S. Enforcement of Separation Agreement

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 473-474

Page 473

The filing of a divorce petition wherein child support is sought constitutes no basis for applying the doctrine of election so as to deprive the custodial parent of the right to sue for arrears previously accrued under a separation agreement.¹⁵⁴Damages may be awarded for breach of a separation agreement that imposes child support obligations and it is open to the parties to include a liquidated damages clause to fix the amount of recovery. Where there are sequential breaches and the separation agreement provides for a specific amount of liquidated damages to be payable for each breach, there is no bar to the court allocating the designated amount of liquidated damages for each breach that has occurred before the date of trial together with pre-judgment and post-judgment interest.¹⁵⁵A separation agreement that is duly filed under section 35 of the Family Law Act (P.E.I.) may be enforced "as if it were an order of the court." Accordingly, it falls subject to a ten

Page 474

years’ limitation period under section 2(1)(f) of the Limitations Act (P.E.I.), instead of the six years’ limitation period that would have applied under section 2(1)(g) of the Limitations Act to the enforcement of the separation agreement prior to its filing with the court.¹⁵⁶The Saskatchewan Court of Queen’s Bench has jurisdiction to cancel arrears that have accrued under an agreement for child maintenance that has been filed pursuant to section 11 of The Family Maintenance Act, 1997, even though such jurisdiction is not conferred by that particular section.¹⁵⁷

[154] Bakes v. Kelly (1995), 15 R.F.L. (4th) 361 at 365- 66 (B.C.C.A.), Southin J.A.

[155] Hall v. Cooper, [1994] O.J. No. 696, 3 R.F.L. (4th) 29 (Gen. Div.); see also McVeetors v. McVeetors (1995), 43 R.F.L. (2d) 113 (Ont. C.A.).

[156] Cameron v. Cameron, [1999] P.E.I.J. No. 62...