Can a party claim arrears of maintenance under the terms of a divorce agreement where there has been no application for child support since the divorce agreement was signed?

British Columbia, Canada


The following excerpt is from Cameron v. Cameron, 1998 CanLII 5009 (BC SC):

Counsel for the husband referred to a passage in Schmitke v. Schmitke (1993), 87 B.C.L.R. (2d) 377 at 386 (S.C.), where the party claiming child support clearly had elected her statutory remedy. In that case, the earlier separation agreement provided for child maintenance but the divorce decree was silent in respect of child maintenance, arrears of maintenance, or the separation agreement. Subsequently, the wife had successfully applied for child maintenance. Madam Justice Kirkpatrick concluded that the wife could claim arrears of maintenance under the terms of the separation agreement up to the time of the court order for maintenance. It is noteworthy that the divorce decree itself did not constitute election, but only the subsequent application for maintenance. In the present case, by way of contrast, there has been no application for child support until now.

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