Difference between revisions of "Enforcing Family Law Agreements"

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC|expanded = agreements}}{{JPBOFL Editor Badge
|CoAuthor = [[Beatrice McCutcheon]]
|ChapterEditors = [[Beatrice McCutcheon]] and [[Gagan Mann]]
}}


People who sign a family law agreement are signing a ''contract''. A contract is an agreement between two or more people that creates an obligation to do or to not do something. Other kinds of contracts include the rental agreement a tenant has with a landlord, the lease agreement you might have with a car company, or the employment contract an employee has with an employer. Contracts can be enforced by the courts when someone doesn't do what the contract requires of them; in fact, that's the whole point of having a contract. You want a document that describes your obligations to each other and you want to have a way of making the other party do what they're supposed if the party changes his or her mind later on.
People who sign a family law agreement are signing a ''contract''. A contract is an agreement between two or more people that creates an obligation to do or to not do something. Other kinds of contracts include the rental agreement a tenant has with a landlord, the lease agreement you might have with a car company, or the purchase agreement you might have with the people from whom you've bought a house. Contracts can be enforced by the courts when someone doesn't do what the contract requires of them; in fact, that's the whole point of having a contract. You want a document that describes your legal obligations to each other and you want to have a way of making the other party do what they're supposed to do.


This page talks about how family law agreements can be enforced by the courts and by the Family Maintenance Enforcement Program, an agency of the provincial government that can help with the enforcement of agreements for the payment of child support and spousal support.  
This section discusses how family law agreements can be enforced by the courts and by the [https://www.clicklaw.bc.ca/helpmap/service/1082 BC Family Maintenance Agency] (BCFMA), an agency of the provincial government that can help with the enforcement of agreements for the payment of child support and spousal support. The BCFMA used to be called FMEP, and may still be called that since it operated for decades as the Family Maintenance Enforcement Program.
 
'''DRAFT'''


==Introduction==
==Introduction==


When someone who has signed a family law agreement doesn't do the things the agreement requires, that person is ''in breach'' of the agreement. In family law, unlike in the law about commercial contracts, a party to an agreement can breach just part of the agreement without being considered to be in breach of the whole agreement. As a result, when someone breaches just a part of a family law agreement, the other party isn't allowed to treat the entire agreement as having been rejected by the breaching party, no matter how important the breach was, and the agreement continues to be binding on both parties.
When someone who has signed a family law agreement doesn't do the things the agreement requires, that person is ''in breach'' of the agreement. In family law, unlike the law about commercial contracts, a party to an agreement can breach just part of the agreement without being considered to be in breach of the whole agreement. As a result, when someone breaches just a part of a family law agreement, the other party isn't allowed to treat the entire agreement as having been rejected by the breaching party, no matter how important the breach was, and the agreement continues to be binding on both parties.


The ''Family Law Act'' says this about family law agreements at s. 6:
The ''[[Family Law Act]]'' says this about family law agreements at section 6:


<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
Line 25: Line 26:
<blockquote><blockquote><tt>(c) the agreement is filed with a court.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the agreement is filed with a court.</tt></blockquote></blockquote>


When a term of an agreement is breached, the other party is entitled to take steps to make the breaching party comply with his or her obligations under the agreement. This is called ''enforcing'' the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement has been breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with the allocation of parental responsibilities, can be much harder to deal with.
When a term of an agreement is breached, the other party is entitled to take steps to make the breaching party comply with their obligations under the agreement. This is called ''enforcing'' the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement has been breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with the allocation of parental responsibilities, can be much harder to deal with.


===Enforcement Under the ''Family Law Act''===
The ''[[Divorce Act]]'' doesn't talk about enforcing family law agreements. Sections 7.3 and 7.7 encourage people to resolve family law disputes outside of court if they can, but the act doesn't give the court any tools to enforce the agreements that may result from resolving a dispute out of court.


