Y. Stay of Enforcement

AuthorJulien D. Payne - Marilyn A. Payne
Pages477-478

Page 477

Given that child support obligations should take priority over saving for retirement, an application to stay execution of an order for lump sum child support arrears and to substitute an order for monthly payments against the arrears may be dismissed where the obligor has RRSP savings that can be used to liquidate the arrears.185Enforcement of support arrears may be stayed pending the obligor’s receipt of an income tax refund that he or she undertakes to transfer to the debtor spouse, but the court may see fit to direct that the matter shall be brought back within three months if the arrears are not met by transfer of the refund.186In Secours v. Secours,187Lee J., of the Alberta Court of Queen’s Bench, concluded that section 25 of the Maintenance Enforcement Act (Alberta) does not preclude a court from staying the enforcement of child support arrears for a period exceeding three months where the attendant financial circumstances justify a longer extension. In Torbey v. Torbey,188how-ever, Veit J., of the Alberta Court of Queen’s Bench, concluded that the statutory time limits imposed by sections 25(5) and (6) of the Maintenance Enforcement Act (Alberta), which make no provision for any judicial extension, must be applied by the courts. A further stay of child support and spousal support orders in a divorce judgment pending the obligor’s pursuit of an application for rescission was found to be not permissible in light of the afore-

Page 478

mentioned statutory provisions. Even if the statutory time limitations had been found inapplicable, Veit J. concluded that the obligor had failed to provide valid reasons for a further stay because he had not proved a justifiable inability to pay the support payments ordered nor had he satisfied the court that the balance of convenience was in his favour.

The Ontario Rules of Civil Procedure and the Ontario Family Law Rules exempting a support order from the provisions of an automatic stay make sense "because one cannot eat appeal papers during the time it takes these matters to go to appeal."189

[185] Bland v. Bland, [1999] A.J. No. 344 (Q.B.).

[186] Blumes v. Blumes, [1998] A.J. No. 346 (Q.B.).

[187] [2001] A.J. No. 956 (Q.B.).

[188]...

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