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- Chapter 12 - Effect, Registration and Enforcement of Child Support Orders
AA. Laches; Limitation of Actions
Author | Julien D. Payne - Marilyn A. Payne |
Pages | 478-479 |
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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- 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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