VARIATION AND ENFORCEMENT OF MAINTENANCE ORDERS: RUTTAN REVISITED

Abstract

It is a widespread legislative practice in Canada to confine the power of a lower court to the enforcement of maintenance orders and to prohibit that lower court from varying or rescinding those orders. At the same time an enforcement court may not, without specific statutory authorization, decline to enforce a maintenance order. In Ruttan v. Ruttan in 1982 the Supreme Court of Canada confronted the question whether a particular course of judicial action should be characterized, on the one hand, as variation, recission or declining to enforce, or, on the other hand, enforcement. The decision has created difficulty for lower courts, particularly on the question of their power to determine whether a maintenance order has expired, and the dimensions of this difficulty are explored in this article. It is suggested at the same time that a legislative policy that refuses, for the most part, to permit courts concerned with enforcement to determine whether a maintenance order has expired, is misconceived.