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International Families Money, Children & Long-Term Planning CHILD SUPPORT WORKSHOP. PROGRAM PRODUCER: Ms. Rhiannon Lewis (UK) PRESENTERS: Hannah Roots (Canada) Gary Caswell (U.S.) Margaret Campbell Haynes (U.S.) Philippe Lortie (The Hague).

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International families money children long term planning child support workshop
International FamiliesMoney, Children & Long-Term PlanningCHILD SUPPORT WORKSHOP

PROGRAM PRODUCER: Ms. Rhiannon Lewis (UK)

PRESENTERS:

Hannah Roots (Canada)

Gary Caswell (U.S.)

Margaret Campbell Haynes (U.S.)

Philippe Lortie (The Hague)


Establishment enforcement abroad recognition enforcement of foreign orders speakers
Establishment & Enforcement AbroadRecognition & Enforcement of Foreign OrdersSpeakers

Hannah Roots

Managing Director

British Columbia Maintenance Enforcement Program

Gary Caswell, Esq.

Nuñez & Caswell


Overview
Overview

  • Establishment of a child support order

    • US Law

    • Canadian law and processes

    • Incoming requests for establishment in United States

  • Enforcement of an existing Child Support order

    • Canadian processes

    • Recognition and enforcement of a foreign order in US

  • Other Issues

    • Duration of child support

    • Currency Conversion

    • Modification of orders


Establishment of parentage child support in a foreign country u s view
Establishment of Parentage & Child Support in a Foreign Country – U.S. View

  • IV-D Federal Level Reciprocity

    • http://www.acf.hhs.gov/programs/cse/international/index.html

  • IV-D State Level Reciprocity

    • TX-Germany, CA-New Zealand, VA-Quebec

    • See, OCSE Intergovernmental Referral Guide for State Level Reciprocity & Other helpful information

  • Forms & Procedures

    • Give Foreign Tribunals what they want! (Documents, certificates, translation, foreign currency equivalence)

    • UIFSA 2001 § 304 (b) – Duties of Initiating Tribunal

    • Future: Hague Transmittal & Country Profiles


Establishment of parentage child support in a foreign country u s view cont d
Establishment of Parentage & Child Support in a Foreign Country – U.S. View Cont’d

  • Make IV-D Agency do its job! Case Closure Criteria applicable when respondent is in a foreign country

  • 45 CFR CH.III 303.11(B)4: Can close if NCP locate unknown and have made diligent Efforts using Multiple Sources over 3 yrs via Automated Locate (if sufficient info to do Auto-Locate) & 1 yr if only have info for Non-Auto-Locate

  • 45 CFR CH.III 303.11(B)6:The NCP is a citizen of , and lives in, a foreign country, does not work for the Federal government or a company with headquarters or offices in the United States, and has no reachable domestic income or assets; and the State has been unable to establish reciprocity with the country (focus on citizenship, not Reciprocity) If US Citizen, can’t close for lack of reciprocity alone.


Establishment of parentage child support in a foreign country u s view cont d1
Establishment of Parentage & Child Support in a Foreign Country – U.S. View Cont’d

  • If No Reciprocity - Long Arm Factors

    • Is there a Jurisdictional basis for VA to establish support or determine parentage over a Nonresident Respondent (NR)?

      • UIFSA 2001 §201 bases: NR was personally served in VA; voluntarily submits to VA Jurisdiction; resided with the child in this state; resided in the state and supported the child; the child resides in this state because of NR’s acts or directives (DV cases?); sex in VA & child may have been conceived as a result; and any other basis which is “constitutional”.

    • Is Enforcement of resultant Order in U.S. possible?

      • (wage withholding, license revocation, property lien (cost & logistics of PAT);


Establishment of parentage child support in a foreign country u s view cont d2
Establishment of Parentage & Child Support in a Foreign Country – U.S. View Cont’d

  • Child vs. Debtor-Based Jurisdiction Stalemate

    • Kulko, 436 U.S. 84; 98 S. Ct. 1690

    • Spring Break Affair in Cancun; CP in TX; AF in Quebec & never in TX; No TX-QU reciprocity; QU Local Counsel says no Jurisdiction to Establish PAT in QU = Stalemate! (File in TX, Child in TX as a result of AF Acts or Directives? Ask TX IV-D to ask VA IV-D (VA –QU Reciprocity to initiate to QU?)

