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- Chapter 12 - Effect, Registration and Enforcement of Child Support Orders
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...
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- Chapter 12 - Effect, registration and enforcement of child support orders
- A. Definition of "Court"
- B. National Effect of Corollary Orders
- C. Enforcement and Variation Distinguished
- D. Enforcement Under Provincial Laws
- E. Burden of Proof; Failure to Attend
- F. Federal Enforcement Legislation
- G. Garnishment; Attachment; Execution
- H. Enforcement by Provincial Agencies
- I. Suspension of Driving Licence
- J. Crown’s Priority as Tax Collector; Other Creditors
- K. Committal for Contempt; Receivership
- L. Order or Agreement; Election of Remedy
- M. Enforcement of Support Arrears against Bankrupt Defaulter
- N. Fraudulent Conveyances and Preferences
- O. Locus Standi of Child
- P. Child No Longer a Child of the Marriage
- Q. Enforcement, Suspension and Remission of Arrears
- R. Enforcement by Provincial Court
- S. Enforcement of Separation Agreement
- T. Set-Off
- U. Interest
- V. Piercing the Corporate Veil
- W. Division of Matrimonial Property
- X. Effect of Death
- Y. Stay of Enforcement
- Z. Effect of Reconciliation
- AA. Laches; Limitation of Actions
- BB. Assignment of Orders
- CC. Fixing of Arrears; Payment by Instalments
- DD. Support Deduction Orders
- EE. Reciprocal Enforcement; Interjurisdictional Support Orders
- FF. Preservation Orders
- GG. Registration Against Land
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