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Enforcing Orders in Family Matters (view source)

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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.
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'''
'''JP done. Should talk about enforcing orders for property/debt division. please check status of Hague signatories. no glossary tags to be added. internal and external links to be added'''


==Some Preliminary Comments==
==Some Preliminary Comments==
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==Contempt of Court==
==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.
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 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. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our 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.


===Provincial Court Contempt Process===
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 can't simply mail or fax it to his or her address for service. You will need to show the court:


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.
#the terms of the order you say was breached;
#how the order was breached;
#that the other party intended to breach the order; and,
#the harm resulting from the breach.


This is what you need to know about laying an Information.
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.
 
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.
==Further Reading in this Chapter==


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.
Return to the <span style="color: red;">first page</span> in this chapter.


===Supreme Court Contempt Process===
* other chapters


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.
==Page Resources and Links==


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.
===Legislation===


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.
ISOA, FLA, DA, COEA, FMEA, hague convention
*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court


===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
FMEP, BC authority under Hague convention


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.


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}
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