Enforcing Orders, Awards and Agreements Involving Children

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

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

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

Introduction

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

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

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

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

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

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

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

Enforcement under the Divorce Act

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

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

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

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

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

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

In British Columbia, Divorce Act orders are enforced by the Supreme Court under the Supreme Court Family Rules, the common-law rules about contempt of court, and the special rules that apply to contempt applications. A "contempt application" is an application for an order that someone be found "in contempt of court" because they have intentionally breached a court order, by failing to do something that the order requires them to do or doing something that the order says they must not do. If the court decides that someone is in contempt of court, it can also decide to punish that person by, for example, ordering that they pay a fine or spend time in jail.

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:

[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 involved family law issues. However, the actions of these people were very serious; the court rarely sends people to jail for contempt. 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.

Enforcement under the Family Law Act

Parental responsibilities

There are no special rules for enforcing orders, awards and agreements about parental responsibilities. Orders, awards and agreements about parental responsibilities are enforced by the court under the Family Law Act, and, by the Supreme Court under the Supreme Court Family Rules and the rules about contempt of court, like any other order, award or agreement.

Parenting time and contact

When parenting time or contact is denied

Section 61(1) of the Family Law Act allows a person with an order or agreement given them parenting time or contact, to apply for certain orders when their parenting time or contact has been "wrongfully denied" by a guardian. (Under section 19.20 of the act, arbitration awards are enforced like court orders, so this section applies to awards as well.) The orders that can be applied for are listed in section 16(2) and include orders that:

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

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

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

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;

(e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and

(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

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

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

When parenting time or contact isn't exercised

Section 63 of the Family Law Act talks about the other side of the problem, when someone who has parenting time or contact fails to exercise their parenting time or contact. This is an important problem

Other issues about parenting time and contact

extraordinary remedies

relocation rules

informal arrangements

Resources and links

Legislation

• Family Law Act
• Divorce Act

Links

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

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 22 August 2022.

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