The ''Family Law Act'' allows certain family law agreements to be filed in court and enforced under the act:
===Enforcement under the ''Family Law Act''===


#agreements on ''parental responsibilities and parenting time'' can be filed under s. 44(3);
The ''[[Family Law Act]]'' allows certain family law agreements about certain subjects to be filed in court and enforced under the act:
#agreements for ''contact'' can be filed under s. 58(3);
#agreements for ''child support'' can be filed under s. 148(2); and,
#agreements for ''spousal support'' can be filed under s. 163(3).


Once filed in court, these agreements can be enforced under the ''Family Law Act'' in the same way as orders made under that act. The act has different ways of enforcing orders that change depending on the subject of the order (or agreement). Where the act provides a way particular way of enforcing an order, the order can be enforced under the that ''specific'' enforce power and by the act's ''extraordinary'' enforcement power. Where the act does not provide a particular way of enforcing an order, the order can be enforced under the act's ''general'' enforcement power and by its ''extraordinary'' enforcement power.  
*agreements on ''parental responsibilities and parenting time'' can be filed under s. 44(3), including agreements that talk about ''decision-making responsibilities'' instead of parental responsibilities,
*agreements for ''contact'' with a child can be filed under s. 58(3),
*agreements for ''child support'' can be filed under s. 148(2), and
*agreements for ''spousal support'' can be filed under s. 163(3).


====General Enforcement Power====
Once filed in court, these agreements can be enforced under the ''Family Law Act'' in the same way as court orders are enforced under the act.


Under s. 230 of the ''Family Law Act'', the court can enforce an order (or agreement) by requiring a person:
The act has different ways of enforcing orders that change depending on the subject of the order (or the agreement). Where the act provides a particular way of enforcing an order, the order can be enforced under that ''specific'' enforcement power and by ''extraordinary'' enforcement powers the act gives to the court. Where the act does not provide a particular way of enforcing an order, the order can be enforced under the act's ''general'' enforcement powers and under its ''extraordinary'' enforcement powers.


#to ''post security'', usually by paying a sum of money into court;
====General enforcement powers====
#to pay the expenses of the other party incurred from the person's breach;
#to pay up to $5,000 to the other party or a child or spouse who was affected by the person's breach; or,
#to pay up to $5,000 as a fine.


These provisions apply to agreements about parental responsibilities, child support and spousal support.
Under section 230 of the ''[[Family Law Act]]'', the court can enforce an order (or agreement) by requiring a person to:


====Extraordinary Enforcement Power====
*post security for their future compliance, usually by paying a sum of money into court,
*pay the expenses the other party incurred as a result of the person's breach,
*pay up to $5,000 to the other party, or to a child or a spouse who was affected by the person's breach, or
*pay up to $5,000 as a fine.


Under s. 231 of the act, when no other order will be sufficient to make someone comply with an order (or agreement), the court can enforce the order (or agreement) by imprisoning the person for up to 30 days.
This part of the ''Family Law Act'' applies to agreements about parental responsibilities, child support, and spousal support.


This provision applies to agreements about parental responsibilities, parenting time, contact, child support and spousal support.
====Extraordinary enforcement powers====


===Enforcement Under other Legislation==
Under section 231 of the ''[[Family Law Act]]'', when no other order will be sufficient to make someone comply with an order (or an agreement), the court can enforce the order (or the agreement) by imprisoning the breaching party for up to 30 days. You will need to prove to the court that no other order will be effective in making the breaching party comply with an agreement, and that's a very high bar to reach. And, because putting someone in jail is such a drastic step, don't expect the court to do this except in the most extreme circumstances.


Under s. 99 of the ''Family Law Act'', a party to a family law agreement about property can file a Notice of Agreement in the Land Title Office which will be registered as a charge on the title of a property under the ''Land Title Act.'' This will stop the property from transferred or mortgaged until the Notice is cancelled.
This part of the act applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support.