  • No Reciprocity + No Long Arm = Foreign Attorney(s)

    • DOS Link for Retaining Foreign Attorneys

  • Non-Judicial Remedies

    • ADR & Cultural Pressure (Japanese Corps, Ball Clubs)


Mexico
MEXICO Country – U.S. View Cont’d

  • No Federal Reciprocity (despite Fernando Solana ‘92 Declaration re all MX states & URESA/RURESA

  • No Effective Central Authority Assistance

  • Enforcement Limited

    • Wage Withholding (specific to employer)

    • Abandonment

  • Service of Process:

    • New Developments Hague vs Inter-American; Exclusivity; PFI; Local Counsel

    • See, Gary Caswell “Judicial Assistance Conventions in Effect for Mexico and the USA” in course materials.


Canadian family law framework
Canadian Family Law Framework Country – U.S. View Cont’d

  • In Canada – family law is area of shared responsibility for federal government and provinces/territories

    • Federal law (Divorce Act ) governs family matters including child support for parents that were married

    • Provincial law governs all issues arising out of family breakdown outside marriage (never married, or interim orders before divorce) and property division

    • Enforcement of child support is exclusively a provincial responsibility (although federal government will enforce against federally regulated assets/income at request of a province)

    • Provincial/Territorial Interjurisdictional Support Order (ISO) Acts govern cases where one party resides outside province

      • ISO is similar to UIFSA (but not uniform across Canada)

  • Result is a patchwork of similar but not identical laws respecting family breakdown in Canada


Establishing child support in canada
Establishing Child Support in Canada Country – U.S. View Cont’d

  • In terms of substantive law – there are a lot of similarities between Canadian and American family law

  • Some differences to be aware of:

    • In Canada – jurisdiction to establish a child support order can be based on the residence of the custodial parent and the child only (no need for NCP to have had any contact with Canada)

    • In Canada - Paternity does not have to be specifically established before a child support order can be made. It is up to NCP to raise the issue of paternity if he wants that issue determined, otherwise the support application may proceed without consideration of paternity


Forum considerations establishment in canada or us
Forum Considerations : Country – U.S. View Cont’dEstablishment in Canada or US?

Considerations

  • Cost

    • Very unlikely that legal assistance would available in Canada for establishment if CP retains local counsel

    • Use of IV-D Agency is cost-free to custodial parent

  • Time to obtain order

    • Domestic US processes may be faster than Canadian process as Courts in some provinces are quite backed up

    • A Canadian lawyer may be able to bring the application in a superior court – which can be much faster than a lower court process in Canada ( Many provincial/ territorial ISO processes use lower court)

  • Enforceability of order

    • As long as US Court had jurisdiction under US law, the resulting US order can be enforced in Canada – but it will still have to go through a recognition process in Canada (discussed later)

    • An order obtained in Canada (whether through IV-D process or through local counsel) can be immediately enforced


Paternity establishment
Paternity Establishment Country – U.S. View Cont’d

  • ISO legislation does not allow a “stand-alone” paternity determination at request of a foreign applicant – it must be part of an application to establish child support

  • If request to establish a child support order comes through the IV-D system and NCP challenges paternity (or CP specifically requests establishment of paternity)

    • Designated authority will coordinate paternity testing

    • Processes vary but genetic testing can be done by agreement or Court order


Child support order
Child Support Order Country – U.S. View Cont’d

  • All Canadian child support guideline tables use NCP income to determine child support amount, but provincial/territorial order amounts vary slightly because income tax is taken into account

  • Order will be made in CANADIAN dollars

  • If establishment request comes through the IV-D system the order will be sent to local child support program for enforcement if the custodial parent requests

  • In private cases – the resulting Canadian order can usually be enrolled with the local enforcement program

    • However – some enforcement programs may be reluctant to let a foreign creditor directly register – check first


Establishment in quebec
Establishment in Quebec Country – U.S. View Cont’d

  • Quebec has not proclaimed its ISO legislation yet (anticipated in 2013-2014)

