Enforcing Orders in Family Matters

Having an order or a family law agreement is one thing. Whether or not the terms of that order or agreement are followed is another. Most people are content to abide by whatever formal arrangement is in place. In those cases where someone fails to honour his or her obligations, steps must be taken to secure that person's compliance and enforce the order or agreement.

The chapter 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 custody and access. This chapter will also discuss contempt of court applications and review the enforcement of separation agreements.

I. Some Preliminary Comments

You sometimes hear people complaining about how the court didn't help them do this or that, or how the court failed to protect their children or their car or their chihuahua. A popular misunderstanding about the court system is that it polices and enforces its own decisions. It doesn't. That's up to you.

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.

The court's decision is a court order. It is binding on the parties and they risk being held in contempt of court if they act contrary to that decision.

Once that decision is made, however, the court'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 the parties 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 actions taken to enforce the order include asking the court to find the Claimant in contempt or garnishing the Claimant's wages; the Claimant has the same rights against the Respondent.

It is not the court's job to enforce its orders, it is yours. It's up to you to do something about it when your ex flouts an order.

The Supreme Court of British Columbia 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, jail time, or both a fine and some time in jail. Again, it is your responsibility to make this application, the court won't do it for you.

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.

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II. Enforcing Orders and Agreements for Support

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.

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 jurisdiction 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 Relations Act can be enforced in British Columbia, and in other provinces, when they are registered or filed in court under the province's legislation on family law, usually the Interjurisdictional Support Orders Act or an act like it. They can also be enforceable outside of Canada, depending on whether the jurisdiction in which the order is to be enforced has an agreement with the federal government about the mutual enforcement of support orders.

Separation agreements and other kinds of family agreements that provide for the payment of spousal support and child support can be enforced as if they are orders of the court when they are filed in the Provincial (Family) Court under s. 121 of the Family Relations Act, or in the Supreme Court under s. 122 of the act.

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

A. The Family Maintenance Enforcement Program 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.

1. Recipients of Support 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.

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 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. For the payee, FMEP is a free service. While FMEP may not be as quick as a lawyer to collect on arrears or compel regular payment, I recommend its services.

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.

2. Payors of Support 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!

Payors who find themselves in such a situation can enrol in FMEP, just the way that recipients do. FMEP will accept the payor's payments and attempt to forward them to the recipient. If the recipient still refuses to accept the payments, FMEP will keep the payments on behalf of the recipient as well as a record of the payments made. This will protect the payor's interests at the hearing of the larger problem, if there ever is one, and will save the payor from falling into arrears.

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.

B. Collecting Without the Help of FMEP Recipients can take steps to enforce orders and family agreements without FMEP's involvement. Such actions can include:

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 means 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.

Rule 15-4 of the Supreme Court Family Rules: Writ of Execution Rule 15-6: subpoenas to debtors Rule 15-8: Sales by the Court Rule 15-7: Examination in Aid of Exectuion Rule 21-7: Contempt of Court Part 5 of the Court Order Enforcement Act: Writ of Exection Section 3 of the Court Order Enforcement Act: attachment of wages 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.

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III. Enforcing Orders for Custody or Access

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.

Orders for custody of and access to children can be enforced under the Divorce Act, the Family Relations 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 made under the Divorce Act can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 3 of the Family Relations Act, and an order made outside the province is considered to considered to be enforceable as an order of the courts of this province once it has been filed in our courts.

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.

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

1. Inside 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:

A person who has custody of a child because of a court order can make an seek an order, on an ex parte application, that the police or RCMP apprehend the child and return him or her to the party's care under s. 36 of the Family Relations Act. Section 292 of the Criminal Code makes the interference with a parent's right to custody under a court order a criminal offence, so a complaint to the police is another option. 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 jail, by a fine, or both, but this still may not result in 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.

2. Outside of Canada, Court Enforcement 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.

3. Outside of Canada, 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 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.

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:

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. As of 1 February 2010, the signatory countries who have not agreed to enforce custody orders with Canada, but will enforce custody orders with other countries (shame on them), are:

Guatemala, Nicaragua and Thailand. 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.

