Enforcing Provincial Court Family Law Orders

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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.

JP Boyd on Family Law
JP Boyd on Family Law
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This section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the BC Family Maintenance Agency, and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

For additional information, visit Legal Aid BC's Family Law website's step-by-step guide: Enforce a parenting agreement or order in Provincial Court.

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 monitors 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 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 Provincial Court case, the applicant, is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The respondent is responsible for defending themselves and explaining why the orders the applicant 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 and appropriate result is.

The judge's decision is a court order. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires. Remember that the order takes effect the moment the judge says it (not its stamped date which can often be considerably later).

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 applicant 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 applicant in contempt, garnishing the applicant's wages, or something else altogether. The applicant has the same rights against a respondent who is not following an order.

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

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

The Provincial Court also has the power to punish for contempt of court when a party willfully disobeys its orders in a way that occurs in the face of the court. A Provincial Court judge's power to cite parties for contempt of court is more restricted than a BC Supreme Court judge's power, however. Enforcement of an order that says what litigants should do when they are outside of the courts by citing contempt of court is typically beyond the jurisdiction of a Provincial Court judge. Failing to appear in court when ordered, or failing to bring documents into court when ordered, are breaches that a judge can personally see (and are therefore in the "face of the court"), and can involve the court's contempt jurisdiction. Again, however, it is generally 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 an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic, or apply to a group like Access Pro Bono to see if they can introduce you to a lawyer who may be able to handle your case for free.

Enforcing orders for child support and spousal support

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

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 BC Family Maintenance Agency

The BC Family Maintenance Agency ("BCFMA") is a government service that helps recipients collect support using the Family Maintenance Enforcement Act. BCFMA will monitor payments as they are made (or not made), and calculate the interest accumulating on any arrears. BCFMA is a free service and you can register with them, whether you are the payor or the recipient, as long as you have a court order about support (or a written agreement about support that's been filed in court).

Recipients of support

BCFMA will enforce the provisions of support orders that are registered with it. BCFMA 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 BCFMA and you do not need to hire a lawyer to have BCFMA get to work on your behalf.

BCFMA 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 their driver's licence,
  • seizing a payor's passport and federal licences like pilots' licences,
  • putting a lien on property owned by the payor,
  • freezing certain kinds of bank accounts, and
  • arranging for the payor's arrest.

For the payee, BCFMA is a free service. While BCFMA may not be as quick as a lawyer to collect on arrears or compel regular payment, its services are highly recommended as their lawyers are well-versed with the enforcement options available because, unlike other lawyers, they deal with them daily.

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

Payors of support

Payors can enroll in BCFMA too. 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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if it ever goes to a hearing, plus the payor may have to pay the money the recipient originally refused to accept! What can also happen is that parties disagree about the amounts actually paid (e.g. if the amounts were paid in cash, or if support payments were co-mingled with other kinds of payments), and as the payor, the onus is on you to show how much you paid.

When a payor enrolls in BCFMA, BCFMA will accept the payor's payments and attempt to forward them to the recipient. If the recipient still refuses to accept the payments, BCFMA 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 if there is ever a hearing. This can save the payor from falling into arrears.

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

Collecting without the help of BCFMA

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

  • forcing the payor to produce financial statements, income tax returns, and other financial information,
  • getting an order to compel the disclosure of the payor's employer, assets, and sources of income,
  • getting an order to garnish the payor's wages or bank accounts,
  • 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, and
  • forcing the sale of the payor's property.

Collecting in the Provincial Court

Other ways of compelling payment are available under the Family Maintenance Enforcement Act, the provincial Court Order Enforcement Act, and the Family Law Act in the Provincial Court.

Under the Family Maintenance Enforcement Act, a recipient can take steps like requiring the payor to file a statement of finances, commencing enforcement proceedings against a corporation 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 BCFMA, only BCFMA may enforce the order. You must either withdraw from BCFMA or get permission from BCFMA to make your own efforts to enforce.

Under the Court Order Enforcement Act, a recipient can seek a Writ of Execution in relation to property owned by the payor under Part 5 of the Act (although only land can be addressed in the Supreme Court). Section 3 of Court Order Enforcement Act also allows for the attachment of wages, which means that the payor's wages can be garnished to pay the recipient for amounts owing.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions found in Division 6 of the Family Law Act. Under section 230, the court may require a payor to:

  • post security,
  • pay the recipient's expenses incurred as a result of the payor's actions, or
  • pay up to $5,000 to the recipient as a fine.

Under section 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. Going to jail will not cancel any arrears that are still owing.

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 Provincial 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 guardianship, parenting arrangements, and contact time made here in BC 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

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 parenting time or contact — including weekends, holidays, evenings during the workweek, 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?

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.

Family Law Act orders and foreign orders

Under the Family Law Act, the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under section 75 of the act, may be enforced in the same way as orders made in British Columbia.

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

(a) require the parties to participate in family dispute resolution;

(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;

(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;

(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;

(e) require that the transfer of the child from one party to another be supervised by another person named in the order;

(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to

(i) give security in any form the court directs, or

(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;

(g) require the guardian to pay

(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or

(ii) a fine not exceeding $5 000.

However, the denial must have happened within the last year, and the denial must be wrongful. Under section 62, denial is not wrongful in the following circumstances:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;

(e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and

(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time (also called compensatory time).

There are also remedies if the opposite situation arises: where a party fails to exercise parenting time or contact time. In those circumstances, the other party can apply for an order under section 63 of the Family Law Act for the following types of orders:

  • 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
  • require the person to post security.