  • Current legislation ( REMO Act) does not allow a foreign creditor (CP) to request establishment of a child support order

  • Parent must retain lawyer in Quebec and bring an application before Court in Quebec

  • May be a consideration in determining whether it would be better to use domestic (US) law to establish the order, and then send the order for enforcement


Establishment of pat child support in u s for foreign petitioner
Establishment of PAT & Child Support in U.S. for Foreign Petitioner

  • IV-D Policy on Direct Applications PIQ 99-01 As of today, Anybody Anywhere can apply for IV-D services

  • Legal Basis: Why not? Status of the place from which a cp applies for services is irrelevant in an establishment case filed under UIFSA” People ex rel. A.K., 2003 WL NCP = CO, CP = Russia HELD: CO can EST for applicant residing in Russia; CO guidelines may need deviation.

    • Practice Tip: Verify with DOS that providing legal assistance and facilitating the transfer of money to a N. Korean, Iranian, or Cuban CP does not constitute trading with the enemy or violation of an economic boycott.

  • Law Applicable: Lexfori& Petitioner need not travel to U.S. UIFSA 2001 § 316(a) & rules of evidence & inter-tribunal communications apply


Enforcement of child support in a foreign country u s view
Enforcement of Child Support in a Foreign Country – U.S. View

  • Federal or State IV-D Reciprocity;

  • Forms & Procedures

    • Give them what they want: Documents, Certificates, Translation, Foreign Currency Equivalence etc

  • Long Arm

  • Local Counsel;

    • DOS Websites & Judicial Assistance Circulars – not so helpful for Child Support if Non-reciprocating Country


Enforcement of foreign orders in canada
Enforcement of Foreign Orders in Canada View

  • A foreign support order (child or spousal) must be registered before it can be enforced

  • Registration process comes under ISO Act and is similar to UIFSA process

    • Registration must be done by designated authority (no private process) but applicant can send order directly to designated authority

    • The order is registered by filing it with the Court

    • Notice of the registration is given to the respondent

    • Respondent can object to registration on basis he/she did not have notice, the order is contrary to public policy, or the Court that made it did not have jurisdiction (long arm could arise here)

  • If registration is set aside – order is treated as if it were a request to establish a new order


Enforcement remedies
Enforcement Remedies View

  • Enforcement of child support is rarely done privately in Canada

  • Private enforcement can be costly and in many provinces/territories there are enforcement remedies that are only available to child support program

  • Provincial/territorial enforcement programs use same type of enforcement measures as in US

    • Garnishment, liens, interception of funds and income

    • Passport denials, drivers licence suspension

    • Contempt-type court applications


Recognition enforcement of foreign orders in u s
Recognition & Enforcement of ViewForeign Orders in U.S.

  • Legal Basis - Federal Law & Policy

    • 42 USC 659a Secretary of State and HHS designate a country to be a Foreign Reciprocating Country (FRC)

    • 42 USC 659a(d) U.S. States can make reciprocity arrangements with foreign countries until superseded by FRC

    • Federal Policy: “Request” from FRC shall be treated the same as a request from a U.S. state


State foreign country arrangements constitutional yes
State –Foreign Country Arrangements - Constitutional? Yes!

  • Article II, Sec. 2, Clause 2

    • Grants the President the power to make Treaties with the concurrence of 2/3 of the Senate

  • Article I, Sec 10 Clause 1

    • provides no state can enter into a treaty

  • Article I, Sec. 10, Clause 3

    • provides no state can enter into “an agreement or compact ...with a foreign power” without the Consent of Congress = 42 USC 659a(d)


Other state law providing legal basis
Other State Law Providing Legal Basis Yes!

  • UIFSA 2001 § 102 (21) (B) … (in addition to reciprocating countries) a country which has

  • “Enacted a law or established procedures for issuing and enforcing support orders that are substantially similar to UIFSA procedures”

  • UIFSA 2001 § 104 (Remedies Cumulative/Not Exclusive) Recognition of foreign orders on the basis of other law OK, including comity (can’t register but can use UIFSA evidentiary & inter-tribunal communications provisions


State comity
State? Comity? Yes!

