Enforcing Family Law Agreements

People who sign a family law agreement are signing a contract. A contract is aformal document that sets out each person's obligations to the other in a

Contracts are binding on the people who signed them and can be enforced by the courts. In fact, that's the whole point of a contract — to make a wayt 

DRAFT

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 commercial contract law, 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 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 is 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 Family Law Act allows certain family law agreements to be filed in court and enforced under the act:

1. agreements on parental responsibilities and parenting time can be filed under s. 44(3);
2. agreements for contact can be filed under s. 58(3);
3. agreements for child support can be filed under s. 148(2);
4. agreements for spousal support can be filed under s. 163(3);

Once filed, can be enforced as order, orders enforced under specific, general and extraordinary

Under s.

=Enforcement Under other Legislation

Under s. 99, 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.

Under s. 100, 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.

Under ss. 148 and 163, an agreement about child support or spousal support that has been filed in court can be enforced under the Family Maintenance Enforcement Act.

Once an agreement is filed, the parts dealing with children, child support and spousal support can be enforced as if the agreement was an order of the court. This is not to say that a filed agreement is an order of the court, only that it can be enforced as if it were an order.

Agreements respecting family law disputes generally 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. (2) A single agreement may be made respecting one or more matters. (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. (5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt.

In other words, written agreements can be filed in either the Provincial (Family) Court or the Supreme Court and be enforced as if they were orders of those courts, but only the Provincial (Family) Court can vary an agreement.

In my view, family law agreements should be filed in court as a matter of course where there are any concerns at all about a party's ongoing compliance with an agreement.

Orders respecting agreements 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, (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.

Custody of Children

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.

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.

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.

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.

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.

Access to Children

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.

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.

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.

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.

Child and Spousal Support

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.

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.

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.

Property

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.

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.

Both married and unmarried couples can apply to court to enforce the property provisions of a separation agreement.

Further Reading in this Chapter

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