C. Enforcement and Variation Distinguished

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 452-454

Page 452

The powers conferred by section 20(3) of the Divorce Act are expressly confined to the enforcement of corollary orders and do not include any jurisdiction to vary, rescind, or suspend such orders.⁵The jurisdiction to vary, rescind, or suspend orders for support, custody or access is expressly confined by the provisions of the Divorce Act to courts that satisfy the definition of "court" found in section 2(1).⁶Thus, in Knott v. Jacob,⁷wherein child support had been granted in divorce proceedings in accordance with a pre-existing order of the Provincial Court (Family Division), now the Ontario Court of Justice, James J. held that the Supreme Court of Ontario, now the Ontario Superior Court of Justice, has no jurisdiction to direct that any motion to vary the order shall be adjudicated by the Provincial Court (Family Division).⁸On an application by the Saskatchewan Director of Maintenance Enforcement to enforce a child support order, the presiding judge has no jurisdiction to provide a pragmatic response to practical problems by granting a variation order, where no application for such relief has been brought and the parent in receipt of child support has been denied the opportunity to be heard on the matter.⁹In Smith v. Smith,¹⁰ the mother had been ordered to pay support for three children pursuant to the Divorce Act and the Federal Child Support Guidelines. The order provided that the support would continue "for so long as the said children remain children within the meaning of the Divorce Act or until further order of this Court." The order was registered under The Enforcement of Maintenance Orders Act, 1997.¹¹The Director of Maintenance Enforcement instituted default proceedings against the mother seeking arrears that had accrued with respect to the two older children after they attained the provincial age of majority. Within the confines of the maintenance enforce-

Page 453

ment proceeding, the mother sought a judicial determination that the two older children had ceased to be "children within the meaning of the Divorce Act" when they turned eighteen. She argued that her support obligation was extinguished by operation of law when each child attained the provincial age of majority, and that the onus thereafter fell on the father to apply for any continued support with respect to the children’s ongoing education. She also challenged the Director’s action in taking steps to enforce arrears, stating that he had the power to determine disputes between the parents, the statutory discretion to suspend or refuse to enforce arrears, and the right to apply for a variation of the order on his own...