Enforcing Orders, Awards and Agreements Involving Children

Final orders, awards and agreements about arrangements for parenting and contact after separation are meant to give parents and other adults involved in children's lives a set of rules that describe how decisions affecting children are to be made, how much time each of the adults will have with the children, and when each adult's time with the children begins and ends. The purposes of rules about these things include: creating certainty about where the kids will be and when they'll be there; allowing parents to make plans for holidays, trips and special occasions well in advance; and, most importantly, reducing conflict between the adults involved in the children's lives. When one or more of the parties to an order, an award or an agreement doesn't follow those rules, these benefits are lost and it may be necessary to take steps to enforce the order, award or agreement so that everyone does the things the rules require them to do.

The process for enforcing orders generally is discussed in the section Enforcing Orders in the Resolving Problems in Court chapter; the process for enforcing agreements generally is discussed in the section Enforcing Agreements in the Family Law Agreements chapter. Under section 19.20 of the Family Law Act, arbitrator's awards are enforced as if they are court orders.

This section talks about the special processes and remedies available for enforcing orders, awards and agreements about arrangements for parenting and contact under the Family Law Act, as well as the enforcement of orders under the Divorce Act.

Introduction

The Canadian justice system is based on the idea that people will follow court orders and arbitration awards, and the agreements they have made, because they know it's the right thing to do. When people don't live up to their obligations, steps must sometimes be taken to make them do what an order, award or agreement requires. It's important to know, however, that neither judges nor arbitrators police their own orders and awards, to make sure everyone is doing what they're supposed to do, and that no one is keeping an eye on whether someone is living up to their obligations under agreements they've signed. When there's a problem, it's up to the parties to the order, award or agreement to do something about it.

Problems with the terms of an order, award or agreement about parental responsibilities or decision-making responsibilities might arise when a party to the order, award or agreement:

• takes steps or makes decisions affecting the children without first consulting the other party, when the parties share parental responsibilities or decision-making responsibilities,
• refuses to meaningfully consult with the other party about steps that must be taken or decisions that must be made, when the parties share parental responsibilities or decision-making responsibilities, or
• takes steps or makes decisions about parental responsibilities or decision-making responsibilities that are allocated to another party.

Problems with the terms of an order, award or agreement about parenting time or contact might arise when a party:

• fails to exercise the parenting time or contact to which they are entitled,
• is constantly law picking up the children to exercise the parenting time or contact to which they are entitled,
• refuses to give the children to a party entitled to parenting time or contact without a good reason for doing so,
• is constantly late transferring the children to a party entitled to parenting time or contact,
• arranges for the children to be unavailable for the parenting time or contact another party is entitled to have with them, or
• abuses any discretion they might have to withhold the children from a party entitled to parenting time or contact.

Both the Supreme Court and the Provincial Court have the ability to enforce orders made under the Divorce Act and the Family Law Act, using laws like the Court Order Enforcement Act and certain parts of the Family Law Act that talk about enforcement. The Supreme Court can also enforce orders under the Supreme Court Family Rules and the common-law rules about contempt of court. Enforcement under these laws requires making an application to court, and it's up to you to make the application.

The Supreme Court has the ability to enforce arbitration awards the way it enforces court orders, under section 19.20(1) of the Family Law Act. This also requires making an application to court, and it's your responsibility to make this application as well.

Both the Supreme Court and the Provincial Court have the ability to enforce agreements under the Family Law Act. It won't be a surprise to learn that enforcing agreements requires making an application to court, and that it's up to you to make the application.

It's important to know that the Criminal Code lists a number of criminal offences connected with orders about parenting time and contact, although I wouldn't describe these offences as options for enforcement as they require the involvement of police and "crown counsel," lawyers who work for the government and prosecute criminal offences, and aren't steps that a party to an order can take on their own. First of all, section 127 of the Criminal Code makes it an offence to fail to obey a court order other than an order for the payment of money. However, other sections of the Code describe other offences more specifically related to parenting time and contact:

• section 279: it is an offence to kidnap a person, including a child, with the intention of keeping the person against their will (kidnapping)
• section 280: it is an offence to take a child under age sixteen out of the possession and against the will of the child's guardian or parent (abduction of a person under sixteen)
• section 281: it is an offence for someone who is not a guardian or parent to take or entice away a child under age fourteen with the intention of depriving a guardian or parent of the child (abduction of a person under fourteen)
• section 282: it is an offence for a guardian or parent to take or entice away a child under age fourteen contrary to the terms of a parenting order with the intention of depriving a guardian or parent of the child (abduction in contravention of custody or parenting order)
• section 283: it is an offence for a guardian or parent to take or entice away a child under age fourteen, whether there is a parenting order in place or not, with the intention of depriving a guardian or parent of the child (abduction)

It's important to read these sections of the Criminal Code, as well as the defences available under sections 284 and 285, to really understand how these offences work and the circumstances in which criminal charges require the approval of the Attorney General.

