Difference between revisions of "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.

==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.

<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></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.

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.  

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

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.

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.  

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.

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.

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

<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

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

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

When a payor falls behind in his or her support payments as required by an agreement, or stops making them altogether, he or she is said to be in ''arrears'' of support. Support is often the easiest part of an agreement to enforce.

Where an agreement provides for the division property and debt and someone doesn't live up to his or her 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 an order for costs.  An order for the specific performance of an agreement requires the breaching person to do whatever it is that the agreement required of him or her, like transferring real property, surrendering personal property or paying a debt. An order for costs requires the breaching person to pay some money toward the cost of the court proceeding.

==Further Reading in this Chapter==

==Page Resources and Links==

===Links===

{{JP Boyd on Family Law Navbox|type=chapters}}