Enforcement of Parenting Arrangements

 

Duty to Follow Court Orders

Parties have a duty to follow Court orders or registered agreements, including ones about decision-making responsibility, parenting time, contact time or interaction. The duty to follow a court order comes from the order itself, the Court Rules, and other laws. For example, both the Divorce Act and Parenting and Support Act state that the parties have the following duties:

  1. Act in your children’s best interests – Each party must exercise any decision-making responsibility or parenting time allotted to them, or contact time under a contact order, in a manner that is consistent with the best interests of the child/children;

  2. Protect your children from conflict - To the best of each party’s ability, they must protect the child/children from conflict arising from this proceeding;

  3. Try resolving the issues out of court - To the extent that it is appropriate to do so, parties must try to resolve the issues in this proceeding through a family dispute resolution process;

  4. Provide all information required in your case – Parties must provide complete, accurate and up-to-date information as required under law, as part of this proceeding and under a Court Order; and,

  5. Follow your court order - If subject to an order, parties must follow and comply with the order until it is no longer in effect.

For more information, see duties for parties, duties for legal advisers or duties for the court. 

 

Judges’ Ability to Enforce

Judges have the ability to enforce the terms of orders based on their authority as judges (for Supreme Court), Court Rules and other laws. There are several ways that this can be done.

 

Possible Outcomes When Parties do not Follow a Court Order

Not following a court order may lead to very serious consequences, depending on the situation. What might happen will depend on each case and factors like how serious the breach is, whether there have been breaches in the past and whether further breaches are likely.

 

Out-of-Court Solutions to Problems with Parenting Arrangements

Agreeing to Changes

In many situations, parties can agree to changes to parenting arrangements. This is usually the case for minor or short-term changes like changing pick-up or drop off times or agreeing to switch weekends because of illness or important life events etc.

If possible, and safe to do so, parties can talk to each other and develop a plan which they both agree on and which is in the best interest of the child.  If you already agree to the changes and are clear they are the best option, then putting the new arrangements down on paper and having all parties sign the document will often work. In some cases, parties could also exchange emails or texts in a way that clearly show what they have agreed and that they are all in agreement. 

Negotiating Changes to your Court Order

If your personal circumstances, or the conditions of your Court Order, do not allow for you to contact or talk to the other parties, consider whether a trusted friend or family member could help you develop a plan.  In some cases, court staff may also be able to assist parties to negotiate through Conciliation (Assisted Dispute Resolution). Contact your local Supreme Court (Family Division) for more information. Lawyers can help to give legal advice, to negotiate and to prepare a new court order if parties agree. Information on ways to get legal advice is available here.

You can also find information on other ways to resolve a problem without going to court here.

Enforcing Exchanges or Re-establishing Contact – Supervised Parenting and Exchange

The Supervised Parenting and Exchange Program may be useful in establishing or re-establishing contact with children or in ensuring that visitation takes place by having the exchange part of the visit supervised by a neutral third party.  You can learn more about that Program here.

Getting Legal Advice when Changes are Being Considered

In many cases, parties will want to get legal advice on their best steps forward. Some changes could have huge effects that may not be understood at the time parties agree and may not be easily fixed after the fact. It is best to know what to expect and to address issues as part of any final arrangements.

Specifically, big changes, like changing primary care parenting, agreeing to relocation, or changing decision-making responsibilities will have big consequences for children, parties and others who rely on your court order to perform their work. For example, changing court order terms can also affect how others interpret your court order, like teachers, doctors, health insurance personnel and passport officers. Changes could affect how much income tax you pay and whether or how much you might receive for government subsidies and benefits. Changes could also affect payment or enforcement of the child support terms in court orders. 

Police Enforcement of Parenting Terms

Police enforcement of family law court orders is based on the discretion of those policing agencies. This means that the police have the right not to enforce a court order between parties or to enforce it in a way that they believe fits the situation. Each Policing Agency (R.C.M.P. and each local police force) will have its own policies on this issue.

Whether the police will become involved will largely depend on the facts of the case and the terms of the court order. The police may be prepared to play a limited role in some instances, for example to check on the child to make sure they are safe.  They are also more likely to play a role in cases where the child’s health and safety is at risk or cases which involve suspected parental abduction of a child.

If you are thinking of involving the police, you will need to have a copy of your court order to give to them. In cases where the health and safety of the child is not at risk, it will be a good idea to think about how police being involved could affect the child and whether this would be in the child’s best interests. Possible outcomes for children will often depend on many factors, such as the temperament of the child and their age and stage of development.

 

Possible Ways that Parties can Enforce Court Order Terms (Parenting/Contact) Through a Court Process

 

Making an Application to Vary (Change) the Court Order Terms

A party to a court order may apply to the court to change the order if there has been a change in circumstances that supports having the court order updated. The application is often called a Variation Application.  More information about making this kind of application is available here and the online intake module is here.

A court application might be needed in situations where the terms of the court order are not specific enough, cause confusion, or where the order is no longer in step with the child’s situation and needs or those of any of the parties.

  • When the court order is not specific enough: many court orders set out very basic terms about parenting arrangements. For example, orders will often say that the visiting parent is to have reasonable parenting time on reasonable notice to the other parent. These kinds of arrangements work well in situations where the parents are able to talk about their plans and agree on reasonable arrangements in their situation based on the child’s best interests and other circumstances. 