  • Grave v Schubert, 2000 WL1221343 (Minn.App.) UK order modifying MN order not recognized by MN because UK modified MN CEJ order. If UK does not recognize concept of CEJ, then it is not a “state””

  • Foreman v. Foreman, 144 N.C.App. 582, 550 S.E.2d 792 (N.C.App., Jul 03, 2001) NC has jurisdiction to enforce England order since England is a “state” per a unilateral reciprocity extension agreement

  • Haker, 143 N.C.App. 688, 547 S.E.2d 127 Swiss Order not enforced because no reciprocity, no substantial similarity and not recognized under comity because no requirement of personal jurisdiction over respondent

  • Desselberg v. Peele, 523 S.E.2d Neither full faith and credit nor Full Faith and Credit for Child Support Orders Act apply to foreign orders, but NC will honor German order on the basis of comity


Recognition enforcement of foreign orders in u s cont d
Recognition & Enforcement of Yes!Foreign Orders in U.S. – Cont’d

  • Indigent Clients have IV-D Agency Option

    • OCSE PIQ 99-01 – Direct Applications

  • Law Applicable

    • G/R Lex Fori

      • UIFSA 2001 § 303(1) Use local procedural and substantive law

    • Choice of Law

      • UIFSA 2001 § 604 (a)(1) law of issuing state governs nature, extent, duration and amount of current support

    • Statute of Limitation

      • UIFSA 2001 § 604(b) in an action for arrears, whichever statute (issuing or responding state) is longer


Duration of child support
Duration of Child Support Yes!

  • In most provinces/territories child support will continue past the age of majority (18 or 19 years of age)

  • Will continue for so long as the child is “unable to withdraw from parent’s charge” or “unable to obtain the necessaries of life because of illness, disability or other cause...”

  • “Other cause” includes continuing in post-secondary education, inability to find gainful employment and generally a continuing dependency upon the custodial parent

  • Custodial parent will have to establish that the child continues to be dependent

  • Some provinces/territories may require a Court order to stop child support (unless the parents agree)


Recognition enforcement of foreign orders in u s cont d1
Recognition & Enforcement of Yes!Foreign Orders in U.S. – Cont’d

  • Currency Conversion

    • Judgment Date – G/R

    • Breach Date – ameliorates fluctuating rates

      • Aker Verdal, 828 P.2d 610

    • Payment Date

    • See, Barry J. Brooks “International Family Support: Currency Conversion” paper in materials


Currency conversion
Currency Conversion Yes!

  • Under ISO – orders expressed in US dollars will be converted for enforcement to Canadian dollars using exchange rate in effect on date the order was made or last varied

  • ISO Acts have no provision to modify or update this conversion rate

  • Can result in discrepancies between what is owing in US dollars (under a US order) and the converted amount in Canadian dollars

  • Recommended solution is to obtain an order in a US Court confirming the outstanding arrears - this can then be registered and will convert the arrears to the current equivalent amount

  • The currency conversion done under ISO does not modify the underlying foreign order – it simply states an Canadian dollar equivalent for enforcement purposes


Recognition enforcement of foreign orders in u s cont d2
Recognition & Enforcement of Yes!Foreign Orders in U.S. – Cont’d

  • Modification

    • UIFSA 2001 § 611 if issuing foreign court can not or will not modify its own order, U.S. state can modify & bind all subject to its jurisdiction

    • Cannot modify duration of foreign order UIFSA 2001 § 604

    • Cannot modify spousal support order of another state UIFSA 2001 § 211


Modification of orders canada
Modification of orders - Canada Yes!

  • Yes - Canadian courts may reduce or eliminate arrears of child support under foreign (and domestic) child support orders!

  • Legal basis is generally that there has been a significant change in circumstances and that it would be grossly unfair not to vary the arrears

  • A request by a party in Canada will be made under ISO, and that request will be transmitted to the jurisdiction where the other party lives

  • Hearing will take place in the other jurisdiction

  • UIFSA provisions are available to initiate a modification of a Canadian order being enforced in the United States BUT

    • Orders made under the Canadian Divorce Act cannot be varied outside Canada

    • A modification request must be made directly to the Court in Canada

    • If initiated by the Canadian party – other parent will be served ex-juris


Recognition enforcement of foreign orders in u s cont d3
Recognition & Enforcement of Yes!Foreign Orders in U.S. – Cont’d

  • Defenses

    • Not an Order

      • Commonwealth Provisional Order

      • German Youth Welfare Office Executable deed

      • May be better for NCP than local order

    • Due Process & Public Policy

      • See, Schuber, supra

      • Israeli Case

      • Reciprocity does not supersede


Resources
Resources Yes!

