You hope that once you have a separation agreement or a court order, that everything will be smooth sailing. But sometimes agreements and orders are not followed. When this happens, you may need to take action to enforce an agreement or order.

There are certain steps you can take to enforce your agreement or court order, depending on the issue.  The first place to start would be communicating with your former spouse. There may be a reason the order or agreement isn’t working anymore. Communicating effectively with your former spouse may make it a simple fix. Working it out instead of rushing to court will save you a lot of time and money.  Refer back to Chapter 3 to learn more about negotiating with your former spouse.

Enforcing an agreement/order in Provincial Court

Generally speaking you can apply to the Provincial Court to have your order or registered agreement enforced by following the steps bellow.

1. Prepare documents. Fill out a Notice of Motion (Form 16) and an Affidavit (Form 17).  In the Notice of Motion, check off the box that says “an order to enforce.” Make sure to make 3 copies of all documents.
2. In the affidavit, you need to provide evidence that demonstrates that the order is not being followed. Describe the events that led up to the application for enforcement and the consequences that resulted from the disregard of the agreement/order.
3. File the documents at the court registry. Bring a copy of your original agreement/order
4. Be sure to serve the documents at least 7 days in advance of the hearing
5. Attend the hearing on enforcing an order. Use the Case Building Worksheet to prepare and present your case. 

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Enforcing an agreement/order in Supreme Court

1. Prepare a Notice of Application (Form F31) and an Affidavit (Form F30).  The affidavit should provide evidence that demonstrates that the order is not being followed. Describe the events that led up to the application for enforcement and the consequences that resulted from the disregard of the agreement/order. Make 3 copies of all your documents.
2. File and serve the documents. Make sure to serve the documents 8 full business days before the date of the hearing to the Respondent through ordinary service.
3. If the Respondent agrees with the Notice of Application, you can:
4. If Response is filed. Prepare a responding affidavit if you have something to say about the new facts in the respondent’s affidavit.  
5. Prepare 2 Application Records (a binder that contains your evidence)
6. Serve the Application Record index on the Respondent by ordinary service, and file the Application record at the court registry no later than 4:00pm, one full business day before the date of the hearing.
7. Attend hearing. Use the Case Building Worksheet to prepare and present your case.

Enforcing Support Orders

If you have an order or agreement regarding support (either child or spousal) and the payor fails to make payments, a debt begins to incur. The amount of debt that the payor owes is called “arrears”.

There are 2 ways to collect arrears:

• With the help of the Family Maintenance Enforcement Program (FMEP) or
• Get an order from the courts for enforcement

Collection with FMEP

The FMEP is a free service that monitors and enforces support payments. Anyone who has a support order or has filed a separation agreement may enroll in the program.

Once you are enrolled, which usually takes about 4 months, FMEP begins to enforce your rights to support. The FMEP may take legal actions to enforce the payments such as garnishment (seizing a portion of the payor’s wages) property liens or jailing the payor.

Collection without FMEP

Without FMEP, you can always negotiate or talk it out with your former spouse and come to a payment arrangement that works for both of you. Failing this, you may wish to proceed with taking the payor to court and getting an order to garnish wages or bank accounts, force production of financial information, or to summons the payor to attend a hearing about the arrears.  There are court remedies to deal with spouses that do not comply with an order.

It can however be time consuming and difficult to obtain an order collecting arrears. It is recommended you use FMEP to enforce support.

Enforcing Care of the Children

It often happens that the order or agreement regarding the care of the children isn’t followed to the letter. A parent may be late for a drop off, or miss a designated weekend visit because of a conflict such as a work trip. Sometimes, it will be worth going to court, but usually, it is best for the two of you to work it out without the courts involvement.

Whenever possible, it is best for you to resolve parenting issues together. As necessary, get the help of professionals such as mediators or FJCs. Seeing Chapter 4 – Getting Help for to get professional assistance.

It is important to remember to focus on the best interest of the children. Working together and being flexible will be a lot easier on your children as well as yourself. 

If you need to go to court

In some situations you might need to go to court, e.g. where it is a repetitive problem that you cannot work out. If the terms of your order or agreement regarding parenting arrangements are not being followed, you may bring an application before the Provincial Court or Supreme Court for a solution. In your separation agreement you may have included a remedy, method to deal with one of you not fulfilling your obligations set out in the agreement. The court will try to stick to the remedy you agreed on in your agreement. If you have no remedy set out, the court will use the general remedies under the Family Law Act.

The general remedies allow courts to: 

• require a party to give security
• require a party to pay reimbursing expenses or a fine
• order that the parties attend family dispute resolution,
• order that one or more parties or a child attend counselling,
• require that the transfer of the child be supervised,
• order that any expenses incurred as a result of the failure be paid, or
• require the person to report to the court,

In extreme cases, courts may enforce orders for parenting time and contact by:

• jailing the person for up to 30 days;
• requiring the police to take the child to the person who is entitled to parenting time and contact; or,
• when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.