B. Access 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.

1. Contempt 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.

If your access order says only that you will have "reasonable and generous access," or otherwise fails to specify the terms of your access to your child, you may be able to get the sort of access you want by asking the court to specify the terms of your access. It is too easy for a custodial parent to avoid allowing access 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 and evenings during the work week, or whatever else you'd like. If the vague schedule isn't working, the only answer is to ask the court to fix a schedule. Often parents who are experiencing problems with vague orders or agreements will find that a more specific schedule will solve their problems.

If that doesn't help, however, you should consider making an application for an order that the other parent be found in contempt of court for breaching the access order. If even that doesn't work, you may have no choice but to ask the court to make an order that the custodial situation be reversed.

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

2. The Offence Act 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:

A person who, without lawful excuse, interferes with the custody of, or access to, a child in respect of whom an order for custody or access was made or is enforceable under this Act commits an offence. Offences may be prosecuted under the Offence Act, which can punish by jail, a fine, or both jail and a fine. Proceedings under the act are commenced by filing a sworn statment, called an Information, in Provincial Court. Under ss. 25 and 26, any person may lay an Information before a judge, and the judge must issue a summons to the purported offender if "a case for doing so is made out."

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

C. Access Problems and Changing Custody 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.

However, where a parent with has chronically withheld access without good reason, it may be the case that the only pratical way to resolve access problems is to make a change in custody in favour of the other parent, in other words, to reverse the existing situation so that the other parent is the parent who has access to the children.

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.

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IV. Contempt of Court

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 an offence punishable by a fine, jail time, or both a fine and jail time. Both the Supreme Court and the Provincial (Family) Court have the power to punish someone for breaching their orders, however their proceedures for these applications are very different and the Provincial Court's power is very limited.

A. Provincial Court Contempt Process 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.

This is what you need to know about laying an Information.

Section 2(4) of the Provincial Court Act says that the Provincial Court (which includes Family Court, Youth Court and Small Claims Court) may "commit for contempt of court." Section 128(3) of the Family Relations Act makes it an offence to interfere with an order for custody or access made under the act. Section 2 of the Offence Act says that "offences created under an enactment" — such as the offence created under s. 128(3) of the Family Relations Act — is punishable on summary conviction, in other words, after someone is found guilty of the offence. Section 4 of the Offence Act says that where the punishment for the offence isn't specified (which is the case with s. 128 of the Family Relations Act), the punishment is a fine of up to $2,000, six months in jail, or both. Section 8 of the Offence Act says that "every justice" has the authority to hear applications for a finding that someone be in contempt, and s. 1 of the act defines "justice" as including judges of the provincial court. Section 11 of the Offence Act requires that applications under the act be made by filing an Information in Form 2, and s. 25(1) of the act says that "any person" can file the Information. An Information must be sworn on oath, just like an Affidavit, and must be in the form specified under the act. Form 2 can be found at the end of the Offence Act. Under s. 26 of the Offence Act, the Information is heard by a judge without notice to the other person, and the judge may then issue a summons requiring the other person to attend a trial to determine whether he or she is in contempt of court. Under s. 28(1) of the Offence Act, a peace officer must serve the summons on the under person. To summarize, making an application for a finding that someone be found in contempt of a Provincial (Family) Court order is a bit like starting a private prosection. You must swear an Information before a lawyer or notary public, and bring the Information to a judge. The other person need not be notified that you are bringing the Information, and, in fact, will only find out about it after he or she is served with the summons. The judge to whom you present the Information will determine whether or not there's an arguable case that the other person may have committed an offence under the Offence Act, and, if so, will issue the summons.

A peace officer will serve the summons on the other person. The two of you will have to come to court on the date set out in the summons, and set a date for your application to be heard. The court clerk will provide you with a Notice of Hearing.

When the date on the Notice of Hearing comes around, you'll have to present evidence to the court that the other person is, in fact, guilty of an offence by "interfering with the custody of, or access to, a child in respect of whom an order for custody or access was made," under s. 128 of the Family Relations Act. If the judge hearing the case agrees, the other person will be found guilty of the offence, and you will have to argue about how the punishment (the fine, jail, or both) should be assessed.

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.

B. Supreme Court Contempt Process 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.

The rule governing contempt applications is Rule 21-7 of the 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 cannot simply mail or fax it to his or her address for service.

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 process and procedure, and the legal test to prove contempt, before you start working on your materials.