  • OCSE Caseworkers Guides (available on OCSE website)

  • Canadian Federal Department of Justice website

  • Canadian Provincial Enforcement Program websites

  • Gary’s paper “Judicial Assistance Conventions in Effect for Mexico and the USA” (in materials)

  • Handout – Completing USM Forms to send to Mexico

  • List of Helpful Websites (in materials)


Speaker contact information
Speaker Contact Information Yes!

Hannah Roots

British Columbia Maintenance Enforcement Program

2nd Floor 609 Broughton Street

Victoria , British Columbia

Canada

(250) 220 – 4031

[email protected]

Gary Caswell, Esq.318 Sumner DriveSan Antonio, Texas  78209  USATelephone:  [email protected]


Uifsa 2008
UIFSA 2008 Yes!

Speaker

Margaret Campbell Haynes

Senior Associate

Center for the Support of Families


Goals of uifsa 2008
Goals of UIFSA 2008 Yes!

  • Implement the Hague Convention

  • Address international cases in general

  • Build upon UIFSA 2001


International case processing
International Case Processing Yes!

  • Hague Convention is not exclusive remedy for international orders.

    • UIFSA already contained provisions re: bilateral agreements and state reciprocity arrangements.

    • A tribunal may also recognize a foreign order on basis of comity.

  • Some concepts – CEJ and DCO – do not fit neatly in international arena.


New definition of foreign country
New Definition of Foreign Country Yes!

  • UIFSA 2001 incl. “qualified” foreign countries within definition of State

  • UIFSA 2008 has separate definition that incl. many, but not all, foreign nations:


A country, including a political subdivision thereof, other than the United States, that authorizes the issuance of support orders and:

(A) has been declared under US law to be a foreign reciprocating country;

(B) Has established a state reciprocal arrangement for child support;

(C) Has law or procedures for the issuance and enforcement of support orders which are substantially similar to UIFSA procedures; or

(D) In which the Convention is in force with respect to the United States.


Road map
Road Map than the United States, that authorizes the issuance of support orders and:

  • Articles 1 – 6, and as applicable Article 7, apply to a support proceeding involving:

    • A foreign support order;

    • A foreign tribunal; or

    • An obligee, obligor, or child residing in a foreign country.

  • Articles 1 – 6 may be applied by a tribunal recognizing and enforcing a support order on basis of comity

  • Article 7 applies only to Convention proceedings.


Article 7
Article 7 than the United States, that authorizes the issuance of support orders and:

  • Definitions

    • Central Authority

  • Foreign support agreements (maintenance arrangements)

  • Procedure for registration, recognition and enforcement

  • Limited modification


Enforcement under uifsa 2008
Enforcement under UIFSA 2008 than the United States, that authorizes the issuance of support orders and:

  • Direct income withholding only for support orders issued by a state. No longer requires US employers to honor DIWs from foreign countries.


Registration for enforcement
Registration for Enforcement than the United States, that authorizes the issuance of support orders and:

  • Procedure for non-Hague Foreign Support Orders

    • UIFSA 2001

  • Procedure for Hague Foreign Support Orders

    • New Article 7

  • Major difference

    • Documents

    • Time frames

    • Defenses


Documents required
Documents Required than the United States, that authorizes the issuance of support orders and:

  • Non-Hague Foreign Support Orders

    • Transmittal Letter

    • Two copies of order, incl. one certified copy

    • Sworn or certified statement re: arrears

    • Certain obligor information

    • Certain obligee information

    • If applicable, name and address of person to whom support payments are to be sent

    • Request for DCO, if appropriate


Documents required cont d
Documents Required (cont’d) than the United States, that authorizes the issuance of support orders and:

