Difference between revisions of "Enforcing Orders in Family Matters"

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{{JP Boyd on Family Law TOC}}
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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 content to abide by whatever formal arrangement is in place, when someone fails to honour his or her obligations, steps must be taken to secure compliance and enforce the order.
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.


The page 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 parenting time and contact. This page will also discuss 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.


'''DRAFT'''
If the order you want to enforce is from the Provincial Court, visit Legal Aid BC's Family Law website's guided pathway: [https://family.legalaid.bc.ca/bc-legal-system/court-orders/enforce-order-or-agreement-made-bc/enforce-parenting-agreement-or-0#0 Enforce a parenting agreement or order in Provincial Court].


==Some Preliminary Comments==
==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.
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 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.
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 court proceeding, the ''claimant'', is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible for defending themselves and explaining why the orders the claimant 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 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.
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 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.
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 claimant 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 claimant in contempt, garnishing the claimant's wages, or something else altogether. 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.
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 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.
Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'', and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.


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.
The Supreme Court has the power to punish for disobedience of its orders or directions, including for ''contempt of court'', and this is one way you can seek to have your order enforced.  Again, it is your responsibility to make this application; the court won't do it for you.


==Enforcing Orders for Support==
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 [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.


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.
==Enforcing orders for child support and spousal 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.
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 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.
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 place 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.
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 ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.  


The website of the Department of Justice has a helpful overview of support enforcement mechanisms in Canada.
The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html overview of support enforcement mechanisms] in Canada.


===The Family Maintenance Enforcement Program===
===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.
The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) 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.


====Recipients of Support====
[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.
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:
====Recipients of support====


the diversion of federal payments to the payor (like tax refunds and CPP benefits);
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.
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.
FMEP has extremely long arms, and the steps it can take to compel payment are substantial, including:


====Payors of Support====
*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, and
*arranging for the payor's arrest.


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!
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, 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.


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.
If you choose to enroll 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 being 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.


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.
====Payors of support====


===Collecting Without the Help of FMEP===
Payors can enroll in FMEP 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 FMEP, 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 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 FMEP, 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 FMEP===


Recipients can take steps to enforce orders and family agreements without FMEP's involvement. Such actions can include:
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;
*forcing the payor to produce financial statements, income tax returns, and other financial information,
obtaining an order compelling the disclosure of the payor's employer, assets and sources of income;
*getting an order to compel 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,
*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.
*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
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.
*forcing the sale of the payor's property.
 
====Collecting in the Supreme Court====
 
Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called ''inherent jurisdiction'', meaning that its jurisdiction is not limited to a governing statute).  For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.
 
The Supreme Court Family Rules that specifically deal with the collection of arrears include:
 
*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court
 
A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the ''[http://canlii.ca/t/84h5  Court Order Enforcement Act]''.
 
====Collecting in the Supreme Court and 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 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, 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 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 ''[http://canlii.ca/t/84h5  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 ''[http://canlii.ca/t/84h5  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 ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].
 
Orders about parenting time and contact with children made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.  


Rule 15-4 of the Supreme Court Family Rules: Writ of Execution
Orders about guardianship, parenting arrangements, and contact made here in BC under the ''Family Law Act'' can be registered and enforced anywhere in Canada.  
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.


==Enforcing Orders for Custody or Access==
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.


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.
===Alternatives to enforcement===


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.
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!


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.
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.  


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.
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?


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


====Inside Canada====
===''Divorce Act'' orders===
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.
Orders for parenting time and contact 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.  
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.


====Outside of Canada, Court Enforcement====
These are your options:
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.
*Section 282 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.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.


====Outside of Canada, The Hague Convention====
Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.


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.
===''Family Law Act'' orders and foreign orders===


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:
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.


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.
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:
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.
<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
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.
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the <span class="noglossary">denial</span>, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the <span class="noglossary">transfer</span> of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the <span class="noglossary">denial</span>, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>


===Access===
However, the <span class="noglossary">denial</span> must have happened within the last year, and the <span class="noglossary">denial</span> must be ''wrongful''. Under section 62, <span class="noglossary">denial</span> is not wrongful in the following circumstances:
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.


====Contempt====
<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>


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.
Even if the court decides that the <span class="noglossary">denial</span> was not wrongful, the court may still make an order for make-up time.  


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.
There are also remedies if the opposite situation arises: where a party fails to exercise parenting time or contact.  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:


More information about contempt applications is available in the next segment.
*order that the parties attend family dispute resolution,
*order that one or more parties or a child attend counselling,
*require that the <span class="noglossary">transfer</span> 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.


