Difference between revisions of "Enforcing Family Law Agreements"

Jump to navigation Jump to search

Enforcing Family Law Agreements (view source)

Revision as of 15:47, 27 June 2022

3,861 bytes added ,  15:47, 27 June 2022
From staging June 2022
(From staging June 2022)
Line 3: Line 3:
}}
}}


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 to do.
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 [[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 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.  


==Introduction==
==Introduction==
Line 26: Line 26:


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.
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''===
===Enforcement under the ''Family Law Act''===
Line 31: Line 33:
The ''[[Family Law Act]]'' allows certain family law agreements about certain subjects to be filed in court and enforced under the 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),
*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'' can be filed under s. 58(3),
*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 ''child support'' can be filed under s. 148(2), and
*agreements for ''spousal support'' can be filed under s. 163(3).
*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 are enforced under the act.  
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 agreement). Where the act provides a particular way of enforcing an order, the order can be enforced under that ''specific'' enforcement 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.  
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 power====
====General enforcement powers====


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


*to post security, usually by paying a sum of money into court,
*post security for their future compliance, usually by paying a sum of money into court,
*to pay the expenses the other party incurred from the person's breach,
*pay the expenses the other party incurred as a result of 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
*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
*to pay up to $5,000 as a fine.
*pay up to $5,000 as a fine.


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


====Extraordinary enforcement power====  
====Extraordinary enforcement powers====  


Under section 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 breaching party for up to 30 days.
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 provision applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support.
This part of the act applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support.


===Enforcement under other legislation===
===Enforcement under other legislation===


The federal ''[[Divorce Act]]'' does not address the enforcement of family law agreements, however other laws do, such as the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the provincial ''[http://canlii.ca/t/8495 Personal Property Security 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]''.


====Orders about child support and spousal support====
====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 ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''.
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 Enforcement Program 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 under the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and then be enforced under the  ''Family Maintenance Enforcement Act''.
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''.


====Orders about property====
====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 ''[http://canlii.ca/t/8456 Land Title Act].'' This will stop the property from being transferred or mortgaged until the Notice of Agreement is cancelled.  
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 ''[http://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 [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry] that will be registered against the manufactured home under the ''[http://canlii.ca/t/8495 Personal Property Security Act]''. This will stop the manufactured home from being transferred until the Financing Statement 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 [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry] that will be registered against the manufactured home under the ''[http://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==
==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 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 ''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 ''parenting time''. People who are not guardians 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===
===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.
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===
===Parenting time and contact===
Line 118: Line 122:
====Failure to exercise parenting time or contact====
====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:
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 attend a course of dispute resolution,
*require the parties to use a dispute resolution process, such as parenting coordination or mediation,
*require one or more parties or the child to attend counselling,
*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 <span class="noglossary">transfer</span> of the child between the parties to be supervised,
*require the reimbursement of expenses incurred as a result of the failure,
*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 posting of security, or
*require the breaching person to post security, or
*require the breaching person to report to the court.
*require the breaching person to report to the court.


The court can enforce these agreements using its extraordinary power to jail a person.
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==
==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 said to be in ''arrears'' of support. Support is often the easiest part of an agreement to enforce.
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 provincial [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program]. The program can enforce agreements about spousal support under section 163.


Once an agreement is filed in court, under section 148 of the ''[[Family Law Act]]'' for child support and section 163 for spousal support, the agreement can be enforced through the act's general and extraordinary enforcement powers. Filed agreements can also be enforced by the provincial [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program]. This is a free service that can be very effective in forcing a payor to meet their obligations and monitor ongoing payments.  
The Family Maintenance Enforcement Program is a free service that can be very effective in encouraging payors to meet their obligations and monitoring their ongoing payments. The 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==
==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 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 them, 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.
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
<!---HIDDEN
==Further Reading in this Chapter==
==Further Reading in this Chapter==
Line 152: Line 161:
===Legislation===
===Legislation===


* ''[[Family Law Act]]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[[Divorce Act]]''
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
Line 162: Line 171:
===Links===
===Links===


* [http://www.clicklaw.bc.ca/resource/1242 Dial-A-Law Script "Enforcing Orders and Agreements for Support"]
* [http://www.clicklaw.bc.ca/resource/1242 Enforcing Orders and Agreements for Support] from Dial-a-Law by People's Law School
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice's website "Enforcing Support"]
* [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 Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [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
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [https://clicklaw.bc.ca/resource/1618 Legal Services Society’s Family Law website's information page "Child & spousal support"]
* [https://clicklaw.bc.ca/resource/1618 Child & spousal support] from Legal Aid BC
**See "Family Maintenance Enforcement Program"  
**See "Family Maintenance Enforcement Program"  
* [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry website]
* [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry website]
* [https://www.clicklaw.bc.ca/resource/4005 Family Maintenance Enforcement Program: Enforcing Orders Outside BC] from the BC Ministry of Attorney General
* [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.clicklaw.bc.ca/resource/1154 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]], June 9, 2019}}
{{REVIEWED | reviewer = [[JP Boyd]], March 21, 2021}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}
Retrieved from "https://stagewiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/52417"

Navigation menu