  • Hague Foreign Support Orders

    • Transmittal Letter

    • Complete text of order [or abstract by issuing foreign tribunal]

    • Record that order is enforceable in issuing country

    • If default order, a record attesting to due process re: notice & opportunity to be heard

    • Record re: arrears

    • Record re: automatic adjustment of support

    • If necessary, a record re: receipt of free legal assistance in issuing country


Time frame to contest
Time Frame to Contest than the United States, that authorizes the issuance of support orders and:

  • Non-Hague Foreign Support Orders

    • Within [20] days after notice of registration

  • Hague Foreign Support Orders

    • Not later than 30 days after notice of registration

    • Not later than 60 days after notice if contesting party does not reside in US


New defenses
“New” Defenses than the United States, that authorizes the issuance of support orders and:

  • Hague Foreign Support Orders

  • Recognition and enforcement of order is manifestly incompatible with public policy, including failure of issuing tribunal to observe minimum standards of due process;

  • Issuing tribunal lacked personal jurisdiction consistent with Section 201;

  • Order is not enforceable in issuing country;

  • If default order, there was a lack of due process re: notice & opportunity to be heard


Registration for enforcement cont d
Registration for Enforcement (cont’d) than the United States, that authorizes the issuance of support orders and:

  • Hague Foreign Support Orders

    • If a tribunal of a state does not recognize a Convention support order because

      • There was a lack of personal jurisdiction

      • There was procedural fraud

      • A proceeding between same parties with same purpose is pending before a tribunal of that state and that proceeding was filed first

      • The order is a default order but the notice and opportunity to challenge did not satisfy due process

    • Then the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new Convention support order.


Registration for enforcement cont d1
Registration for Enforcement (cont’d) than the United States, that authorizes the issuance of support orders and:

  • In fact, in a recognition and enforcement case that the IV-D child support agency is handling, the agency must take all appropriate measures to request a child-support order for the obligee.


What needs to happen
What needs to happen? than the United States, that authorizes the issuance of support orders and:

  • The Senate gave advice and consent to ratify the Convention on September 29, 2010.

  • Congress must approve the implementing legislation.

  • States must adopt UIFSA 2008.

  • The President must deposit documentation with the Hague Conference on Private International Law ratifying the Convention.


Status of bilateral agreements
Status of Bilateral Agreements than the United States, that authorizes the issuance of support orders and:

  • The U.S. currently has bilateral reciprocity agreements with 15 countries and 11 Canadian Provinces.

  • Convention does not affect any bilateral agreements.


Foreign reciprocating countries
Foreign Reciprocating Countries than the United States, that authorizes the issuance of support orders and:

  • Australia

  • Canadian Provinces/Territories

    • Alberta, British Columbia, Manitoba, New Brunswick, Northwest Territories, Nunavut, Newfoundland/Labrador, Nova Scotia, Ontario, Saskatchewan, Yukon

  • Czech Republic

  • El Salvador

  • Finland


Foreign reciprocating countries cont d
Foreign Reciprocating Countries (cont’d) than the United States, that authorizes the issuance of support orders and:

  • Hungary

  • Ireland

  • Israel

  • Netherlands

  • Norway

  • Poland

  • Portugal

  • Slovak Republic

  • Switzerland

  • The United Kingdom of Great Britain and Northern Ireland


2007 Hague Child Support Convention than the United States, that authorizes the issuance of support orders and:

International Families – Money, Children and Long Term Planning

ABA Section of International Law

Washington D.C., 25 May 2012

Philippe Lortie, First Secretary

Hague Conference on Private International Law


States involved in the negotiations from 2003 until 2007
STATES INVOLVED IN THE NEGOTIATIONS FROM 2003 UNTIL 2007 than the United States, that authorizes the issuance of support orders and:


Key features child support convention
KEY FEATURES than the United States, that authorizes the issuance of support orders and:CHILD SUPPORT CONVENTION

  • Universality

  • Accessibility

  • Simplicity & Flexibility

  • Speed & Efficiency

  • Cost-effectiveness

  • Responsive and fair

  • Non-discrimination

  • Co-operation and compliance


Principal components of new convention
PRINCIPAL COMPONENTS than the United States, that authorizes the issuance of support orders and:OF NEW CONVENTION

