Enforcing Orders in Family Matters

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 his or her obligations, steps must be taken to secure 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.

DRAFT

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 his or her case and ultimately convincing the judge why the orders he or she is asking for are fair and appropriate. The person against whom the proceeding is brought, the Respondent, is responsible to defending him- or herself 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 an 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.

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.

The Supreme Court 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, by jail time, by both a fine and some time in jail, or by something more creative. 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 "Family Maintenance Enforcement Act and the Court Order Enforcement Act. Enforcing 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.

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 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

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:

1. the diversion of federal payments to the payor (like tax refunds and CPP benefits);
2. the garnishment of wages;
3. preventing a payor from renewing his or her driver's licence;
4. seizing a payor's passport and federal licences like pilots' licences;
5. putting a lien on property owned by the payor; and,
6. 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 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

People usually assume that when FMEP is involved it is the payor who is delinquent rather than the recipient. It can sometimes happen, usually as part of a larger dispute, that a recipient will refuse to accept the payor's support payments. If a payor simply throws up his or her hands and says "fine, I'll keep the money," the payor can find him- or herself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may be liable to pay the money the recipient refused to accept!

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

There is a serious potential downside for payors who enroll in FMEP. Once you have 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:

1. forcing the production of financial statements from the payor;
2. obtaining an order compelling the disclosure of the payor's employer, assets and sources of income;
3. applying for an order garnishing the payor's wages or bank accounts; and,
4. 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.

Collecting in the Supreme Court

Other ways 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. These are the important parts of the Rules of Court:

• 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 under Part 5 of the Court Order Enforcement Act. Section 3 of that act also allows for the attachment of wages.

Collecting in the Supreme Court and the Provincial Court

Other ways of compelling payment are available under the Family Maintenance 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, enforcing against a company 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.

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

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

Under s. 231 of the act, the court may jail a payor in breach of an order of no other order will secure the payor's compliance.

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 custody and access made here under the Divorce Act can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements and contact made here 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 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 access — including weekends, holidays and evenings during the work week, 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 backs up with an enforcement application.

Divorce Act Orders

Orders for custody and access 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 292 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 may 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 s. 75, 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. Under these sections, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 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 s. 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.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

1. order that the parties attend family dispute resolution;
2. order that one or more parties or a child attend counselling;
3. require that the transfer of the child be supervised;
4. order that any expenses incurred as a result of the failure be reimbursed;
5. require the person to report to the court; or,
6. require the person to post security.

Under the 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 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 person entitled to the care of the child when there is "a grave risk of physical or psychological harm" to the child and there is an order in place governing which parent should have the child.

The Hague Convention only applies between states which have signed the Convention. As of 1 February 2010, the countries who have agreed to enforce custody orders with Canada are:

Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Fasom, Chile, China (Hong Kong and Macau only), Columbia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark (except for the Faroe Islands and Greenland), Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Mauritius, Mexico, Moldova, Monaco, the Netherlands, New Zealand, Norway, Panama, Paraguya, Pero, Poland, Portugal, Romania, Saint Kitts and Nevis, Serbia and Montenegro, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Turkey, Turkmenistan, the UK (including the Isle of Man, the Cayman Islands, the Falkland Islands, Montserrat and Bermuda), Uruguay, the USA, Uzbekistan, Venezuela and Zimbabwe.

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

Guatemala, Nicaragua and Thailand.

Countries not listed above have elected not to participate in the convention. For more information and the current standing of signatory nations, check out the website of the Hague Conference on Private International Law, which reports on the status of the various Hague Conventions.

Contempt of Court

If the other party persistently refuses to live up to his or her obligations under a court order, you may have no choice but to make an application to court for a finding that the other party is in contempt of court. Contempt of court is an offence punishable by a fine, jail time, or both a fine and jail time. Both the Supreme Court and the Provincial (Family) Court have the power to punish someone for breaching their orders, however their proceedures for these applications are very different and the Provincial Court's power is very limited.

Provincial Court Contempt Process

There are no specific provisions in the Provincial Court (Family) Rules or in the Provincial Court Act which deal with contempt of court, except for contempt of court occuring in court. As a result, you can't bring on a contempt application by a Notice of Motion, which his how you would normally deal with an application for an interim order, and the proceedure is somewhat complex. What you can do is lay an Information under the provincial Offence Act.

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

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

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

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

Be warned, this process is slightly complex and definitely unusual. As a result, the court clerks may be unsure about how to handle your complaint. The rules and statuory authority supporting these complaints is set out above to allow you to argue your case with the court clerk and insist that you be allowed to proceed with your complaint and exercise your rights under the Offence Act.

Supreme Court Contempt Process

Unlike the provincial court, the Supreme Court of British Columbia has something called "inherent jurisdiction," meaning that the scope of its authority is limited only by the Canadian Constitution and the rules of the common law. As a result, the court can punish a party for contempt of court without being confined to the provisions of any particular statute and whether or not the party's conduct does or does not constitute an "offence" under the Offence Act.

The rule governing contempt applications is Rule 21-7 of the Supreme Court Family Rules. You can bring an application for a contempt finding under the normal rules governing interim applications. The only difference is that you must personally serve the other person with your Notice of Application and Affidavit for the contempt application; you cannot simply mail or fax it to his or her address for service.

Because the consequences of a finding of contempt can include jail, the court will be very particular about how the application is prepared and presented. You may want to consider consulting with a lawyer about process and procedure, and the legal test to prove contempt, before you start working on your materials.

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.