Enforcement under the Divorce Act

The Divorce Act doesn't talk much about enforcing orders other than orders about child support and spousal support. All the act has to say about enforcing orders about decision-making responsibilities, parenting time and contact appears in section 20, which says this:

(2) An order made under this Act in respect of support, parenting time, decision-making responsibility or contact and a provincial child support service decision ... have legal effect throughout Canada.

(3) An order or decision that has legal effect throughout Canada under subsection (2) may be

(a) registered in any court in a province and enforced in like manner as an order of that court; or

(b) enforced in a province in any other manner provided for by the laws of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

In other words, a Divorce Act order about parenting arrangements and contact that's made in Nova Scotia can be registered in British Columbia and be enforced by the courts of British Columbia, and vice versa. (The Family Law Act takes the same approach to the registration and enforcement of orders made outside the province at section 75 of the act.)

In British Columbia, Divorce Act orders are enforced by the Supreme Court under the Supreme Court Family Rules, the common-law rules about contempt of court, and the special rules that apply to contempt applications. 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 or spend time in jail. See the discussion about contempt applications in the Enforcing Orders section of the chapter Resolving Problems in Court.

The court's primary goal in deciding if and how to punish someone who has breached an order is to get them 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 court may be more open to dealing with breaches of orders about decision-making responsibilities, parenting time and contact by changing the order instead. A schedule of parenting time or contact that is vague may be changed, or "varied," to be more specific and give all of the parties less discretion to decide how and when parenting time or contact will happen. An order about decision-making responsibilities might be changed to give a party the final say about particular decisions when the parties don't agree, or to remove a party's right to contribute to particular decisions.

Enforcement under the Family Law Act

The Supreme Court can enforce Family Law Act orders under the Supreme Court Family Rules, the common-law rules about contempt of court, and the special rules that apply to contempt applications in the same way that it can enforce Divorce Act orders. (The Provincial Court generally cannot punish people for contempt.)

However, the Family Law Act has rules about enforcing orders, awards and agreements that the court will usually turn to first, before deciding to deal with a problem through its contempt powers. These rules are available in the Provincial Court as well as the Supreme Court.

Parental responsibilities

There are no special rules for enforcing orders, awards and agreements about parental responsibilities under the Family Law Act other than the general rules about enforcing orders, awards and agreements. Orders, awards and agreements about parental responsibilities are enforced like any other order, award or agreement.

Section 230(2) of the Family Law Act describes the court's general enforcement powers and says this:

(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following:

(a) require a party to give security in any form the court directs;

(b) require a party to pay

(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or

(iii) a fine not exceeding $5 000.

(Remember that, under section 19.20(1) of the Family Law Act, an arbitration award can be filed in court and then be enforced as if the award was a court order. Section 44(3) says the same thing about agreements about parental responsibilities.)

In A.J.F. v N.L.S., a 2020 decision of the Supreme Court, the court talked about section 230, and section 228 about the enforcement of conduct orders, and summarized the case law to date:

[85] The measures set out in ss. 228 and 230 should be resorted to when, and only to the extent, necessary and appropriate to enforce and secure compliance with orders made under the FLA. Orders under ss. 228 and 230 may be necessary to impart on one or both parties that they are bound by the FLA and must comply with court orders.

[86] Although compliance with the FLA and related court orders is critical, the FLA mandates a more holistic approach to resolving family disputes that minimizes delay, formality and conflict between the parties: s. 199(1). The remedies available under ss. 228 and 230 empower the court to provide progressively more serious responses as a particular case may dictate. More importantly, a court’s objective should be to fashion a remedy that ensures compliance while addressing the specific situation before the court.

If none of the remedies under section 230 are effective in getting a person to comply with an order, award or agreement about parental responsibilities, section 231 of the Family Law Act gives the court the power to put someone in jail for up to 30 days:

(1) This section applies if

(a) a person fails to comply with an order made under this Act, and

(b) the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance.

(2) Subject to section 188, the court may make an order that a person be imprisoned for a term of no more than 30 days.

(3) For the purposes of subsection (2),

(a) a person must first be given a reasonable opportunity to explain his or her non-compliance and show why an order under this section should not be made,

(b) for the purpose of bringing a person before the court to show why an order for imprisonment should not be made, the court may issue a warrant for the person's arrest, and

(c) imprisonment of a person under this section does not discharge any duties of the person owing under an order made under this Act.

