Enforcing a Separation Agreement When Your Ex Does Not Follow It

You negotiated, signed and moved on. Now the support payments have stopped, the weekend handovers keep getting cancelled, or the house that was supposed to be listed for sale is still sitting there.

BC's Family Law Act gives you real tools, but they are not the same for every clause. This article explains how to file an agreement so it can be enforced, which agency can collect support for you, what the court can do about missed parenting time, and how property terms are enforced.

Start with the agreement itself

Before thinking about enforcement, check that the term being broken is one the law will hold your ex to. Under the Family Law Act, agreements about parenting arrangements (section 44) and child support (section 148) are binding only if made after separation, or when you were about to separate and meant them to take effect on separation. Property and spousal support terms signed with each spouse's signature witnessed get stronger protection against later attempts to set them aside (sections 93 and 164).

Our article on what separation agreements settle and when they can be set aside covers those questions. Here we assume the agreement is sound and the problem is that it is being ignored.

Filing the agreement in court

A signed agreement is a contract, but for several key terms the Family Law Act offers a more direct route than suing on a contract. A written agreement that is filed in the court is enforceable under the Act as if it were a court order if it deals with:

• Parenting arrangements such as parental responsibilities and parenting time (section 44(3));
• Contact with a child by someone who is not a guardian (section 58(3));
• Child support (section 148(2)); and
• Spousal support (section 163(3)).

Support terms filed this way are also enforceable under the Family Maintenance Enforcement Act. Filing does not lock the terms in: either of you can still ask the court to set aside or replace parenting or child support terms on the tests in the Act. But it turns a private promise into something the court and the enforcement agency can act on. Many people file the agreement as soon as it is signed so it is ready if trouble starts.

Unpaid support: the BC Family Maintenance Agency

Once a support agreement is filed, the Family Maintenance Enforcement Act treats it as a maintenance order of the Provincial Court (section 1(2)). Either the person receiving support or the person paying it can file it with the director (section 3), and the Province's guidance is that an agreement must first be filed with the court registry before it can be enrolled with the BC Family Maintenance Agency. The director then enforces it where necessary and practicable, including arrears that built up before enrolment (section 4).

Two further points are worth knowing. A recipient who enrolled the order can generally withdraw it later by written notice, subject to conditions (section 6). And under the Limitation Act, there is no limitation period for a claim for arrears of child or spousal support payable under an agreement filed under section 148(2) or 163(3) of the Family Law Act (section 3(1)(l)). See our guide to child support arrears in BC.

Missed parenting time

If you are entitled to parenting time under a filed agreement or an order and it is wrongfully withheld, section 61 lets you apply to court within 12 months after the denial. The court can order family dispute resolution or counselling, compensatory parenting time, reimbursement of your expenses, supervised exchanges, security or reporting, and payments of up to $5,000.

Not every refusal is wrongful. Section 62 lists situations where withholding is not wrongful, such as a reasonable belief that the child might suffer family violence, or that the other parent was impaired at the handover. Keep a dated record of every missed visit and every message. Our article on parenting time being withheld goes through the remedies in more detail.

Property terms: selling the house, transfers and payments

Property clauses work differently. The Family Law Act does not provide the same filing route for property terms, so if your ex will not sign the transfer, list the home or make an equalization payment, the usual step is an application to the BC Supreme Court. Under section 97, the court can make orders needed to give effect to a division of property, including declaring who owns property, requiring a transfer, ordering a sale with the proceeds split as set out, requiring compensation where property has been disposed of, and requiring security such as a charge on property.

If the home is the sticking point, our article on an ex who won't sell the house explains the options.

When ordinary steps fail

For orders made under the Act, including filed agreements that are enforceable as if they were orders, section 230 lets the court require security, order payment of the other party's reasonable expenses, order a payment of up to $5,000 to the affected party, or impose a fine of up to $5,000, where no other provision of the Act applies. Section 231 allows imprisonment for up to 30 days, but only where the court is satisfied that no other order will be enough, and only after the person has had a chance to explain.

Courts treat these as last resorts. In practice, a clear written demand, a look at any dispute resolution clause in your agreement, and mediation often move things faster than a contested hearing.

Is your ex ignoring your separation agreement?

Our family lawyers can review your agreement, file it with the court, help you enrol support terms for enforcement, and bring the right application when parenting time is withheld or property terms are not carried out.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.