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}}


People who sign a family law agreement are signing a ''contract''. A contract is aformal document that sets out each person's obligations to the other in a
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.
Contracts are binding on the people who signed them and can be enforced by the courts. In fact, that's the whole point of a contract — to make a wayt


'''DRAFT'''
'''DRAFT'''
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==Introduction==
==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 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 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:


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.
<blockquote><tt>(1) Subject to this Act, 2 or more persons may make an agreement</tt></blockquote>
<blockquote><blockquote><tt>(a) to resolve a family law dispute, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) respecting</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a matter that may be the subject of a family law dispute in the future,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(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</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the implementation of an agreement or order.</tt></blockquote></blockquote></blockquote>
<blockquote><tt>(3) Subject to this Act, an agreement respecting a family law dispute is binding on the parties.</tt></blockquote>
<blockquote><tt>(4) Subsection (3) applies whether or not</tt></blockquote>
<blockquote><blockquote><tt>(a) there is consideration,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the agreement has been made with the involvement of a family dispute resolution professional, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the agreement is filed with a court.</tt></blockquote></blockquote>


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''===
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#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);
#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, can be enforced as order, orders enforced under specific, general and extraordinary
====General Enforcement Power====


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


===Enforcement Under other Legislation==
#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 spouse who was affected by the person's breach; or,
#to pay up to $5,000 as a fine.


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


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.
====Extraordinary Enforcement Power====


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''.
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.


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


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.
===Enforcement Under other Legislation==
 
 
 
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.
 
 
 
 
 
 
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.


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 of the ''Family Law Act'', 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 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''.


ISOA, COEA


Orders respecting agreements
Orders respecting agreements
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