Before the court will even consider putting someone in jail under this section, it must first be satisfied that the person has in fact breached an order and that no other step under the Family Law Act is likely to get the person to comply with the order. Then, the person must be given the chance to explain why they breached the order and why they shouldn't be sent to jail.

Parenting time and contact

The Family Law Act has special rules about enforcing orders, awards and agreements about parenting time and contact. The rules about withholding parenting time or contact from someone entitled to parenting time or contact are in sections 61 and 62 of the act, and the rules about a person's failure to exercise the parenting time or contact to which they are entitled can be found in section 63.

When parenting time or contact is denied

Section 61(1) of the Family Law Act allows a person with an order or agreement giving them parenting time or contact to apply for certain orders when their parenting time or contact has been "wrongfully denied" by a guardian. (Under section 19.20 of the act, arbitration awards are enforced like court orders, so this section applies to awards as well.) The orders that can be applied for are listed in section 61(2) and include orders that:

• the parties participate in a dispute resolution process, such as meeting with a Family Justice Counsellor or participating in parenting coordination, mediation or arbitration,
• one or more of the parties or the child attend counselling,
• the person denied parenting time or contact have make-up time with the child,
• the guardian denying parenting time or contact reimburse the person for expenses they incurred as a result of the denial, such as travel costs and child care costs,
• transfer of the child between the parties be supervised,
• the guardian denying parenting time or contact pay money into court as a guarantee that they will comply with another order made under section 61(2), and
• the guardian denying parenting time or contact report to the court.

Under section 61(2)(g), the court can also make an order that the guardian denying parenting time or contact pay up to $5,000 as a fine or to the person denied parenting time or contact.

The key to section 61 is that the denial of parenting time or contact must be "wrongful." Obviously, the intentional breach of an order, award or agreement for parenting time or contact is wrongful. However, section 62(1) of the Family Law Act lists some specific, and rather reasonable, circumstances in which a denial of parenting time or contact is not wrongful, namely when:

(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 or nurse 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.

(In this section, "the applicant" is the person who was denied parenting time or contact and is asking the court for an order under section 61(2).)

It's important to know that even if a particular denial of parenting time or contact isn't "wrongful" under section 62(1), the court can still order make-up time under section 62(2).

If none of the remedies under section 61 are effective in getting a guardian to comply with an order, award or agreement about parenting time or contact, the person denied parenting time or contact can apply to court for one or more of the "extraordinary remdies" described in section 231 of the Family Law Act. These remedies include orders that:

• the guardian be put in jail for up to 30 days, under section 231(2), and
• a peace officer "apprehend the child and take the child" to the person entitled to parenting time or contact, under sections 231(4) and 231(6).

Before the court will even consider putting someone in jail or requiring that a peace officer apprehend a child under this section, it must first, under section 231(1), be satisfied that the person has in fact breached an order and that no other step under the Family Law Act is likely to get the person to comply with the order.

When parenting time or contact isn't exercised

Section 63 of the Family Law Act talks about the other side of the problem, when someone who has parenting time or contact fails to exercise their parenting time or contact. This is an important problem because of the emotional harm that can be caused to children when an important adult in their lives has decided not to see them, or sees them only sporadically.

Section 63 applies when "a person fails repeatedly to exercise the parenting time or contact with the child to which the person is entitled under an agreement or order, whether or not reasonable notice was given." (Under section 19.20 of the act, arbitration awards are enforced like court orders, so this section applies to awards as well.) The orders that can be applied for are listed in section 63(1) and include orders that:

• the parties participate in a dispute resolution process, such as meeting with a Family Justice Counsellor or participating in parenting coordination, mediation or arbitration,
• one or more of the parties or the child attend counselling,
• transfer of the child between the parties be supervised,
• the person failing to exercise parenting time or contact reimburse the other person for expenses they incurred as a result of the failure, such as travel costs and child care costs,
• the person failing to exercise parenting time or contact pay money into court as a guarantee that they will comply with another order made under section 63(1), and
• the person failing to exercise parenting time or contact report to the court.

Although the court has the power to put someone in jail, under section 231(2) of the Family Law Act, if none of the remedies available under section 63 are effective in getting a person to exercise the parenting time or contact to which they are entitled, the court is more likely to make the decision to simply terminate the person's entitlement to spend time with the children.

Resources and links

Legislation

• Family Law Act
• Divorce Act

Links

• Legal Aid BC's Family Law website's information page "Court orders"
  • See "Change an order or set aside an agreement made in BC" and "When can you change a final order?"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 25 August 2022.

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.