since the convention provides for the establishment of a governmental authority as a transmitting body, provincial authorities will also be required under the terms of the Convention to ensure that maintenance orders sent from Canada to France meet the prima facie requirements of the Convention.
The Consultation Group consisted of the following members:
Joan MacPhail Q.C., Director of Family Law Branch, Manitoba Department of Justice
Judy Haldeman, Legal Counsel, Attorney General's Division, Government of P.E.I.
Cynthia Davis, Legal Counsel, Research and Planning , Government of New Brunswick
Charlene Lafleur-Graham, Department of Justice, Saskatchewan
Kathleen Fawcett, Legal Counsel, Child Support Team, Department of Justice, Ottawa
Wendy Bryans, Legal Counsel, Family Law Policy Section, Department of Justice, Ottawa
Mary Ann Kelly, former Reciprocity Counsel, Ministry of the Attorney General, Ontario, member of the Canadian Delegation negotiating the Convention
The Consultation Group met by way of two conference calls and reviewed a number of reports and documents, including the Report of the ULC Working Group on the Enforcement of Foreign Judgments.
General Comments Relating to the Family Law Aspects of the Convention
While the family law aspects of the convention include maintenance, matrimonial matters and custody of and access to children, it is primarily Chapter IV on the Mutual Legal Assistance for the Recovery of Maintenance which attracted the most discussion amongst the Consultation Group.
Other than for maintenance matters, the treatment of family law matters is similar to the treatment of all other civil orders which fall within the ambit of the Convention. That is, recognition and enforcement of orders pertaining to general matrimonial matters and to custody of and access to children will be left to private parties and their lawyers. Governmental authorities will not be involved and these matters will proceed in much the same manner as they presently do. That is, the recognition and enforcement of French matrimonial, custody and access orders will essentially follow the procedure now in place for the recognition and enforcement of other foreign judgments of this nature.
The recognition and enforcement of maintenance orders are however, a different matter.
As noted above, Article 10 of the Convention requires that each contracting state designate a governmental body or bodies for the provision of "mutual legal assistance" to the other for the recovery of family support judgments. Article 12 then prescribes the duties of these authorities, which include the initiation of both a procedure and proceedings for the recognition and enforcement of the maintenance order on behalf of the claimant. Since the subject matter of maintenance enforcement falls within the jurisdictional competence of the provinces, it is obviously provincial and territorial authorities to which these duties, imposed by the Convention, will fall.
While authorities in the provinces and territories already bear responsibility for the recognition and enforcement of many foreign maintenance orders through the reciprocal and maintenance enforcement statutes, the scheme contemplated by the Canada-France Convention offers some particular challenges. The existing reciprocal statutes are drafted to primarily facilitate reciprocal arrangements with other common law jurisdictions. They operate only with difficultly in relation to civil law jurisdictions. It is for this reason that the model for recognition and enforcement with France differs significantly from existing reciprocal process given that France is a civil law state. The provincial/territorial reciprocal and maintenance enforcement programs are therefore faced with one set of recognition and enforcement procedures which work relatively well in reciprocal arrangements with other common law states and a separate process for maintenance orders from France.
Throughout the course of the initial consultations with the Federal/Provincial/Territorial Family Law Committee and provincial maintenance enforcement programs, family law experts repeatedly expressed an interest in the implementation of the Convention in such a manner that it would which serve as system for the addition of other civil law jurisdictions which do not now fit well under the existing reciprocal scheme. The Family Law Consultation Group therefore examined the three options put forward by the ULC Working Group/Sub-Group on the Implementation of the Canada-France Convention with a view to examining them for flexibility and clarity in maintenance procedure.
Comments on the Three Proposed Options for a Canada-France Implementing Statute
This is, of course, a modified version of the customary ULC approach to implementation of private international law conventions. Since the model consists of the minimum number of provisions necessary to give force of law to the Convention, it is the option most likely to faithfully reflect the terms of the Convention. As such, this option received a considerable amount of support from the Family Law Consultation Group.
Nevertheless, certain problems were identified with the option from a family law perspective. These concerns are as follows:
* given the lack of procedure for the recognition and enforcement of maintenance orders, each provincial and territorial jurisdiction will find it necessary to conclude longer and more specific individual arrangements with France pursuant to Article 26 in order to actually give affect to the maintenance terms in the Convention
* major coordination will be required between the provinces and territories in order to avoid inconsistent and contradictory arrangements.
* as presently worded, this option does not provide for the addition of other countries to this scheme contemplated by Canada\France unless that country enters into a convention with Canada similar to the one with France. There are a good number of civil law jurisdictions in Europe who would like to have reciprocal enforcement arrangements with Canadian jurisdictions but, because they cannot deal with provisional orders, their laws are not similar enough for them to be designated reciprocating jurisdictions under the present reciprocal scheme. However, it is unlikely that Canada will be negotiating conventions with any of these jurisdictions in the foreseeable future and they are therefore eliminated as potential reciprocal partners.
* provincial and territorial authorities would be dealing with one Act for France and another Act for all other jurisdictions
This option suggests a new implementation approach to the ULC in which the implementing statute would incorporate the provisions of the Convention into a "stand alone" statute.
While this option held considerable appeal for some members of the Family Law Group due to its clarity and flexibility in proposing the extension of the maintenance provisions of implementing statute to other civil law jurisdictions, many members were concerned that it had the most potential for interpretation problems.
Very little discussion was afforded this option as it was not favoured by any members of the Family Law Group primarily as it was not quite clear how it would operate in relation to maintenance matters.
Amendment of the Uniform Reciprocal Enforcement of Maintenance Orders Act
During the course of the conclusion of the Canada-France Convention, the Federal/Provincial/Territorial Family Law Committee had embarked on a project to amend the present uniform reciprocal statute to make it more amenable to inter-provincial recognition and enforcement of orders within Canada and to make it more compatible with and understandable to the American jurisdictions. Most of the present volume of extra- jurisdictional enforcement of maintenance orders comes first from sister provinces and territories and then from the United States.
No particular thought was given, in the initial project stages, to the development of an additional process which could be extended to civil law jurisdictions in what would essentially result in a two-tiered system of reciprocity. There would be one system for Canadian, U.S. and other common law jurisdictions. The second system would deal with non-common law jurisdictions and would be similar to the scheme of the Canada-France Convention. Both systems could be incorporated into separate Parts of a new reciprocal Act.
The Canada-France Convention would require implementation but, once that Convention had been enacted into law, France could be designated by the enacting jurisdiction as a country within the second tier of the reciprocal Act. While there would still be two statutes, the implementing Act for the Convention and the new uniform reciprocal statute, for practical purposes, the provincial/territorial authorities would only need refer to the reciprocal statute for recognition and enforcement of maintenance which would mirror the Canada-France Convention in relation to maintenance orders.
Preferences of the Family Law Consultation Group for the Implementation of Canada-France
It would therefore be the preference of the Family Law Consultation Group that the ULC draft an implementing statute along the lines of Option 1. The inherent limitations for maintenance orders in that Option, identified above, could then be addressed through the F/P/T Family Law Committee's redrafting of the existing reciprocal statute. In the meantime, Canada-France enacting jurisdictions could be dealt with by way of negotiated procedural arrangements under article 26 of the Convention. These arrangements would then ultimately be mirrored in the new reciprocal Act.
(Report finalized June 23, 1997)
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