Enforcing Family Law Agreements

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People who sign a family law agreementAn agreement between two or more persons about family law issues that have arisen or made arise, dealing with their respective rights and obligations to one another, which the parties expect will be binding on them and be enforceable in court. Typical family law agreements include marriage agreements, cohabitation agreements and separation agreements. are signing a contractAn agreement between two or more people, giving them obligations towards each other that can be enforced in court. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract.. A contract is an agreement between two or more people that creates an obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to do or to not do something. Other kinds of contracts include the rental agreement a tenant has with a landlord, the leaseAn agreement which requires payment for the use of property, under which the owner of property, like a car or an apartment, gives up the right to occupy and use that property in exchange for a sum of money. A "lessor" is the person who retains ownership of the property and receives money for its use. A "lessee" is the person who purchases the right of possession and use of the property. 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 partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." 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 supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses. and spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship..

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 bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." 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 resolutionThe processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. to be used, or
(iii) the implementation of an agreement or orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration.".
(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 agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." 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 responsibilitiesA term under the ''Family Law Act'' which describes the various rights, duties and responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian.", can be much harder to deal with.

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 actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.":

  • agreements on parental responsibilities and parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian." can be filed under s. 44(3),
  • agreements for contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." 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 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 way 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.

General enforcement power

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 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 spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." who was affected by the person's breach, or
  • 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 breaching party for up to 30 days.

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

Enforcement under other legislationAn act; a statute; a written law made by a government. See "regulations."

The federal Divorce Act does not address the enforcement of family law agreements, however other laws do, such as the provincial Family Maintenance Enforcement Act and the provincial Personal Property Security Act.

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 propertySomething which can be owned. See "chattels" and "real 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 that will be registered as a charge on the titleIn law, a document demonstrating ownership of a thing. See "ownership." of a property under the Land Title Act. This will stop the property from being transferred or mortgaged until the Notice of Agreement is cancelled.

Under s. 100 of the act, a party to a family law agreement about a manufactured home 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 transferred until the Financing Statement is cancelled.

Agreements about the care of children

Under the federal Divorce Act, married spouses have custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." of their children, and the schedule of their time with the children is called accessUnder the ''Divorce Act'', the schedule of a parent's time with their children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody.". 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 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 childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.".

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

A written agreement about parenting time can be filed in court under s. 44(3); a written agreement about contact with a child 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 guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time.", the child, to attend counselling, specified services or programs;
(c) specify a period of time during which the applicantA party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application." 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 denialIn law, defending a claim by denying the truth of a fact supporting the claim; a rejection of the truth of facts alleged., 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 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 their guardian, the court can require a police officer to take the child to their 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:

  • require the parties to attend a course of dispute resolution,
  • 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 reimbursement of expenses incurred as a result of the failure,
  • require the posting of security, or
  • require the breaching person to report to the court.

The court can enforce these agreements 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 said to be in arrearsChild support or spousal support that is owing because of an order or agreement but is unpaid. 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 their obligations and monitor ongoing payments.

Agreements about property and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

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 proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. in the Supreme Court for breach of contractActing or not acting in a manner that is contrary to the terms of a contract. In family law, the breach of one party usually gives rise to a cause of action for the other party, allowing that party to sue for breach of contract, but the breach is unlikely to allow that party to treat the agreement as if it were cancelled or had been voided., asking the court to make an order for the specific performanceIn contract law, the fulfillment of an obligation or duty arising from a contract. of the agreement by the person in breach, plus an order for costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees.". 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 propertyA parcel of land and the buildings on that land. See "chattel," "ownership" and "possession.", surrendering personal propertyChattels, goods, money; property other than real property. See "chattel" and "real property.", or paying a debt. An order for costs requires the breaching person to pay some money toward the cost of the court proceeding.

Resources and links

Legislation

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