  • System of administrative co-operation (efficient, responsive, flexible, accessible)

  • Procedures available in States for establishment, recognition and enforcement, modification of decisions and recovery of arrears

  • Effective access to procedures

  • Recognition and enforcement of foreign decisions / orders (maximum recognition, simple procedures)

  • Swift and effective enforcement

  • Compliance – Monitoring and review

  • Direct requests to competent authorities

  • Applicable law rules – set out in an optional Protocol


Scope of application of convention
SCOPE OF APPLICATION OF CONVENTION than the United States, that authorizes the issuance of support orders and:

  • Entire Convention applies on a mandatory basis to maintenance cases of persons under the age of 21(possible to reserve for persons under the age of 18)

  • Convention covers recognition and enforcement of spousal support when combined with child support - its provision on administrative co-operation will only apply to spousal support where States have made a declaration to extend application of Convention

  • Application of any part of the Convention could be extended by way of declaration (with reciprocal effect) to other maintenance obligations arising from a family relationship, parentage, marriage or affinity

  • Convention could be extended to vulnerable adults

  • Convention applies to children regardless of the marital status of the parents


Two tracks
TWO TRACKS than the United States, that authorizes the issuance of support orders and:

  • 1) Applications through Central Authorities (CAs)

    • Children under the age of 21 (or 18 reservation)

    • Spousal support combined with child support if State has made a declaration to extend scope

    • Other maintenance obligations if State has made a declaration to extend scope

  • 2) Direct request to a competent authority

    • Direct requests possible for any procedure available under internal law including, subject to Article 18, for establishment and modification

    • Convention procedures for recognition and enforcement available subject to some limitations


Administrative co operation applications through cas
ADMINISTRATIVE CO-OPERATION than the United States, that authorizes the issuance of support orders and:APPLICATIONS THROUGH CAs

  • Administrative co-operation implemented using Central Authorities (CAs)

  • CAs focal point in relation to specific functions:

    • Transmitting and receiving applications

    • Initiating or facilitating proceedings

  • Time lines and responsiveness

  • Means of communication


Administrative co operation cont
ADMINISTRATIVE CO-OPERATION (cont.) than the United States, that authorizes the issuance of support orders and:

  • Convention will provide for specific applications using recommended forms:

    • Recognition and enforcement of Contracting States decisions

    • Enforcement of requested State decision

    • Establishment of decision in requested State when no existing decision or when enforcement of existing decision impossible

    • Modification of decisions either by creditor or debtor

    • Recovery of arrears


Other central authority functions
OTHER CENTRAL AUTHORITY FUNCTIONS than the United States, that authorizes the issuance of support orders and:

  • Help locate debtor / creditor

  • Help obtain information about financial circumstances

  • Encourage amicable solutions

  • Facilitate enforcement

  • Facilitate transfer of payments

  • Facilitate obtaining of documentary and other evidence and service of documents

  • Assistance in establishing parentage

  • Help in obtaining provisional measures

  • Requests for specific measures (limited service requests)


Effective access to procedures
EFFECTIVE ACCESS TO PROCEDURES than the United States, that authorizes the issuance of support orders and:

  • All Contracting States obliged to provide effective access

  • to procedures, including enforcement and appeal

  • procedures, by providing:

  • Simple procedures with the assistance of CAs allowing the applicant to proceed without further assistance

  • Free legal assistance for applications for establishment and for recognition and enforcement of child support decisions (with some exceptions)

  • A State may, as an alternative, declare that it will apply a “child-centred” means test, in cases involving establishment of child support

  • For all other applications processed through CAs under the Convention legal assistance may be subject to a means or merits test


Direct requests art 37
DIRECT REQUESTS (Art. 37) than the United States, that authorizes the issuance of support orders and:

  • Direct requests possible for any procedure available under internal law including, subject to Article 18, for establishment and modification

  • Certain provisions of the Convention apply to direct requests for recognition and enforcement- Article 14(5) – no security, bond or deposit required- Article 17(2) – national treatment re legal aid- Chapter V (Recognition and enforcement)- Chapter VI (Enforcement)- Chapter VII (Public Bodies)- Chapter VIII (General Provisions) with the exception of Articles 40(2) (non-disclosure determination by CA), 42 (power of attorney), 43(3) (recovery of costs from State), 44(3) (CA language requirement), 45 (translations costs) and 55 (amendment of forms).


