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 their obligations, steps must be taken to secure compliance and enforce the order.

The 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.

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 to 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 the lawyers are well-versed with the enforcement options available as, 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

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 their hands and says "fine, I'll keep the money," the payor can find themself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept! What can also happen is that parties disagree about the amounts actually paid (ie: if the amounts were paid in cash, or were co-mingled with other amounts owing) and as the payor the onus is on you to show how much you paid.

Payors who find themselves in such situations 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:

• 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, 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.

Under the 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.

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 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, or
3. pay up to $5,000 to the recipient as a fine.

Under s. 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 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 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 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 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 s. 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 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.

There are also remedies if the opposite situation arises - namely that 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:

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 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 occurs when a parent, institution or other body’s rights of custody have been breached according to the law of the child’s habitual residence, usually by one parent’s unilateral removal of a child without the consent of the other parent or the permission of the courts of the habitual residence. 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 June 11, 2019, 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, 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 June 11, 2019, 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 Korea, 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: [1].

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:

    Under section 213 of the Family Law Act, the court may require a payor to:
  
    (1) post security;
    (2) pay the recipient's expenses incurred as a result of the payor's breach;  or
    (3) pay up to $5,000 to the recipient as a fine.

• orders respecting the conduct of a party:

    Under section 228 of the Family Law Act, the court may require a payor to:
  
    (1) post security;
    (2) pay the recipient's expenses incurred as a result of the payor's breach;  or
    (3) pay up to $5,000 to the recipient as a fine.

• any other general order that the court can make:

    Under section 230 of the Family Law Act, the court may require a payor to:
    
    (1) post security;
    (2) pay the recipient's expenses incurred as a result of the payor's breach;  or
    (3) 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. 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.

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 their address for service. You will need to show the court:

1. the terms of the order you say was breached,
2. how the order was breached,
3. that the other party intended to breach the order, and
4. 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 process and procedure, and the legal test to prove contempt, before you start working on your materials.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Supreme Court Family Rules
• Provincial Court Family Rules
• Family Maintenance Enforcement Act
• Court Order Enforcement Act
• Interjurisdictional Support Orders Act
• Criminal Code

Resources

• Hague Convention on the Civil Aspects of International Child Abduction

Links

• Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement
• Family Maintenance Enforcement Program website
• Clicklaw HelpMap: Family Maintenance Enforcement Program details
• Hague Conference on Private International Law
• Ministry of Justice Website on International Child Abduction
• Department of Justice: Enforcing support
• Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger and Julie Brown, June 13, 2019.

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