What Happens When Someone Refuses to Follow a Family Court Order in Alberta?
Where a court order sets out time with a child and it is not honoured, Alberta's Family Law Act provides a specific enforcement route — and that route applies to orders made under either that Act or the Divorce Act.
What the Enforcement Division Covers
The route is built around one defined thing: a time with a child clause. That is a provision granting time with a child at determinable times, days, dates or periods, in a parenting order or contact order under Alberta's Act, a parenting order or contact order under the Divorce Act, or a similar order under similar legislation.
So this route is not limited to orders made under the provincial Act. The clause reaches such an order whether interim or from an extra-provincial tribunal or otherwise, and an extra-provincial tribunal is a court or tribunal outside Alberta with authority to grant an order containing such a clause.
A denial of time is the denial of a right under a time with a child clause, and it includes the failure of a person to return a child after having spent time with the child.
Necessary expenses, where a court orders them reimbursed, include travel expenses and the costs of locating a child and securing time with the child. The provision reaches further than those two.
And the Division has a limit that matters as much as its powers. Nothing in it affects other rights or remedies available to enforce, confirm, vary or terminate the order. And unless a court has jurisdiction, nothing in the Division is to be construed as authorising it to vary or terminate an order containing a time with a child clause — so this is a route to enforce an order, not a route to change one.
What a Court Can Order
An application is made by a person who has a right under a time with a child clause. The court must be satisfied that there has been a denial of time within 12 months of the application being brought. It may then make any enforcement order that is appropriate in the circumstances.
The orders available
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Compensatory time with the child.
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Security for performance of the order.
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Reimbursement of necessary expenses actually incurred.
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A penalty of up to $100 for each day of denial, to a maximum of $5,000, with imprisonment for up to 90 days in default of payment.
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Imprisonment for up to 90 days, continuous or intermittent.
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A direction to an enforcement officer, where the court is satisfied that a denial of time will occur.
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And a direction to either party to do anything the court considers appropriate that is intended to induce compliance.
Two qualifications that are not optional
The penalty, the imprisonment and the enforcement-officer provisions may be included only if the court is satisfied that none of the other enforcement provisions would be effective.
And where the court is of the opinion that the denial of time was excusable in the particular circumstances, it may refuse to make an enforcement order at all, or make only a narrower one: compensatory time, reimbursement of necessary expenses, or a direction to do something intended to induce compliance.
It runs both ways
Where a person who has a right under a time with a child clause fails to exercise it without reasonable notice, the court may order that person to reimburse the guardian's necessary expenses.
What happens after an enforcement order
Where the order directs an enforcement officer, the court must include sufficient particulars of the time, days, dates or periods to be enforced. The officer acts at the applicant's request and on production of a certified copy of the order, complies with the court's directions, and takes all reasonable steps to find the child and bring the child to the applicant.
An officer denied entry to premises may apply to a justice of the peace for an entry order, and entry under it is permitted only between 8 a.m. and 9 p.m. unless the justice of the peace authorises another time.
The officer is not required to bring the child to the applicant if the officer determines that, in the immediate circumstances, it is not in the best interests of the child. That determination is the officer's.
The officer prepares a report, a copy of which must be made available to the applicant and to the respondent. An enforcement order can itself be varied or terminated, and the court must record its reasons for any order or decision it makes in these proceedings.
The Duties That Sit Alongside It
Both Acts place duties on the people an order binds, and they are worth knowing whether or not an enforcement application is ever made.
Under the Divorce Act, for greater certainty, a person who is subject to an order made under it must comply with the order until it is no longer in effect. Parenting time, decision-making responsibility or contact that has been allocated is to be exercised in a manner consistent with the best interests of the child. And a party who files a document that commences or responds to a proceeding certifies that they are aware of those duties.
Under Alberta's Family Law Act, a guardian exercises the powers, responsibilities and entitlements of guardianship in the best interests of the child.
The enforcement route addresses denial of time under a time with a child clause; it does not enforce every duty arising under family law.
What This Route Is Not
Unpaid child support is a different subject with a different route, and it is not enforced through those provisions. How it is enforced is covered in when child support is not paid.
How a Lawyer Helps
A family lawyer can assess whether what happened meets the definition of a denial of time, whether the 12-month condition is satisfied, and which of the available orders fits the situation. A lawyer can bring or respond to an enforcement application, and can advise a person facing one.
How parenting time, decision-making responsibility and guardianship fit together across the two Acts is set out in parenting, decision-making and child custody.
Why THEBIL Law
THEBIL Law is a family law firm in Calgary handling family law matters including parenting and child custody, divorce, family property, child support and spousal support.
Talk to THEBIL Law
Contact THEBIL Law to discuss what has happened with your order and the questions you want to address. The consultation request form can be submitted at any time, and the office makes contact to arrange a meeting.
THEBIL Law is at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada.
Call 403-457-3128.