Under s. 100 of the ''Family Law Act'', a party to a family law agreement about a manufactured home can file a Financing Statement in the Personal Property Registry which will be registered against the manufactured home under the ''Personal Property Security Act.'' This will stop the manufactured home from transferred until the Financing Statement is cancelled.
===Enforcement under other legislation===


Under ss. 148 and 163 of the ''Family Law Act'', an agreement about child support or spousal support that has been filed in court can also be enforced under the ''Family Maintenance Enforcement Act''.
While the federal ''[[Divorce Act]]'' doesn't talk about family law agreements, including the enforcement of agreements, other laws do, including the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the provincial ''[http://canlii.ca/t/8495 Personal Property Security Act]''.


ISOA, COEA
====Orders about child support and spousal support====


Orders respecting agreements
Under sections 148 and 163 of the ''[[Family Law Act]]'', an agreement about child support or spousal support that has been filed in court can also be enforced under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Filing an agreement with the Family Maintenance Agency can be very helpful, as the program provides its services for free and can take some steps, like seizing passports and driver's licences, that lawyers can't.
214 (1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.


(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,
Agreements about child support or spousal support made outside of British Columbia can be filed in court here under the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and then be enforced under the ''Family Maintenance Enforcement Act''.
(a) the order replaces that part of the agreement that is incorporated, and
(b) the remainder of the agreement remains effective.
(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,
(a) the order replaces the part of the agreement that provides differently for the same subject matter, and
(b) the remainder of the agreement remains effective.
(4) A court may on application by a party to family dispute resolution make an order requiring the other party to pay all or part of the applicant's expenses in relation to the family dispute resolution if satisfied that
(a) the other party knowingly failed to disclose relevant information, and
(b) an order is made under section 93 [setting aside agreements respecting property division] or 164 [setting aside agreements respecting spousal support] to set aside all or part of an agreement arising from the family dispute resolution.


====Orders about property====


Under section 99 of the ''[[Family Law Act]]'', a party to a family law agreement about property can file a Notice of Agreement in the Land Title Office that will be registered as a charge on the title of a property under the ''[https://canlii.ca/t/8456 Land Title Act].'' This will stop the property from being sold or mortgaged until the Notice of Agreement is cancelled.


Not all homes are houses attached to a piece of land. Under section 100 of the act, a party to a family law agreement about a ''manufactured home'' (a structure like a trailer home that is designed to be towed or carried from one place to another) can file a Financing Statement in the [https://bit.ly/3QNOw1X Personal Property Registry] that will be registered against the manufactured home under the ''[https://canlii.ca/t/8495 Personal Property Security Act]''. This will stop the manufactured home from being sold until the Financing Statement is cancelled.


==Agreements about the care of children==


==Custody of Children==
Under the federal ''[[Divorce Act]]'', married spouses have ''decision-making responsibilities'' for their children, and the schedule of their time with the children is called ''parenting time''. People who are not married spouses may have ''contact'' with a child.


Someone who interferes with a parent's right to have custody of his or her child may be guilty of a criminal offence under the Canadian Criminal Code, in addition to being liable for the breach of a family agreement. This sort of interference with a custodial parent's rights is called abduction.
Under the provincial ''[[Family Law Act]]'', guardians, who may or may not be parents, have ''parental responsibilities'' for raising the children, and the schedule of their time with the children is called ''parenting time''. People who are not guardians, including parents who are not guardians, may have ''contact'' with a child.  


Section 128 of the Family Relations Act makes it an offence, under the provincial Offence Act, to interfere with a right of custody or access given by a court order.
Decision-making responsibilities means more or less the same thing as parental responsibilities, although the ''Family Law Act'' goes into a lot more detail about the sort of decisions that parental responsibilities includes than the ''Divorce Act'' does. The court will enforce agreements that talk about decision-making responsibilities as if the agreement was about parental responsibilities.  


