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Enforcing Family Law Agreements (view source)
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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 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 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 | The ''[[Family Law Act]]'' says this about family law agreements at section 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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====General enforcement power==== | ====General enforcement power==== | ||
Under | Under section 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, | ||
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====Extraordinary enforcement power==== | ====Extraordinary enforcement power==== | ||
Under | Under section 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. | This provision applies to agreements about parental responsibilities, parenting time, contact, child support, and spousal support. | ||
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====Orders about child support and spousal support==== | ====Orders about child support and spousal support==== | ||
Under | 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 ''[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 ''[http://canlii.ca/t/84l3 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''. | ||
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====Orders about property==== | ====Orders about property==== | ||
Under | 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 ''[http://canlii.ca/t/8456 Land Title Act].'' This will stop the property from being transferred or mortgaged until the Notice of Agreement is cancelled. | ||
Under | 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 [http://www.bcregistryservices.gov.bc.ca/bcreg/pprpg/ppinfo.page Personal Property Registry] that 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 being transferred until the Financing Statement is cancelled. | ||
==Agreements about the care of children== | ==Agreements about the care of children== | ||
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===Parental responsibilities=== | ===Parental responsibilities=== | ||
An agreement about parental responsibilities can be filed in court under | 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=== | ===Parenting time and contact=== | ||
A written agreement about parenting time can be filed in court under | 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==== | ====Denial of parenting time or contact==== | ||
Under | Under section 61, where someone has been ''wrongfully denied'' parenting time or contact in the previous 12 months, the court can: | ||
<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote> | <blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote> | ||
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<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote> | ||
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 | 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 | Under section 62(2), the denial of parenting time or contact is not wrongful if: | ||
<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote> | <blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote> | ||
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====Failure to exercise parenting time or contact==== | ====Failure to exercise parenting time or contact==== | ||
Under | 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 attend a course of dispute resolution, | *require the parties to attend a course of dispute resolution, | ||
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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 ''arrears'' of support. Support is often the easiest part of an agreement to enforce. | 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 ''arrears'' of support. Support is often the easiest part of an agreement to enforce. | ||
Once an agreement is filed in court, under | Once an agreement is filed in court, under section 148 of the ''[[Family Law Act]]'' for child support and section 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 their obligations and monitor ongoing payments. | ||
==Agreements about property and debt== | ==Agreements about property and debt== | ||