====The Offence Act====
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:


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


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.
===The Hague Convention===
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.
The 1980 ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 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.  


===Access Problems and Changing Custody===
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.


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.
The Convention also enables access to children across international borders.


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.
As of April 1, 2020, the Hague Convention applies between Canada and the following contracting states:


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.
: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, 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.


==Contempt of Court==
As of April 1, 2020, the following contracting states do not have a reciprocating arrangement with Canada:


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


===Provincial Court Contempt Process===
Countries not listed above have elected not to be bound by the Convention.


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.
To see if these lists have since been updated, check out: [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/fr_hague the online list].


This is what you need to know about laying an Information.
For more general information and the current <span class="noglossary">standing</span> of participating nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.


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."
==Enforcing other types of orders==
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.
The ''[[Family Law Act]]'' can also be used to enforce other types of orders, such as:


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.
* 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).


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.
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.


===Supreme Court Contempt Process===
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.


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.
==Contempt of court==


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.
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.  


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.
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>
 
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==
 
===Legislation===
 
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/b8rn Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5  Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
 
===Resources===
*''[https://perma.cc/ZAT9-R8ZX Convention on the Civil Aspects of International Child Abduction]''
* Legal Aid BC's Family Law website's guided pathway on [https://family.legalaid.bc.ca/bc-legal-system/court-orders/enforce-order-or-agreement-made-bc/enforce-parenting-agreement-or-0#0 Enforce a parenting agreement or order in Provincial Court]
 
===Links===
 
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.clicklaw.bc.ca/resource/4221 Ministry of Attorney General's website "International Child Abduction FAQs"]
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice's website "Enforcing Support"]
* [http://www.clicklaw.bc.ca/resource/1242 Dial-A-Law Script "Enforcing Orders and Agreements for Support"]
 
 
{{REVIEWED | reviewer = [[JP Boyd]], August 25, 2022}}


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[[Category:JP Boyd on Family Law]]

Latest revision as of 20:11, 22 November 2022

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 brief 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.

If the order you want to enforce is from the Provincial Court, visit Legal Aid BC's Family Law website's guided pathway: 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 court proceeding, the claimant, is responsible for managing their case and ultimately convincing the judge why the orders they are asking for are fair and appropriate. The person against whom the proceeding is brought, the respondent, is responsible for defending themselves and explaining why the orders the claimant 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 claimant 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 claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

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.

Both the Supreme Court and the Provincial Court have 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 Supreme Court has the power to punish for disobedience of its orders or directions, including for contempt of court, and this is one way you can seek to have your order enforced. 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 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 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 place 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 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 Family Maintenance Enforcement Program

The Family Maintenance Enforcement Program (FMEP) 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.

Clicklaw's HelpMap has contact information for FMEP.

Recipients of support

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:

  • 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, 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, 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 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 being 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.

Payors of support

Payors can enroll in FMEP 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 FMEP, 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 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 FMEP, 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 FMEP

Recipients can take steps to enforce orders and family agreements without FMEP'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 Supreme Court

Some avenues of enforcement are only available in the Supreme Court, mostly because it has more expansive authority than the Provincial Court (the more expansive authority is called inherent jurisdiction, meaning that its jurisdiction is not limited to a governing statute). For example, you can only force the sale of land through the Supreme Court, and you can only commence proceedings for contempt of court in the Supreme Court. The Supreme Court also has more comprehensive disclosure procedures.

The Supreme Court Family Rules that specifically deal with the collection of arrears include:

  • Rule 15-4: Writ of Execution
  • Rule 15-6: subpoenas to debtors
  • Rule 15-8: sales by the court
  • Rule 15-7: examination in aid of execution
  • Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient in relation to land or other property owned by the payor under Part 5 of the Court Order Enforcement Act.

Collecting in the Supreme Court and 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 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, 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 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 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 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 about parenting time and contact with children made here under the Divorce Act can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact 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.

Divorce Act orders

Orders for parenting time and contact 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 282 of the Criminal Code makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
  • You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

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 a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

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.


There are also remedies if the opposite situation arises: where a party fails to exercise parenting time or contact. 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 April 1, 2020, 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, 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 April 1, 2020, the following contracting states do not have a reciprocating arrangement with Canada:

Armenia, Bolivia, Gabon, Guatemala, Guinea, Iraq, Jamaica, 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 standing of participating nations, check out the website of the Hague Conference on Private International Law, which reports on the status of the various Hague Conventions.

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

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 Neufeld v Nesbitt summarizes the principles governing contempt application described by the Court of Appeal in an earlier decision, Larkin v Glase, from 2009:

[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.

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 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

Legislation

Resources

Links


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


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