The Criminal Code sanctions against abduction apply throughout Canada. Canada is also a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This convention allows for the apprehension and return of children between nations that have signed the accord.
===Parental responsibilities===


Ordinarily, where a party can prove that they have custody of the child, usually by showing a copy of the separation agreement, the police will usually at least speak to the abducting parent, if not actually retrieve the child. In situtations of joint custody, however, the police are a lot less likely to intervene as it may not be clear to them who has the legal right to have the child with them.
An agreement about parental responsibilities can be filed in court under section 44(3) of the ''[[Family Law Act]]'' and be enforced through the act's general and extraordinary enforcement powers.


There are a number of remedies available that do not include the involvement of the police. Where the location of the party who has taken the child is known, the first step is to apply to court for an order that the child be immediately returned to the custodial parent. Such an order can include a "peace officer enforcement" clause, a clause which requires any police officer in the province to assist in the return of the child. This application can be made on an ex parte basis, that is, without notifying the other party of the application. Other orders such as injunctions or restraining orders may also be sought for additional protection.
===Parenting time and contact===


==Access to Children==
A written agreement about parenting time can be filed in court under section 44(3); a written agreement about contact with a child can be filed in court under section 58(3). These agreements can be enforced through the specific enforcement powers found in sections 61 and 63, as well as the act's extraordinary enforcement powers.


This is one of the most difficult terms to enforce because the remedies available to the innocent party are so limited. Firstly, if the agreement dealing with access has been filed in court, the innocent party can make a court application to force compliance with the agreement by making an application for the other party to be found in contempt of court. Secondly, if the agreement does not set out specific times for the access to take place, the innocent party can make an application for access to be specified in the form of a court order.
====Denial of parenting time or contact====


Most conflicts between parents about access start with agreements that are vague. Agreements for "liberal and generous access" are notorious for causing problems, since they don't set out what exactly liberal and generous access means. Even an agreement for access "from Friday evening until the following Sunday evening" can cause problems because it isn't clear who is doing the picking-up and dropping-off and no specific times are set for the exchange of the child.
Under section 61, where someone has been ''wrongfully denied'' parenting time or contact in the previous 12 months, the court can:


The easiest way to address problems like this are to apply for an order making the terms of access more specific, such as "John will pick the child up from school on every other Friday and shall return the child to Jane on the following Sunday at 7:00pm." Every aspect of access can be specified in great detail.
<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the <span class="noglossary">denial</span>, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the <span class="noglossary">transfer</span> of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>


Note that little can be done to enforce access with respect to a parent who is refusing to exercise his or her access rights under an agreement. In general, the innocent parent winds up having no choice but to adopt a "use it or lose it" attitude, on the basis that the breaching parent should either see the child more reliably to give the child a sense of stability or not see the child at all.
The court can enforce agreements for parenting time or contact using its extraordinary power to jail someone, as well as certain other extraordinary powers intended for problems like these. Under section 231(4), where a guardian withholds parenting time or contact, the court can require a police officer to take the child to the person entitled to parenting time or contact. Under section 231(5), where a person with contact refuses to return the child to their guardian, the court can require a police officer to take the child to their guardian.


==Child and Spousal Support==
Under section 62(2), the denial of parenting time or contact is not wrongful under the following circumstances:


When a payor falls behind in his or her support payments or stops making them altogether, he or she is said to be in arrears of support. This is a breach of the separation agreement which requires the payor to make his or her support payments. Support is usually the easiest part of an agreement to enforce.
<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>


Once an agreement is filed in court, either in the Provincial (Family) Court under s. 121 of the Family Relations Act or in the Supreme Court under s. 122, the parts of the agreement dealing with spousal or child support can be enforced by the provincial Family Maintenance Enforcement Program. This is a free service for the party entitled to collect support and which can be very effective in forcing a payor to meet his or her obligations and monitor ongoing payments.
====Failure to exercise parenting time or contact====


