F. Enforcement and Variation Distinguished under Provincial Legislation

Author:Julien D. Payne - Marilyn A. Payne

Page 487

Orders granted pursuant to the Divorce Act have legal effect throughout Canada and may be enforced extra-provincially, but a court may only vary an order in accordance with the Divorce Act.13An order for support granted under the Divorce Act cannot be varied by an application brought pursuant to provincial statute, nor can any such application seek to remit arrears of support that have accrued under the order.14Although provincial legislation may apply to the enforcement of orders for support granted on or after divorce, such legislation is not a legitimate source of judicial jurisdiction to vary an order for support granted pursuant to the Divorce Act.15Provincial enforcement legislation cannot be invoked, therefore, as the basis for an order that "arrears under the divorce judgment [will] not continue to accumulate while the respondent [is] unemployed."16

[13] Divorce Act, s. 20.

[14] Weinstein v. Weinstein (1995), 15 R.F.L. (4th) 353 (B.C.C.A.).

[15] See Divorce Act, s. 20(4); McArthur v. Kyle (1994), 113 D.L.R. (4th) 263 (Ont. Ct. Gen. Div.).

[16] Prince Edward Island (Director of Maintenance Enforcement) v. Callaghan (1991), 32 R.F.L. (3d) 117 (P.E.I.C.A.).

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