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Difference between revisions of "Enforcing Orders in Family Matters"
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Enforcing Orders in Family Matters (view source)
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FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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. | FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor 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. | ||
FMEP has extremely long arms and the steps it can take to compel payment are substantial, including: | FMEP has extremely long arms, and the steps it can take to compel payment are substantial, including: | ||
*the diversion of federal payments to the payor (like tax refunds and CPP benefits), | *the diversion of federal payments to the payor (like tax refunds and CPP benefits), | ||
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====Collecting in the Supreme Court==== | ====Collecting in the Supreme Court==== | ||
Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] 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 Supreme Court Family Rules: | Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] 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 Supreme Court Family Rules: | |||
*Rule 15-4: Writ of Execution | *Rule 15-4: Writ of Execution | ||
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Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court. | Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court. | ||
Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce. | Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce. | ||
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: | 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: | ||
#post security | #post security, | ||
#pay the recipient's expenses incurred as a result of the payor's actions | #pay the recipient's expenses incurred as a result of the payor's actions, or | ||
#pay up to $5,000 to the recipient | #pay up to $5,000 to the recipient as a fine. | ||
Under s. 231 of the act, the court may jail a payor in breach of an order | Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. | ||
==Enforcing orders about the care of children== | ==Enforcing orders about the care of children== | ||
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Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada. | 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. | 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 if our court had made the order. | ||
===Alternatives to enforcement=== | ===Alternatives to enforcement=== | ||
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Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead! | Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead! | ||
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 access — including weekends, holidays | 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 access — including weekends, holidays, evenings during the work week, or whatever else you'd like. | ||
Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday. If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday? | Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday. If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday? | ||
If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's | If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application. | ||
===''Divorce Act'' orders=== | ===''Divorce Act'' orders=== | ||
Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws, | Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children. | ||
These are your options: | |||
*Section 292 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police. | *Section 292 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police. | ||
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===The Hague Convention=== | ===The Hague Convention=== | ||
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 | 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 that requires foreign governments who have signed the Convention to take certain steps to return the child to the person who is 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 | The ''Hague Convention'' only applies between states that have signed the Convention. As of April 2013, the countries that have agreed to enforce custody orders with Canada are: | ||
<blockquote>Albania, Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, People's Republic of, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Korea, Republic of, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Monaco, Montenegro, Morocco, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Russian Federation, Serbia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Venezuela.</blockquote> | <blockquote>Albania, Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, People's Republic of, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Korea, Republic of, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Monaco, Montenegro, Morocco, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Russian Federation, Serbia, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Venezuela.</blockquote> | ||