See the chapters Child Support > Arrears of Support and Spousal Support > Arrears of Support for more information. Additional contact information for FMEP is provided in the Resources & Links section.
Under section 63, where someone ''fails repeatedly'' to exercise a right of parenting time or contact under an agreement, the court can:


==Property==
*require the parties to use a dispute resolution process, such as parenting coordination or mediation,
*require one or more parties or the child to go to counselling,
*require the <span class="noglossary">transfer</span> of the child between the parties to be supervised,
*require the person who fails to use their parenting time or contact to pay back any expenses incurred by the other person as a result of their failure,
*require the breaching person to post security, or
*require the breaching person to report to the court.


Where an agreement provides for the specific division or ownership of assets, action can be taken to enforce the agreement in the Supreme Court for breach of contract. Such an application would typically be for an order that the breaching party surrender the property or be compelled to transfer the title of the asset to the innocent party.
The court can also enforce agreements about parenting time or contact using its extraordinary power to jail a person.


An application for an order that the agreement be enforced as a contract is called an application for the "specific performance" of the agreement: the applicant want the breaching party to be forced to live up to the agreement and take the steps he or she is required to take to complete the agreement.
==Agreements for child support and spousal support==


Both married and unmarried couples can apply to court to enforce the property provisions of a separation agreement.
When a payor falls behind in their support payments as required by an agreement, or stops making them altogether, they are in ''arrears'' of support. The good news is that terms about the payment of child support and spousal support are often the easiest parts of an agreement to enforce.


Once an agreement about support is filed in court, the agreement can be enforced using the general and extraordinary enforcement powers under the ''[[Family Law Act]]''. Under section 148 of the act, filed agreements about child support can also be enforced by the [https://www.bcfma.ca/ BC Family Maintenance Agency]. The agency can enforce agreements about spousal support under section 163.
The Family Maintenance Agency has a free service that can be very effective in encouraging payors to meet their obligations and monitoring their ongoing payments. Their program has a number of tools to collect arrears of support, including a number of tools that aren't available to lawyers who are trying to collect arrears, including seizing payors' passports and driver's licences.
==Agreements about property and debt==
Where an agreement provides for the division of property and debt and someone doesn't live up to their obligations, the agreement can be enforced by starting a court proceeding in the Supreme Court for ''breach of contract'', asking the court to make an order for the "specific performance" of the agreement by the person in breach, plus usually an order for costs. 
An order for ''specific performance'' requires the person breaching a contract to do whatever it is that the contract requires of them, including selling or transferring real property, transferring or surrendering personal property, or paying a debt. An order for costs requires the breaching person to pay some money toward the expenses incurred by the other party to the contract, usually their expenses in connection with the court proceeding they started to enforce the contract.
<!---HIDDEN
==Further Reading in this Chapter==
==Further Reading in this Chapter==


Line 126: Line 155:
* other chapters
* other chapters


==Page Resources and Links==
==Resources and Links==
END HIDDEN--->


Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter.
==Resources and links==


===Legislation===
===Legislation===


*Supreme Court Act
* ''[https://canlii.ca/t/8q3k Family Law Act]''
*SC rules of court
* ''[https://canlii.ca/t/551f9 Divorce Act]''
*Provincial Court Act
* ''[https://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
*PC rules of court
* ''[https://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[https://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[https://canlii.ca/t/8456 Land Title Act]''
* ''[https://canlii.ca/t/8495 Personal Property Security Act]''


