7,367
edits
Difference between revisions of "Enforcing Orders in Family Matters"
From Clicklaw Wikibooks
Enforcing Orders in Family Matters (view source)
Revision as of 20:10, 22 November 2022
, 20:10, 22 November 2022From staging Aug 2022 (follow up changes)
Nate Russell (talk | contribs) (From staging July 2022) |
Nate Russell (talk | contribs) (From staging Aug 2022 (follow up changes)) |
||
| Line 3: | Line 3: | ||
}} | }} | ||
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 their obligations, steps must be taken to | 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 their obligations, steps must be taken to ensure their compliance and enforce the order. | ||
This section provides a <span class="noglossary">brief</span> comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications. | This section provides a <span class="noglossary">brief</span> comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications. | ||
| Line 225: | Line 225: | ||
==Contempt of court== | ==Contempt of court== | ||
If the other party persistently refuses to live up to their 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 | If the other party persistently refuses to live up to their 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. | ||
A "contempt application" is an application for an order that someone be found in contempt of court because they have intentionally breached a court order, either by not doing something that the order requires them to do or by doing something that the order says they must not do. If the court decides that someone is in contempt of court, it can also decide to punish that person by, for example, ordering that they pay a fine, spend time in jail and do community service. | |||
. | The Supreme Court decision in the 2012 case of [https://canlii.ca/t/fwd2h Neufeld v Nesbitt] summarizes the principles governing contempt application described by the Court of Appeal in an earlier decision, [https://canlii.ca/t/fwd2h Larkin v Glase], from 2009: | ||
<blockquote>[20] The case of Larkin v. Glase, 2009 BCCA 321, sets out the following principles of contempt of court: | |||
* A court order must be obeyed until and unless it is reversed. Refusal to obey court orders strikes at the heart of the rule of law, at the core of the organization of our society. If court orders can be disregarded with impunity, no one will be safe. Our free society cannot be sustained if citizens can decide individually what laws to obey and what laws to disregard. | |||
* Contempt of court is an issue between a party and the court. It is not concerned with the merits of the dispute between parties to litigation. | |||
* A finding of contempt of court "transcends the dispute between the parties; it is one that strikes at the very heart of the administration of justice." | |||
*To knowingly breach a court order is to commit a contempt of the court. All that is necessary to establish the contempt is proof of deliberate conduct that has the effect of contravening the order; an intent to bring the Court into disrepute or to interfere with the due course of justice or with the lawful process of the Court is not an essential element of civil contempt. | |||
*The primary objective of the civil law sanction for contempt is to secure compliance with the courts' orders rather than punishment. | |||
*Deterrence and rehabilitation are factors relevant to securing compliance with court orders. | |||
*Generally incarceration is reserved for the more serious contempt of court. | |||
*It must always be borne in mind that the sanction of imprisonment is a power that ought to be used sparingly. | |||
*When imprisonment is imposed, the term imposed should be the least amount of time possible in the circumstances of the offender and the nature of the contempt. | |||
</blockquote> | |||
Because the consequences of a finding of contempt can include jail, the court will be very particular about how the application is prepared and presented. You may want to consider consulting with a lawyer about | The people found to be in contempt of court in the Neufeld and Larkin cases were sent to jail, and both of these cases were family law cases. However, the actions of these people were very serious; the court rarely sends people to jail for contempt. The court's primary goal is to get someone who has breached an order to comply with the order. Most of the time, the court will give someone the opportunity to "cure" their contempt by complying with the order before punishing them, or instead give them a warning that future breaches of the order will be dealt with more severely. | ||
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 finding of contempt under the normal rules governing interim applications. The only difference from the normal rules is that you must personally serve the person with your Notice of Application and other materials for the contempt application, and you can't simply mail or fax the application to the other party's address for service. See [[How Do I Personally Serve Someone with Legal Documents?]] in the Helpful Guides & Common Questions part of this resource, in the section Other Litigation Issues. | |||
You will need to show the court: | |||
*the terms of the order you say were breached, | |||
*exactly how the order was breached, | |||
*that the other party intended to breach the order, and | |||
*the harm resulting from the breach. | |||
Because the consequences of a finding of contempt can include jail, the court will be very particular about how the application is prepared and presented. You may want to consider consulting with a lawyer about processes and procedures, and the legal test to prove contempt, before you start working on your materials. | |||
==Resources and links== | ==Resources and links== | ||
| Line 266: | Line 284: | ||
{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[JP Boyd|JP Boyd KC]], August 25, 2022}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