Recognition and enforcement
RECOGNITION AND ENFORCEMENT than the United States, that authorizes the issuance of support orders and:

  • Convention applies to judicial and administrative decisions, settlements, “maintenance agreements” (authentic instruments)

  • Main bases for recognition and enforcement (indirect jurisdiction)

    • Respondent habitually resident in the State of origin

    • Respondent submitted to the jurisdiction

    • Creditor habitually resident in the State of origin (reservation possible)

    • Child resident in the State of origin when proceedings instituted and respondent lived with the child there or resided there and provided support for the child there

    • Agreement to the jurisdiction by the parties except in the case of child support (reservation possible)

    • Authority exercising jurisdiction on a matter of personal status or parental responsibility (reservation possible)


Recognition and enforcement cont
RECOGNITION AND ENFORCEMENT than the United States, that authorizes the issuance of support orders and:(cont.)

  • Grounds for refusing recognition and enforcement

    • Decision manifestly incompatible with public policy

    • Decision obtained by fraud relating to procedure

    • Competition between pending case and foreign decision

    • Conflicting decisions (res judicata)

    • No proper notice or opportunity to be heard

    • Debtor exceeded limits on proceedings (Article 18)


Procedures for recognition and enforcement
PROCEDURES FOR RECOGNITION AND ENFORCEMENT than the United States, that authorizes the issuance of support orders and:

  • Registration for enforcement

    • grounds for refusal are limited

    • no submissions from the parties

  • Challenge or appeal within limited time and on limited grounds

  • Further appeal if permitted by law of State addressed, without staying the enforcement of the decision

  • Alternative procedure

  • Linkage with national enforcement procedures


Enforcement measures
ENFORCEMENT MEASURES than the United States, that authorizes the issuance of support orders and:

  • Weakness under existing child support systems has been a lack of effective enforcement mechanisms

  • While choice of specific enforcement measures are left to the requested State, States are required to make available effective enforcement measures

  • Convention provides a list of possible measures that a State might, at its option, use, including

    • Wage withholding

    • Garnishment

    • Deductions from social security payments

    • Lien on or forced sale of property

    • Tax refund withholding

    • License denial or suspension


New role for attorneys
NEW ROLE FOR ATTORNEYS than the United States, that authorizes the issuance of support orders and:

  • Advise clients on best track (CA or Direct Request)

    • Legal tradition differences and language barriers

    • CA services v. domestic attorney

    • Cost issues (access to procedures / legal aid)

    • Speed of procedures

  • Advise clients on available applications

    • Domestic or foreign establishment?

    • Any reservation on recognition and enforcement?

    • What is the most favourable law?

  • Domestic establishment + foreign service + recognition and enforcement abroad

  • Foreign establishment + domestic service + direct enforcement abroad?


Future coming into force
FUTURE COMING INTO FORCE than the United States, that authorizes the issuance of support orders and:

  • USA signed the Convention on 23-XI-2007 

  • Burkina Faso signed the Convention on 7-I-2009 

  • Ukraine signed the Convention on 7-VII-2010 

  • EU approved the Protocol on 8-IV-2010 and signed the Convention on 6-IV-2011 

  • Norway ratified the Convention on 6-IV-2011 

  • Albania signed the Convention on 21-X-2011 

  • Bosnia and Herzegovina signed the Convention on 5-VII-2011 

  • Other States to join soon: Brazil


Questions
Questions than the United States, that authorizes the issuance of support orders and:

Permanent Bureau

Hague Conference on Private International Law

6, Scheveningseweg

2517 KT The Hague

The Netherlands

Tel.: + 31 (70) 363 3303

Fax: + 31 (70) 360 4867

E-mail: [email protected]

Website: www.hcch.net


Thank you gary hannah meg philippe rhiannon
Thank You than the United States, that authorizes the issuance of support orders and:-Gary-Hannah-Meg-Philippe-Rhiannon


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