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* [http://www.clicklaw.bc.ca/resource/1242 Enforcing Orders and Agreements for Support] from Dial-a-Law by People's Law School
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc.
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Enforcing Support] website from the Department of Justice
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/enforce-execut.html Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement] website from the Department of Justice
* [https://www.bcfma.ca/ BC Family Maintenance Agency website]
* [https://clicklaw.bc.ca/resource/1618 Child & spousal support] from Legal Aid BC
**See "Family Maintenance Agency"
* [https://bit.ly/3QNOw1X Personal Property Registry website]
* [https://family.legalaid.bc.ca/bc-legal-system/court-orders/enforce-order-or-agreement-made-bc Enforce an order or agreement made in BC] from Legal Aid BC
* [https://dialalaw.peopleslawschool.ca/child-support/ Child Support] from Dial-a-Law by the People's Law School
* [https://www.clicklaw.bc.ca/resource/4667 Court orders & hearings] from Legal Aid BC
* [https://www.clicklaw.bc.ca/resource/4341 Income Disclosure for Child Support Purposes] from Canada Department of Justice
* [https://www.isoforms.bc.ca/selecting-forms/ Interjurisdictional Support Orders: FormSelect] from BC Ministry of Attorney General
 
===Resources===
 
* [https://www.clicklaw.bc.ca/resource/4016 "Financial Documents for Family Court"] from the Provincial Court of BC
* [https://www.clicklaw.bc.ca/resource/4829 "Parenting After Separation Handbook: Finances"] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1537 "Families Change: Child Support Resources"] video from Justice Education Society of BC and BC Ministry of Attorney General
* [https://www.clicklaw.bc.ca/resource/1530 "Separated with Children - Dealing with the Finances: Facilitator's Guide"] from the Justice Education Society of BC
* [https://www.clicklaw.bc.ca/resource/1155 "Interjurisdictional Support Orders: Form Support Guide"] from BC Ministry of Attorney General
* [https://www.clicklaw.bc.ca/resource/1883 "Interjurisdictional Support Orders: Forms & Guides"] from BC Ministry of Attorney General


{{REVIEWED | reviewer = [[Beatrice McCutcheon]], 22 November 2023}}


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Latest revision as of 21:20, 12 January 2024

JP Boyd on Family Law
JP Boyd on Family Law
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from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

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Getting Started
Introduction · Family Law in BC
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Divorce Act Basics · Family Law Act Basics
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Family Law Agreements
 · Cohabitation Agreements

 · Marriage Agreements

 · Separation Agreements

 · Changing Agreements

 · Enforcing Agreements
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People who sign a family law agreement are signing a contract. A contract is an agreement between two or more people that creates an obligation to do or to not do something. Other kinds of contracts include the rental agreement a tenant has with a landlord, the lease agreement you might have with a car company, or the purchase agreement you might have with the people from whom you've bought a house. Contracts can be enforced by the courts when someone doesn't do what the contract requires of them; in fact, that's the whole point of having a contract. You want a document that describes your legal obligations to each other and you want to have a way of making the other party do what they're supposed to do.

This section discusses how family law agreements can be enforced by the courts and by the BC Family Maintenance Agency (BCFMA), an agency of the provincial government that can help with the enforcement of agreements for the payment of child support and spousal support. The BCFMA used to be called FMEP, and may still be called that since it operated for decades as the Family Maintenance Enforcement Program.

Introduction

When someone who has signed a family law agreement doesn't do the things the agreement requires, that person is in breach of the agreement. In family law, unlike the law about commercial contracts, a party to an agreement can breach just part of the agreement without being considered to be in breach of the whole agreement. As a result, when someone breaches just a part of a family law agreement, the other party isn't allowed to treat the entire agreement as having been rejected by the breaching party, no matter how important the breach was, and the agreement continues to be binding on both parties.

The Family Law Act says this about family law agreements at section 6:

(1) Subject to this Act, 2 or more persons may make an agreement

(a) to resolve a family law dispute, or

(b) respecting

(i) a matter that may be the subject of a family law dispute in the future,

(ii) the means of resolving a family law dispute or a matter that may be the subject of a family law dispute in the future, including the type of family dispute resolution to be used, or

(iii) the implementation of an agreement or order.

(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.

(4) Subsection (3) applies whether or not

(a) there is consideration,

(b) the agreement has been made with the involvement of a family dispute resolution professional, or

(c) the agreement is filed with a court.