Under the Family Law Act's extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

  1. jailing the person for up to 30 days,
  2. requiring the police to take the child to the person who is entitled to parenting time and contact, or
  3. when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

The Hague Convention

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is an international treaty between various world governments. The Convention applies to cases of international child abduction. Governments who have agreed to the Convention are called contracting states. The Convention provides a framework for contracting states to ensure abducted children are returned to their country of habitual residence. The Convention only applies to children under the age of 16.

The Convention's primary goal is to secure the prompt return of children wrongfully removed to or retained in a contracting state. A wrongful removal or retention is when someone's (e.g. a parent's or a guardian's) rights of custody have been breached according to the law of the country where the child usually resides. Usually this happens when a parent unilaterally removes a child without the consent of the other parent or a court's permission. Rights of custody can arise under a court order, written agreement, or by operation of law. The Convention is not concerned with the merits of custody and is based on the premise that it is in the best interests of children generally to return promptly to their habitual residence, as custody issues are best determined there. The child’s prompt return is also intended to deter parents from crossing international borders in search of a more sympathetic court or for any other reason.

The Convention also enables access to children across international borders.

As of January 27, 2025, the Hague Convention applies between Canada and the following contracting states:

Albania, Andorra, Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark (except the Faroe Islands & Greenland), Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong (Special Administrative Region of China), Hungary, Iceland, Ireland, Israel, Italy, Jamaica (effective April 1, 2025), Japan, Latvia, Lithuania, Luxembourg, Macau (Special Administrative Region of China), Former Yugoslav Republic of Macedonia, Malta, Mauritius, Mexico, Republic of Moldova, Monaco, Morocco, the Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Republic of Korea, Romania, Saint Kitts and Nevis, San Marino, Serbia & Montenegro, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, United Kingdom, UK Anguilla, UK Bermuda, UK Cayman Islands, UK Falkland Islands, UK Isle of Man, UK Jersey, UK Montserrat, United States of America, Uruguay, Uzbekistan, Venezuela, and Zimbabwe.

As of January 27, 2025, the following contracting states do not have a reciprocating arrangement with Canada:

Armenia, Bolivia, Gabon, Guatemala, Guinea, Iraq, Kazakhstan, Lesotho, Nicaragua, Pakistan, Republic of the Philippines, Russian Federation, Seychelles, Thailand, Tunisia, and Republic of Zambia.

Countries not listed above have elected not to be bound by the Convention.

To see if these lists have since been updated, check out: the online list.

For more general information and the current status table of participating nations, check out the website of the Hague Conference on Private International Law.

Enforcing other types of orders

The Family Law Act can also be used to enforce other types of orders, such as:

  • orders respecting disclosure of information (s. 213),
  • orders respecting the conduct of a party (s. 228), and
  • any other general order that the court can make (s. 230).

Under those sections of the Family Law Act, the court may require a payor to:

  • post security,
  • pay the recipient's expenses incurred as a result of the payor's breach, or
  • pay up to $5,000 to the recipient as a fine.

Under section 231 of the Family Law Act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel or in any way negate the obligation under the order.

Contempt of court

Please note that the powers of a Provincial Court judge to cite people for contempt are more limited than in BC Supreme Court. Most of a Provincial Court judge's enforcement powers come directly from legislation. In terms of contempt powers specifically, a Provincial Court judge does have authority under section 52 of the Offence Act to fine or even jail someone for refusing to show up (or refusing to remain) in court when legally required. Otherwise, a Provincial Court judge's powers in matters of contempt are derived from section 2.1(a) of the Provincial Court Act. By contrast, BC Supreme Court judges have much broader powers based their inherent jurisdiction. Their Provincial Court counterparts have a narrow reserve of inherent procedural jurisdiction, which is complementary to the powers under legislation that ensure court orders are obeyed. As noted above, the Family Law Act has some pretty good tools already.

The contempt jurisdiction of a Provincial Court judge hearing a family matter is limited to contempt in the "face of the court". If the judge clearly directs a party to appear in court and surrender their passport in court at a certain time, and if that party willfully disobeys the judge, then that is a more clear basis for a committal of contempt for a Provincial Court judge to act on (since the circumstances are in the personal knowledge of &mdash i.e. in the face of &mdash the court). On the other hand, a litigant who disobeys a Provincial Court order about parenting arrangements or support payments — while they might surely be breaching the order in the face of the other party — is not doing that in front of the court itself. Again, the Family Law Act has other tools for dealing with that problem.

Most breaches will not attract a contempt sanction from a Provincial Court judge. The order must be enforced through legislative provisions or rules of court rather than a general "contempt of court" power. This fact should not discourage you, since there are powerful tools at the Provincial Court judge's disposal under sections 213 (enforcing disclosure orders), 228 (enforcing conduct orders), 230 (a party may request a judge to impose fines), and 231 (extraordinary power to order imprisonment up to 30 days) of the Family Law Act.

A good description of the Provincial Court's jurisdiction in matters of contempt and in family law is G.A.C. v. I.C., 2006 BCPC 380:

  • Contempt in the face of the court occurs when the court has personal knowledge of the disobedience, such as when a person fails to appear or comply with orders in court.
  • The court's contempt jurisdiction is not intended to enforce orders outside the courtroom, which must be addressed through legislative enforcement mechanisms.
  • The standard of proof for contempt is beyond a reasonable doubt. The court must be satisfied that the person:
    • Had knowledge of the order,
    • Willfully disobeyed the order, and
    • Acted deliberately, even if without intent to bring the court into disrepute.

Resources and links

Legislation

Resources

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 3 January 2025.


  JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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