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Difference between revisions of "Enforcing Family Law Agreements"

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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.
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.  
This page 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.  
 
'''JP done. No glossary tags to be added, as well as internal and external links.'''


==Introduction==
==Introduction==
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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.
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:
The ''[[Family Law Act]]'' says this about family law agreements at s. 6:


<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
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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.
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''===
===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:
The ''[[Family Law Act]]'' allows certain family law agreements 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),
#agreements for ''contact'' can be filed under s. 58(3);
*agreements for ''contact'' 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 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.  
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====
====General enforcement power====


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


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


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


====Extraordinary Enforcement Power====  
====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.
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.
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This provision applies to agreements about parental responsibilities, parenting time, contact, child support and spousal support.
This provision applies to agreements about parental responsibilities, parenting time, contact, child support and spousal support.


===Enforcement Under other Legislation===
===Enforcement under other legislation===


====Orders About Child Support and Spousal Support====
====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''.
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 ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 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''.
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''.


====Orders About Property====
====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.
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 ''[http://canlii.ca/t/8456 Land Title Act].'' This will stop the property from transferred or mortgaged until the Notice of Agreement is cancelled. Under s. 100, a party to a family law agreement about a manufactured home can file a ''Financing Statement'' in the [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry] which 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 transferred 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 ''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.  
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===
===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.
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===
===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.
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====
====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:
Under s. 61 where someone has been ''wrongfully denied'' parenting time or contact in the previous 12 months, the court can:
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<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>


====Failure to Exercise Parenting Time or Contact====
====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:
Under s. 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 attend a course of dispute resolution,
#require one or more parties or the child to attend counselling;
*require one or more parties or the child to attend counselling,
#require the transfer of the child between the parties to be supervised;
*require the transfer of the child between the parties to be supervised,
#require the reimbursement of expenses incurred as a result of the failure;
*require the reimbursement of expenses incurred as a result of the failure,
#require the posting of security; or,
*require the posting of 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 enforce these agreements using its extraordinary power to jail a person.


==Agreeements for Child Support and Spousal Support==
==Agreements for child support and spousal support==


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.
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.


Once an agreement is filed in court, under s. 148 of the ''Family Law Act'' for child support and s. 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 Family Maintenance Enforcement Program. This is a free service that can be very effective in forcing a payor to meet his or her obligations and monitor ongoing payments.  
Once an agreement is filed in court, under s. 148 of the ''[[Family Law Act]]'' for child support and s. 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 his or her obligations and monitor ongoing payments.  


==Agreements about Property and Debt==
==Agreements about property and debt==


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.
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.
 
<!---HIDDEN
==Further Reading in this Chapter==
==Further Reading in this Chapter==


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==Page Resources and Links==
==Page Resources and Links==
END HIDDEN--->
===Legislation===


===Legislation===
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/840m Family maintenance Enforcement Act]
* [http://canlii.ca/t/84h5  Court Order Enforcement Act]
* [http://canlii.ca/t/8456 Land Title Act]
* [http://canlii.ca/t/8495 Personal Property Security Act]


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


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]
public resources
* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/index.html Department of Justice: About support enforcement]
 
* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program Wesbite]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.familylaw.lss.bc.ca/help/who_Family_Maintenance_Enforcement_Program.php Legal Services Society’s Family Law Website: Information about FMEP]
* [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page BC Personal Property Registry Website]


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