When a term of an agreement is breached, the other party is entitled to take steps to make the breaching party comply with their obligations under the agreement. This is called enforcing the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement has been breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with the allocation of parental responsibilities, can be much harder to deal with.

The Divorce Act doesn't talk about enforcing family law agreements. Sections 7.3 and 7.7 encourage people to resolve family law disputes outside of court if they can, but the act doesn't give the court any tools to enforce the agreements that may result from resolving a dispute out of court.

Enforcement under the Family Law Act

The Family Law Act allows certain family law agreements about certain subjects to be filed in court and enforced under the act:

  • agreements on parental responsibilities and parenting time can be filed under s. 44(3), including agreements that talk about decision-making responsibilities instead of parental responsibilities,
  • agreements for contact with a child can be filed under s. 58(3),
  • agreements for child support can be filed under s. 148(2), and
  • agreements for spousal support can be filed under s. 163(3).

Once filed in court, these agreements can be enforced under the Family Law Act in the same way as court orders are enforced under the act.

The act has different ways of enforcing orders that change depending on the subject of the order (or the agreement). Where the act provides a particular way of enforcing an order, the order can be enforced under that specific enforcement power and by extraordinary enforcement powers the act gives to the court. Where the act does not provide a particular way of enforcing an order, the order can be enforced under the act's general enforcement powers and under its extraordinary enforcement powers.

General enforcement powers

Under section 230 of the Family Law Act, the court can enforce an order (or agreement) by requiring a person to:

  • post security for their future compliance, usually by paying a sum of money into court,
  • pay the expenses the other party incurred as a result of the person's breach,
  • pay up to $5,000 to the other party, or to a child or a spouse who was affected by the person's breach, or
  • pay up to $5,000 as a fine.

This part of the Family Law Act applies to agreements about parental responsibilities, child support, and spousal support.

Extraordinary enforcement powers

Under section 231 of the Family Law Act, when no other order will be sufficient to make someone comply with an order (or an agreement), the court can enforce the order (or the agreement) by imprisoning the breaching party for up to 30 days. You will need to prove to the court that no other order will be effective in making the breaching party comply with an agreement, and that's a very high bar to reach. And, because putting someone in jail is such a drastic step, don't expect the court to do this except in the most extreme circumstances.

This part of the act applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support.

Enforcement under other legislation

While the federal Divorce Act doesn't talk about family law agreements, including the enforcement of agreements, other laws do, including the provincial Family Maintenance Enforcement Act and the provincial Personal Property Security Act.

Orders about child support and spousal support

Under sections 148 and 163 of the Family Law Act, an agreement about child support or spousal support that has been filed in court can also be enforced under the Family Maintenance Enforcement Act and the Court Order Enforcement Act. Filing an agreement with the Family Maintenance Agency can be very helpful, as the program provides its services for free and can take some steps, like seizing passports and driver's licences, that lawyers can't.

Agreements about child support or spousal support made outside of British Columbia can be filed in court here under the Interjurisdictional Support Orders Act, and then be enforced under the Family Maintenance Enforcement Act.

Orders about property

Under section 99 of the Family Law Act, a party to a family law agreement about property can file a Notice of Agreement in the Land Title Office that will be registered as a charge on the title of a property under the Land Title Act. This will stop the property from being sold or mortgaged until the Notice of Agreement is cancelled.

Not all homes are houses attached to a piece of land. Under section 100 of the act, a party to a family law agreement about a manufactured home (a structure like a trailer home that is designed to be towed or carried from one place to another) can file a Financing Statement in the Personal Property Registry that will be registered against the manufactured home under the Personal Property Security Act. This will stop the manufactured home from being sold until the Financing Statement is cancelled.

Agreements about the care of children

Under the federal Divorce Act, married spouses have decision-making responsibilities for their children, and the schedule of their time with the children is called parenting time. People who are not married spouses may have contact with a child.

