Enforcing Family Law Agreements

When a party to a family law agreement doesn't fulfil his or her obligations under the agreement, that person is said to be in breach of the agreement or in breach of contract. In family law, unlike commercial contract law, a breach is considered to be limited to the particular term of the agreement which was disobeyed rather than to the agreement as a whole. As a result, the innocent party is not allowed to treat an agreement as broken or cancelled because the other person has breached it, no matter how important the part of the agreement that was breached might be.

When a term of an agreement is breached, the innocent party is entitled to take steps to compel the other party to comply with 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 access, are much harder to deal with.

Filing Agreements in Court

The Family Relations Act allows family agreements to be filed in court. Once an agreement is filed, the parts dealing with children, child support and spousal support can be enforced as if the agreement were 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.

Two sections of the act are relevant:

121 (1) In this section: "child" means a person who is acknowledged in a written agreement filed under this section to be the responsibility of a party to the agreement and who is (a) under the age of 19 years, or (b) 19 years of age or older and, in relation to the party to the agreement, is unable, because of illness, disability or other cause, to withdraw from that party's charge or to obtain the necessaries of life; "parent" means a person who acknowledges in a written agreement filed under this section a responsibility for a child; "spouse" means a spouse as described in paragraph (a), (b) or (c) of the definition of "spouse" in section 1 (1) and includes a person who acknowledges in a written agreement filed under this section that he or she is or was a spouse of another person, whether or not they are or were married. (2) If a signed copy of a written agreement containing a provision respecting (a) the custody of or access to a child by a parent, or (b) the maintenance of a child by a parent or of a person by the person's spouse is filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act. (4) A provision that is referred to in subsection (2) and is contained in a written agreement filed under this section may, at any time, be varied or rescinded (a) by a new written agreement filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, or (b) by the Provincial Court, on application and subject to sections 20 and 96. (5) The filing of a written agreement under this section does not (a) restrict or prevent a court from making an order for the same relief as is provided for in the agreement, or (b) prevent the agreement from being filed or enforced in the Supreme Court under section 122. 122 (1) If a signed copy of a written agreement containing a provision respecting (a) the custody of or access to a child by a parent, or (b) the maintenance of a child by a parent or of a person by the person's spouse is filed in the Supreme Court in accordance with the Rules of Court, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act. (3) The filing of a written agreement under this section does not prevent the agreement from being filed, enforced, varied or rescinded in the Provincial Court under section 121. 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.

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.

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