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 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 BC Family Maintenance Agency (BCFMA), an agency of the provincial government that can help with the enforcement of agreements for the payment of child support and spousal support. The BCFMA used to be called FMEP, and may still be called that since it operated for decades as the Family Maintenance Enforcement Program.
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 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 section 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 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
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), including agreements that talk about decision-making responsibilities instead of parental responsibilities,
- 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 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 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 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 powers
Under section 230 of the Family Law Act, the court can enforce an order (or agreement) by requiring a person to:
- post security for their future compliance, usually by paying a sum of money into court,
- pay the expenses the other party incurred as a result of the person's breach,
- 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
- pay up to $5,000 as a fine.
This part of the Family Law Act applies to agreements about parental responsibilities, child support, and spousal support.
Extraordinary enforcement powers
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 part of the act applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support.
Enforcement under other legislation
While the federal Divorce Act doesn't talk about family law agreements, including the enforcement of agreements, other laws do, including the provincial Family Maintenance Enforcement Act and the provincial Personal Property Security Act.
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 Family Maintenance Enforcement Act and the Court Order Enforcement Act. Filing an agreement with the Family Maintenance Agency 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 here under the Interjurisdictional Support Orders Act, and then be enforced under the Family Maintenance Enforcement Act.
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 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 Personal Property Registry that will be registered against the manufactured home under the 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
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 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
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
A written agreement about parenting time can be filed in court under section 44(3); a written agreement about contact with a child can be filed in court under section 58(3). These agreements can be enforced through the specific enforcement powers found in sections 61 and 63, as well as the act's extraordinary enforcement powers.
Denial of parenting time or contact
Under section 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 agreements for parenting time or contact using its extraordinary power to jail someone, as well as certain other extraordinary powers intended for problems like these. Under section 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 section 231(5), where a person with contact refuses to return the child to their guardian, the court can require a police officer to take the child to their guardian.
Under section 62(2), the denial of parenting time or contact is not wrongful under the following circumstances:
(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 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 use a dispute resolution process, such as parenting coordination or mediation,
- require one or more parties or the child to go to counselling,
- require the transfer of the child between the parties to be supervised,
- 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 breaching person to post security, or
- require the breaching person to report to the court.
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
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 BC Family Maintenance Agency. The agency can enforce agreements about spousal support under section 163.
The Family Maintenance Agency has a free service that can be very effective in encouraging payors to meet their obligations and monitoring their ongoing payments. Their 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
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.
Resources and links
Legislation
- Family Law Act
- Divorce Act
- Interjurisdictional Support Orders Act
- Family Maintenance Enforcement Act
- Court Order Enforcement Act
- Land Title Act
- Personal Property Security Act
Links
- Enforcing Orders and Agreements for Support from Dial-a-Law by People's Law School
- Enforcing Support website from the Department of Justice
- Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement website from the Department of Justice
- BC Family Maintenance Agency website
- Family Maintenance Agency information from Legal Aid BC
- Personal Property Registry website
- Enforce an order or agreement made in BC from Legal Aid BC
- Child Support from Dial-a-Law by the People's Law School
- Income Disclosure for Child Support Purposes Fact Sheet from the Department of Justice
- Interjurisdictional Support Orders from BC Ministry of Attorney General
Resources
- Financial Documents for Family Court from the Provincial Court of BC
- Parenting After Separation Handbook: Finances from the Justice Education Society of BC
- Parenting After Separation: Finances online course from the Justice Education Society of BC
- Interjurisdictional Support Orders: Forms & Guides from BC Ministry of Attorney General
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Beatrice McCutcheon, 22 November 2023. |
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
|