Under the provincial Family Law Act, guardians, who may or may not be parents, have parental responsibilities for raising the children, and the schedule of their time with the children is called parenting time. People who are not guardians, including parents who are not guardians, may have contact with a child.

Decision-making responsibilities means more or less the same thing as parental responsibilities, although the Family Law Act goes into a lot more detail about the sort of decisions that parental responsibilities includes than the Divorce Act does. The court will enforce agreements that talk about decision-making responsibilities as if the agreement was about parental responsibilities.

Parental responsibilities

An agreement about parental responsibilities can be filed in court under section 44(3) of the Family Law Act and be enforced through the act's general and extraordinary enforcement powers.

Parenting time and contact

A written agreement about parenting time can be filed in court under section 44(3); a written agreement about contact with a child can be filed in court under section 58(3). These agreements can be enforced through the specific enforcement powers found in sections 61 and 63, as well as the act's extraordinary enforcement powers.

Denial of parenting time or contact

Under section 61, where someone has been wrongfully denied parenting time or contact in the previous 12 months, the court can:

(a) require the parties to participate in family dispute resolution;

(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;

(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;

(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;

(e) require that the transfer of the child from one party to another be supervised by another person named in the order;

(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to

(i) give security in any form the court directs, or

(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(g) require the guardian to pay

(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or

(ii) a fine not exceeding $5 000.

The court can enforce agreements for parenting time or contact using its extraordinary power to jail someone, as well as certain other extraordinary powers intended for problems like these. Under section 231(4), where a guardian withholds parenting time or contact, the court can require a police officer to take the child to the person entitled to parenting time or contact. Under section 231(5), where a person with contact refuses to return the child to their guardian, the court can require a police officer to take the child to their guardian.

Under section 62(2), the denial of parenting time or contact is not wrongful under the following circumstances:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;

(e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and

(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

Failure to exercise parenting time or contact

Under section 63, where someone fails repeatedly to exercise a right of parenting time or contact under an agreement, the court can:

  • require the parties to use a dispute resolution process, such as parenting coordination or mediation,
  • require one or more parties or the child to go to counselling,
  • require the transfer of the child between the parties to be supervised,
  • require the person who fails to use their parenting time or contact to pay back any expenses incurred by the other person as a result of their failure,
  • require the breaching person to post security, or
  • require the breaching person to report to the court.

The court can also enforce agreements about parenting time or contact using its extraordinary power to jail a person.

Agreements for child support and spousal support

When a payor falls behind in their support payments as required by an agreement, or stops making them altogether, they are in arrears of support. The good news is that terms about the payment of child support and spousal support are often the easiest parts of an agreement to enforce.

Once an agreement about support is filed in court, the agreement can be enforced using the general and extraordinary enforcement powers under the Family Law Act. Under section 148 of the act, filed agreements about child support can also be enforced by the BC Family Maintenance Agency. The agency can enforce agreements about spousal support under section 163.

The Family Maintenance Agency has a free service that can be very effective in encouraging payors to meet their obligations and monitoring their ongoing payments. Their program has a number of tools to collect arrears of support, including a number of tools that aren't available to lawyers who are trying to collect arrears, including seizing payors' passports and driver's licences.

Agreements about property and debt

Where an agreement provides for the division of property and debt and someone doesn't live up to their obligations, the agreement can be enforced by starting a court proceeding in the Supreme Court for breach of contract, asking the court to make an order for the "specific performance" of the agreement by the person in breach, plus usually an order for costs.

An order for specific performance requires the person breaching a contract to do whatever it is that the contract requires of them, including selling or transferring real property, transferring or surrendering personal property, or paying a debt. An order for costs requires the breaching person to pay some money toward the expenses incurred by the other party to the contract, usually their expenses in connection with the court proceeding they started to enforce the contract.


Resources and links

Legislation

Links

Resources

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Beatrice McCutcheon, 22 November 2023.


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