Difference between revisions of "Enforcing Orders in Family Matters"

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour his or her obligations, steps must be taken to secure compliance and enforce the order.

In a very narrow sense, the job of the court is to hear the court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing his or her case and ultimately convincing the judge why the orders he or she is asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending him- or herself and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The Supreme Court has the power to punish for ''contempt of court'', disobedience of its orders or directions, and this is one way you can seek to have your order enforced. Once you bring an application to court for a finding that the person breaching the order be "found in contempt," the court can punish that person by a fine, by jail time, by both a fine and some time in jail, or by something more creative. Again, it is your responsibility to make this application; the court won't do it for you.

Orders made under the provincial ''[[Family Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a "reciprocating jurisdiction" under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.  

*preventing a payor from renewing his or her driver's licence,

People usually assume that when FMEP is involved it is the payor who is delinquent rather than the recipient. It can sometimes happen, usually as part of a larger dispute, that a recipient will refuse to accept the payor's support payments. If a payor simply throws up his or her hands and says "fine, I'll keep the money," the payor can find him- or herself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept!

If your order says only that you will have "reasonable and generous parenting time," or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact that is "reasonable and generous" simply by saying "well, it isn't convenient for me," or "the children are busy this weekend." Your first recourse should be to ask the court for a precise schedule for your parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.  

Under the act's extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' applies with respect to cases of international child abduction. The Convention is an international treaty that provides a framework for governments which have agreed to be bound by the Convention (“contracting states”) to ensure the return of abducted children to their country of “habitual residence”.  The Convention only applies to children under the age of 16.   

The primary goal of the Convention is to secure the prompt return of children wrongfully removed to or retained in a contracting state.  A wrongful removal or retention occurs when a parent, institution or other body’s “rights of custody” have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence.  Rights of custody can arise under a court order, written agreement or by operation of law.  The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there.  The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.  

Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe         Islands & Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Latvia,       Lithuania, Luxembourg, Macau (Special Administrative Region of China), Malta, Mauritius, Mexico, Republic of Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland,         Portugal, Romania, Saint Kitts and Nevis, Serbia & Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, United Kingdom, UK Anguilla,         UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.

Albania, Andorra, Armenia, Dominican Republic, Gabon, Guatemala, Guinea, Kazakhstan, Lesotho, Morocco, Nicaragua, Republic of Korea, Republic of the Philippines, Russian Federation, San Marino,     Seychelles, Singapore, Thailand and Ukraine.

If the other party persistently refuses to live up to his or her obligations under a court order, you may have no choice but to make an application to court for a finding that the other party is in contempt of court. Contempt of court is punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our Constitution and the rules of the common law. As a result, the court can punish a party for contempt of court without being confined to the provisions of any particular statute.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. You can bring an application for a contempt finding under the normal rules governing interim applications. The only difference is that you must personally serve the other person with your Notice of Application and affidavit for the contempt application; you can't simply mail or fax it to his or her address for service. You will need to show the court: