Difference between revisions of "Enforcing Orders in Family Matters"

{{JP Boyd on Family Law TOC}}

In a very narrow sense, the job of the court is to hear the claims brought before it and to make a decision about what is fair and proper in the circumstances of each claim. The person who brings the claim, the Claimant, is responsible for prosecuting his or her case. The Respondent's job is to defend the Claimant's case and sometimes press a claim of his or her own. The job of the judge is to hear the parties, and then determine a just result of the competing claims and defences.

It is true that the court system can be complex and challenging. That isn't an excuse for you not to take the steps that are required to enforce an order, and it doesn't give anyone a legitimate reason to complain that the system didn't help them out. If you are finding it too difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you.

When a person obliged to pay child support or spousal support stops making those payments, a debt begins to accumulate in favour of the recipient. This debt is known as the payor's arrears of support.

The website of the Department of Justice has a helpful overview of support enforcement mechanisms in Canada.

The Family Maintenance Enforcement Program is a government service operated by a private company under provincial legislation, the Family Maintenance Enforcement Act. FMEP will monitor payments as they are made (or not made), and calculate the interest accumulating on any arrears. FMEP is a free service.

FMEP will enforce the provisions of support orders that are registered with the program, as well as the support provisions of family law agreements that have been filed in court. FMEP can take all the steps a private debtor can to collect on any outstanding arrears and will supervise monthly payments. There is no cost to register with FMEP and you do not need to hire a lawyer to have FMEP get to work on your behalf.

If you choose to enrol with FMEP, you might want to stop any efforts you have made to collect from the payor, as your actions may conflict or interfere with steps beng taken by FMEP and frustrate their process. As well, you'll need the permission of the Director of FMEP if you want to take any independent steps to collect support on your own.

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 be liable to pay the money the recipient refused to accept!

There is a serious potential downside for payors who enrol in FMEP. Once you have enroled, you can't escape the program without the consent of the recipient. In other words, once you've enroled you may very well find yourself stuck there until your support obligation ends.

Recipients can take steps to enforce orders and family agreements without FMEP's involvement. Such actions can include:

While there is a host of other relief available, all things considered the cheapest and most efficient course of action is to register with FMEP. If you are enroled with FMEP it is recommended that you stop any other collection tactics you have embarked on. Any actions you take privately may interfere with FMEP's actions and frustrate their efforts.

Enforcing orders or agreements for custody or access is a lot more difficult than enforcing orders or agreements for arrears of support. The problem here is that you can't apply to court for an order that the defaulting party obey a previous order. Often the only remedy available is to try to enforce the order or agreement by making an application for a ruling that the defaulting party is in contempt of court or in breach of the agreement. A finding of contempt of court is punishable by a fine, a jail sentence, or both a fine and a jail sentence.

Section 121 of the Family Relations Act allows an agreement dealing with custody or access to be filed in the Provincial (Family) Court, and s. 122 allows such agreements to be filed in the Supreme Court. Once an order is filed in court it will be treated as if it were an order of the court, and can be enforced as if it were an order of the court.

Different remedies are available to enforce custody orders depending on whether the order needs to be enforced inside Canada or outside Canada.

Where custody is withheld and the child is inside Canada, there are a number of options available to obtain the return of the child:

The family law legislation of most other provinces will contain terms similar to those found in our Family Relations Act which will allow custody and access orders made in British Columbia to be filed in their courts for enforcement purposes.

Some countries have agreements with Canada and British Columbia that they will respect and enforce each other's court orders, or a provision in their family law legislation that is similar to our Family Relations Act and allows British Columbia orders to be registered in their courts for enforcement purposes. Under our act, orders that are registered with our courts are treated as if they were an order of our courts and can be enforced accordingly.

Where there is no similar provision, you may have no choice but to commence a proceeding in that country to obtain a new order on the terms of the British Columbia order. All courts pay a great deal of deference to the orders other courts have made, and the British Columbia order should be very persuasive to another court unless the British Columbia order was obtained by fraud, misrepresentation or in the face of foreign proceedings concerning the child.

The Hague Convention on the Civil Aspects of International Child Abduction can be used to deal with cases of international child abduction. The Convention is an international treaty which requires foreign governments who have signed the Convention to take certain steps to return the child to the custodial parent when there is "a grave risk of physical or psychological harm" to the child and there is an order in place governing which parent should have the child.

Countries not listed above have elected not to participate in the convention. For more information and the current standing of signatory nations, check out the website of the Hague Conference on Private International Law, which reports on the status of the various Hague Conventions.

Access can be very difficult to enforce. In general, the best way to enforce an access order is by way of an application for an order that the defaulting party be held in contempt of court, but only the Supreme Court can make orders about contempt. For Provincial Court matters, you may have to consider laying an Information under the provincial Offence Act.

It usually takes more than one clear failure to provide access before the court will make a finding that the other party is in contempt of court. Even then, because of the harsh consequences of such a finding, unless the other party's behaviour has been absolutely atrocious and unreasonable, you may have to content yourself with the court issuing a tongue-lashing to the other party. Sometimes, however, this is enough to secure compliance.

More information about contempt applications is available in the next segment.

Some provincial laws say that doing or not doing a particular thing is an offence. The Motor Vehicle Act and the Fisheries Act are chock full of offences. Under s. 128(3) of the Family Relations Act, it is an offence to interfere with a right of access:

More information about Offence Act proceedings is available in the next segment on contempt of court.

It is a popular misunderstanding that a deniual of access is enough to make an easy application for a change of custody. While this is certainly possible, such applications are not usually successful, and should only be made under the most extreme of circumstances.

The court's general view about custody and access is that it is in the best interests of children to maximize their contact with both parents. When an access order has been made, the intention is to set out a schedule under which the children will see each parent. When one parent, normally the parent who has either sole custody or the children's primary residence, withholds access, he or she is cutting the children off from the other parent. This is plainly not in the children's best interests, and the case law suggests that the only practical solution may be to give the children's primary residence to the other parent, on the ground that he or she is the parent most willing to facilitate access and ensure that the children see both of their parents, as was the case in Langille v. Langille, a 1985 decision of the BC Supreme Court.

There are no specific provisions in the Provincial Court (Family) Rules or in the Provincial Court Act which deal with contempt of court, except for contempt of court occuring in court. As a result, you can't bring on a contempt application by a Notice of Motion, which his how you would normally deal with an application for an interim order, and the proceedure is somewhat complex. What you can do is lay an Information under the provincial Offence Act.

Be warned, this process is slightly complex and definitely unusual. As a result, the court clerks may be unsure about how to handle your complaint. The rules and statuory authority supporting these complaints is set out above to allow you to argue your case with the court clerk and insist that you be allowed to proceed with your complaint and exercise your rights under the Offence Act.

Unlike the provincial court, the Supreme Court of British Columbia has something called "inherent jurisdiction," meaning that the scope of its authority is limited only by the Canadian 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 and whether or not the party's conduct does or does not constitute an "offence" under the Offence Act.