Difference between revisions of "Enforcing Orders in Family Matters"

The page will provide a brief comment on the enforcement of orders generally, and discuss the enforcement of orders for spousal and child support and the role of FMEP in this regard, and the enforcement of orders for parenting time and contact. This page will also discuss contempt of court applications.

 

==Some Preliminary Comments==

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 an appropriate result is.

Once the decision is made, the judge's job is over and it is each party's responsibility to see to it that the order is followed. The court is not responsible for supervising its own orders and monitoring people to make sure that they're obeying each term of every order it makes. If the Respondent notices that the Claimant isn't living up to a term of an order, the Respondent is responsible for enforcing the order, whether the steps taken to enforce the order include asking the court to find the Claimant in contempt, garnishing the Claimant's wages, or something else altogether; the Claimant has the same rights against the Respondent.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''Family Law Act'', the ''Family Maintenance Enforcement Act'' and the ''Court Order Enforcement Act''. Enforcing under these laws requires making an application to court. This too is your responsibility.

==Enforcing Orders for Child Support and Spousal Support==

Orders made under the federal ''Divorce Act'' can be enforced in British Columbia and in any other province. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced has an agreement with the federal government about the mutual enforcement of support orders.

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 ''Interjurisdictional Support Orders Act''.  

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.

====Recipients of Support====

#the diversion of federal payments to the payor (like tax refunds and CPP benefits);

#the garnishment of wages;

#preventing a payor from renewing his or her driver's licence;

#seizing a payor's passport and federal licences like pilots' licences;

#putting a lien on property owned by the payor; and,

#arranging for the payor's arrest.

====Payors of Support====

===Collecting Without the Help of FMEP===

#forcing the production of financial statements from the payor;

#obtaining an order compelling the disclosure of the payor's employer, assets and sources of income;

#applying for an order garnishing the payor's wages or bank accounts; and,

#summoning the payor to a special hearing for an order for the payment of the arrears and the terms on which the arrears will be paid.

Other ways of obtaining financial information and compelling payment are available under the Supreme Court's Rules of Court and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property to satisfy the arrears, and commencing proceedings against the payor for contempt of court among other things. These are the important parts of the Rules of Court:

A Writ of Execution can also be issued by a recipient under Part 5 of the ''Court Order Enforcement Act''. Section 3 of that act also allows for the attachment of wages.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''Family Law Act''. Under s. 230, the court may require a payor to:

==Enforcing Orders about the Care of Children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''Family Law Act'', the ''Criminal Code'', the Supreme Court Family Rules, and, in certain circumstances involving people located outside of Canada, the Hague Convention on the Civil Aspects of International Child Abduction.

Orders about custody and access made here under the ''Divorce Act'' can be registered and enforced anywhere in Canada.  

Orders about guardianship, parenting arrangements and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''Family Law Act''. Once an order made outside the province is recognized by our court it is enforceable as our court had made the order.

===Alternatives to Enforcement===

===''Divorce Act'' Orders===

*Section 292 of the ''Criminal Code'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.

Rule 21-7 of the Supreme Court Family Rules outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' Orders and Foreign Orders===

Orders for parenting time and contact are enforced under Part 4 Division 5. Under these sections, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

#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 reimbursed;

#require the person to report to the court; or,

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 person entitled to the care of the child 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.

The Hague Convention only applies between states which have signed the Convention. As of 1 February 2010, the countries who have agreed to enforce custody orders with Canada are:

<blockquote>Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Fasom, Chile, China (Hong Kong and Macau only), Columbia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark (except for the Faroe Islands and Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Mauritius, Mexico, Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguya, Pero, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia and Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, the UK (including the Isle of Man, the Cayman Islands, the Falkland Islands, Montserrat and Bermuda), Uruguay, the USA, Uzbekistan, Venezuela and Zimbabwe.</blockquote>