AA. Laches; Limitation of Actions

AuthorJulien D. Payne - Marilyn A. Payne
Pages478-479

Page 478

The equitable defence of laches has no direct application to the enforcement of statutory child support obligations191but the applicant’s unreasonable delay over many years may render the enforcement of arrears inappropriate.192The enforcement of child support obligations may be subject to statutory limitation periods.193In British Columbia, the right to enforce arrears of child support falls subject to section 3 of the Limitation Act of British Columbia, whereby an action on a judgment for the payment of money expires ten years after the date on which the right of enforcement arose. However, the running of the ten year period is postponed until such time as the child reaches the age of majority. This extension ensues because the right to support is the right of the child and the law, including section 7 of the Limitation Act, recognizes the legal disabilities of children.194Corresponding legislation can be found in Prince Edward Island. The right of action on a default accrues as soon as the payment is past due. Consequently, each successive payment which is past due generates a new cause of action. Any payments that have been due more than 10 years are unenforceable under section 2(1)(f) of the provincial Statute of Limitations and would be

Page 479

cancelled.195There is no statutory time limitation period in Manitoba that prevents the recovery of child support arrears, but section 17 of the Divorce Act confers a discretion on the court to vary an order retroactively, with a consequential remission of arrears, and the exercise of this discretion may be deemed appropriate where enforcement of the arrears would provide a windfall to the recipient ex-spouse several years after the child attained the age of majority.196The filing of a separation agreement containing provisions for child support pursuant to section 35 of the Ontario Family Law Act renders the agreement enforceable "as if it were an order of the court." Consequently, the six year limitation period applicable to contract does not arise; instead, the applicable limitation period is that for judgments of a court, namely 20 years. Furthermore, child support is the right of the child not the parent and it cannot be waived by a parent’s delay or lack of diligence in enforcing the right. The limitation period does not begin to run until the child attains the age of majority.197Rule 60.07(2) of the Ontario Rules of Civil Procedure provides that, "if six years or more have...

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