How to Enforce a Separation Agreement in BC
After a marriage breaks down, it can be very challenging for spouses to reach an agreement on important issues such as parenting time, child support, spousal support and division of family property/debt. Unfortunately, after all the hard work at reaching an agreement and incorporating the terms into a Separation Agreement, one spouse may fail to follow the agreement that was reached.
How to Enforce a Separation Agreement in BC
After a marriage breaks down, it can be very challenging for spouses to reach an agreement on important issues such as parenting time, child support, spousal support and division of family property/debt. Unfortunately, after all the hard work at reaching an agreement and incorporating the terms into a Separation Agreement, one spouse may fail to follow the agreement that was reached. Maybe spousal support is not being paid as agreed or the parenting schedule is not being followed. What can be done if one spouse fails to follow the separation agreement? In this post, I will discuss some important considerations and how to enforce a BC separation agreement.
What can be done to enforce a separation agreement in BC?
If your separation agreement is not being followed, there are ways to enforce it, but there are extra steps that must be taken, and it can be complicated to access the enforcement mechanisms available through the courts.
The first consideration is to determine if your separation agreement has been filed. If it has been filed, then has it been filed in B.C.? If it has been filed in B.C., what court has it been filed in - Provincial Court or Supreme Court? Terms about parenting and support can be enforced like a court order. If you would like assistance with enforcing a filed agreement, or if you want to register an existing separation agreement with the BC courts, contact an experienced family lawyer.
If you are in the process of negotiating a separation agreement, you should consider the option of filing the agreement with the court for approval as a consent order, which makes the terms binding and enforceable from the moment the agreement is filed.
Other considerations if your separation agreement is not being followed
How a separation agreement is enforced and the steps that are recommended in your situation will depend on several factors. Beyond the issue of whether or not your agreement has been registered as a court order, consider the following:
- What issues are at stake? The steps you take will depend on the nature of the issue and the severity or frequency of the breach. For example:
- If non-payment of child support or spousal support is the issue, agreements about support can be enforced by BC’s Family Maintenance Enforcement Program (“FMEP”).
- Is the issue more minor in nature such as a disagreement about a parent being late for pick up or drop off the children? How often is it happening? When it comes to parenting, the best interests of the children prevail and parents are expected to try to work together and be flexible. Consider asking a lawyer, mediator, or parenting coordinator to help resolve minor parenting issues.
- If the breach of the agreement is urgent, serious, or causing significant difficulties for you or your children, a court order may be the preferred choice of forum, and it may be advantageous to commence a court action.
- Is the agreement still workable? Circumstances change over time, especially when it comes to parenting arrangements and the best interests of the children. As children get older, their needs and schedules may change, and the separation agreement may also need to be amended to better reflect the current situation.
- Are you able to communicate directly with your spouse? It may be possible to negotiate a resolution with or without the assistance of a lawyer or mediator without the necessity of going to court. Going to court is expensive and resolution can take many months. You have less control over the outcome and may not be happy with the result if the matter is left for a Judge to make a determination.
- Does the separation agreement address how disputes are to be resolved? Your separation agreement may set out remedies available in the event of a breach. BC separation agreements often set out a procedure for dispute resolution. A provision in the agreement may set out how to deal with a dispute if one arises. Mediation provisions are common which would require the parties to first try using a mediator to resolve the dispute before either party is permitted to go to court.
- Why isn’t the Order being followed? If your spouse is contesting the agreement or questioning its validity, you should get advice from a family lawyer. BC courts are generally reluctant to interfere with privately negotiated contracts, but the courts will in limited circumstances set aside a separation agreement if for example, one spouse did not understand the agreement, the agreement is shown to be significantly unfair or the agreement is the product of coercion or undue influence.
It can be incredibly frustrating to deal with breaches of an existing agreement and challenging to enforce a separation agreement that you worked so hard to achieve. Remember that you should follow the agreement even if your spouse does not, and you should consider reaching out for legal advice and guidance on how to best navigate the current situation.
Do you need advice or help enforcing a separation agreement?
If you need advice on how to enforce a BC separation agreement, contact Valerie at her law firm. She has over 25 years experience in preparing, challenging, defending, and enforcing separation agreements. Protect yourself and put Ms. Little’s extensive family law experience to work for you by calling her at 604-526-3333 or completing the online Contact Us Form. Her staff will contact you to arrange your personal and confidential legal consultation.