Enforcing Family Law Agreements

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.

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.

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 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.

The Family Law Act says this about family law agreements at s. 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 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.

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); and,
4. 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.

General Enforcement Power

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

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

These provisions apply to agreements about parental responsibilities, child support and spousal support.

Extraordinary Enforcement Power

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 provision applies to agreements about parental responsibilities, parenting time, contact, child support and spousal support.

Enforcement Under other Legislation

Orders About Child Support and Spousal Support

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 and the Court Order Enforcement Act.

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

Orders About Property

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. 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.

Agreements about the Care of Children

Under the federal Divorce Act, married spouses have custody of their children, and the schedule of their time with the children is called access. Married spouses could make an agreement talking about the care of their children in terms of custody and access, but should probably use the language used by the provincial Family Law Act because only that act provides specifically for the enforcement of agreements.

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

Parental Responsibilities

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

Parenting Time and Contact

An agreement about parenting time can be filed in court under s. 44(3); an agreement about parenting time can be filed in court under s. 58(3). These agreements can be enforced through the specific enforcement powers found in ss. 61 and 63 as well as the act's extraordinary enforcement powers.

Denial of Parenting Time or Contact

Under s. 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 these agreements using its extraordinary power to jail someone, as well as certain other extraordinary powers intended for problems like these. Under s. 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 s. 231(5), where a person with contact refuses to return the child to his or her guardian, the court can require a police officer to take the child to his or her guardian.

Under s. 62(2), the denial of parenting time or contact is not wrongful if:

(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 s. 63 where someone "fails repeatedly" to exercise a right of parenting time or contact under an agreement, the court can:

1. require the parties to attend a course of dispute resolution;
2. require one or more parties or the child to attend counselling;
3. require the transfer of the child between the parties to be supervised;
4. require the reimbursement of expenses incurred as a result of the failure;
5. require the posting of security; or,
6. require the breaching person to report to the court.

The court can enforce these agreements using its extraordinary power to jail someone.

Agreeements for Child Support 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 often the easiest part of an agreement to enforce.

Once an agreement is filed in court, under s. 148 for child support and s. 163 for spouses support, 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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Page Resources and Links

Legislation

FLA, DA, ISOA, FMEA, COEA, Land Title Act, Personal Property Registry Act, etc

Links

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