Difference between revisions of "Enforcing Family Law Agreements"

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Enforcing Family Law Agreements (view source)

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


When a party to a family law agreement doesn't fulfil his or her obligations under the agreement, that person is said to be in breach of the agreement or in breach of contract. In family law, unlike commercial contract law, a breach is considered to be limited to the particular term of the agreement which was disobeyed rather than to the agreement as a whole. As a result, the innocent party is not allowed to treat an agreement as broken or cancelled because the other person has breached it, no matter how important the part of the agreement that was breached might be.
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 commercial contract law, 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 a term of an agreement is breached, the innocent party is entitled to take steps to compel the other party to comply with the agreement. This is called enforcing the agreement. How a separation agreement is enforced depends largely on which particular term of the agreement is breached. Some terms, like those dealing with child support, are fairly easy to enforce. Other terms, like those dealing with access, are 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 is 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.
 
'''DRAFT'''


==Filing Agreements in Court==
==Filing Agreements in Court==


The Family Relations Act allows family agreements to be filed in court. Once an agreement is filed, the parts dealing with children, child support and spousal support can be enforced as if the agreement were an order of the court. This is not to say that a filed agreement is an order of the court, only that it can be enforced as if it were an order.
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 for ''contact'' can be filed under s. 58(3);
#agreements for ''child support'' can be filed under s. 148(2);
#agreements for ''spousal support'' can be filed under s. 163(3);
 
 
Once filed, can be enforced as order, orders enforced under specific, general and extraordinary
 
Under s.
 
Under s. 99, 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 ss. 148 and 163, an agreement about child support or spousal support that has been filed in court can be enforced under the ''Family Maintenance Enforcement Act''.
 
 
Once an agreement is filed, the parts dealing with children, child support and spousal support can be enforced as if the agreement was an order of the court. This is not to say that a filed agreement ''is'' an order of the court, only that it can be enforced ''as if'' it were an order.
 
 
 
Agreements respecting family law disputes generally
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.
(2) A single agreement may be made respecting one or more matters.
(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.
(5) A child who is a parent or spouse may enter into and be bound by an agreement, including an agreement respecting the division of property or debt.
 
 
 
 


Two sections of the act are relevant:


121 (1) In this section:
"child" means a person who is acknowledged in a written agreement filed under this section to be the responsibility of a party to the agreement and who is
(a) under the age of 19 years, or
(b) 19 years of age or older and, in relation to the party to the agreement, is unable, because of illness, disability or other cause, to withdraw from that party's charge or to obtain the necessaries of life;
"parent" means a person who acknowledges in a written agreement filed under this section a responsibility for a child;
"spouse" means a spouse as described in paragraph (a), (b) or (c) of the definition of "spouse" in section 1 (1) and includes a person who acknowledges in a written agreement filed under this section that he or she is or was a spouse of another person, whether or not they are or were married.
(2) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
is filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(4) A provision that is referred to in subsection (2) and is contained in a written agreement filed under this section may, at any time, be varied or rescinded
(a) by a new written agreement filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, or
(b) by the Provincial Court, on application and subject to sections 20 and 96.
(5) The filing of a written agreement under this section does not
(a) restrict or prevent a court from making an order for the same relief as is provided for in the agreement, or
(b) prevent the agreement from being filed or enforced in the Supreme Court under section 122.
122 (1) If a signed copy of a written agreement containing a provision respecting
(a) the custody of or access to a child by a parent, or
(b) the maintenance of a child by a parent or of a person by the person's spouse
is filed in the Supreme Court in accordance with the Rules of Court, the provision is enforceable under this Act or the Family Maintenance Enforcement Act as if it were contained in an order made under this Act.
(3) The filing of a written agreement under this section does not prevent the agreement from being filed, enforced, varied or rescinded in the Provincial Court under section 121.
In other words, written agreements can be filed in either the Provincial (Family) Court or the Supreme Court and be enforced as if they were orders of those courts, but only the Provincial (Family) Court can vary an agreement.
In other words, written agreements can be filed in either the Provincial (Family) Court or the Supreme Court and be enforced as if they were orders of those courts, but only the Provincial (Family) Court can vary an agreement.


In my view, family law agreements should be filed in court as a matter of course where there are any concerns at all about a party's ongoing compliance with an agreement.
In my view, family law agreements should be filed in court as a matter of course where there are any concerns at all about a party's ongoing compliance with an agreement.
Orders respecting agreements
214 (1) If an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement.
(2) A court may incorporate into an order all or part of a written agreement respecting a family law dispute made by the parties to the proceeding and, unless the court orders otherwise,
(a) the order replaces that part of the agreement that is incorporated, and
(b) the remainder of the agreement remains effective.
(3) Unless the court orders otherwise, if an agreement and an order made after the agreement provide differently for the same subject matter,
(a) the order replaces the part of the agreement that provides differently for the same subject matter, and
(b) the remainder of the agreement remains effective.
(4) A court may on application by a party to family dispute resolution make an order requiring the other party to pay all or part of the applicant's expenses in relation to the family dispute resolution if satisfied that
(a) the other party knowingly failed to disclose relevant information, and
(b) an order is made under section 93 [setting aside agreements respecting property division] or 164 [setting aside agreements respecting spousal support] to set aside all or part of an agreement arising from the family dispute resolution.


==Custody of Children==
==Custody of Children==
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