  • When the court order is no longer in step with the child’s and/or parties’ situations. Usually, court orders reflect what was best for children and families at a particular point in time. Sometimes court orders no longer work well because the child’s needs have changed, or something has happened in the parties’ circumstances that make the current terms unworkable. For example, parenting terms that worked well when the child was a baby, may no longer suit the situation when the child is 10 years old.

 

Making an Application for Denial of Time

Parenting and Support Act Enforcement

In some cases, parties may feel that the parenting arrangements set out in the court order are workable, but not being followed. There are special court applications that may be filed to ask the court to enforce the terms of the order. There are a number of requests or penalties that can be granted by the court as part of the application. These applications are sometimes called Applications for Denial of Time. You can find more information on the forms needed to make an application here.

The Parenting and Support Act is the Nova Scotia parenting law that provides ways to enforce parenting arrangement clauses in court orders, like orders for decision-making responsibility, parenting time, contact time or interaction. It also describes what parties requesting enforcement need to prove or show, in the evidence presented to the court, when parenting enforcement cases are heard. Enforcement cases can be very complicated. Legal advice, or legal representation where possible, is recommended.

 

Applications for Denial of Time – to enforce parenting or contact arrangements in court orders that were denied

There are three main matters to be decided as part of a denial of time application:

  1. Was the application made in time

  2. Was the denial of time wrongful and, if it was,

  3. What penalty is the most appropriate to deal with the denial of time.

 

1. Time limit – was the enforcement application filed within 12 months of the denial?

Anyone wanting to apply to a court to deal with denial of time issues under the Parenting and Support Act must make the court application within 12 months of the denial or failure to follow the terms of the court order.

 

2. Wrongful denial - was the denial of parenting or contact time or interaction wrongful? 

The court will need to look at all of the facts of the case as presented in evidence to decide whether the denial of time was the right thing or the wrong thing to have happened in that situation.

There may be some special situations where a denial of time was the right thing to do under the circumstances. This might happen if a parent had a reasonable belief that their child would suffer family violence or abuse; there was a reasonable belief that the visiting parent was impaired by drugs or alcohol; or cases where a visiting parent or person with contact time has not visited in a long time.  Each case must be considered based on its unique facts.

As part of deciding the issue of wrongful denial, the court will want to know if a person has disobeyed the order on purpose more than once when they did not have a legally valid reason for doing so.

If there is a Reasonable Excuse

If the court finds that the time was denied, but for an excusable reason, then the judge may give time to make up for what was lost.

If there is no Reasonable Excuse

If the court finds that the time was denied and that there is not reasonable excuse for the denial, then the court can order enforcement steps to be taken.

 

3. Enforcement or Penalty Options when there is not reasonable excuse

Denial of time penalties range from less serious to very serious depending on the situation and what response “fits” to ensure the child’s best interests are looked after and to help ensure that the court order will be followed. The court could order things like:

  • Attend counselling or another program or service (either one or both parties, the child)

  • Compensate for time lost by giving new time

  • Pay expenses

  • Make an order for supervised exchange or parenting time, for example, under the Supervised Parenting and Exchange Program 

  • Pay costs for the application

  • Fine the person up to $5,000, and

  • Require the parties to come back to court to deal with making a new court order.

 

Where the Court feels there is a Continuing Risk of the Court Order Not being Followed

If the court believes that a party is not likely to follow a new order being granted, then the court can take extra steps to have that party post money (called security) with the court which could be paid out to the other party in the future if the order is not followed. The court could also require that the party not following the order have to report to the judge or some other person on terms the court decides.

 

Order to Appear in Court to Explain why Failed to Follow Order

A party can request that the Court require a party to appear to explain why they have failed to follow the order. As part of this requirement, the court can also order that a person be imprisoned for up to 6 months.

You can find more information on the forms needed to make an application here.

 

Requesting an Order Preventing Removal of a Child

A party may apply to a court for an order requesting that a child not be taken out of a certain area or location where a party believes that a child might be removed from the province and is not likely to return them. As part of these applications, the court can make a further court order which requires the person intending to leave with the child to post money (security) with the court, give up the child’s passport, transfer property to a trustee (person appointed for the safekeeping of the property) or pay child support to a trustee.

If this request is granted, a judge might also give directions for further steps in a proceeding, particularly if one party confirms they wish to move or relocate with the child. On the other hand, if you or the other party have already made an application to the court seeking to authorize (allow) or prohibit (disallow) the relocation of a child under sections 18F, 18G or 18H of the Parenting and Support Act, then “an order preventing removal of a child” is not available. As these issues can be complex and may overlap, getting legal advice is recommended.

You can find more information on the forms needed to make an application here.

 

Making an Application for Failure to Exercise Time

In some cases, parties fail to use the parenting or contact time provided to them under the terms of a court order. In these cases, the other party may have the right to make an application to address the failure to use that time.

There are three main matters to be decided as part of an Application for Failure to Exercise Time:

  1. Was the application made in time

  2. Was the failure to exercise time wrongful and, if it was,

  3. What penalty is the most appropriate to deal with the denial of time.

 

1. Time limit – was Failure to Exercise Time application filed within 12 months of the denial?

Anyone wanting to apply to a court to deal with failure to exercise time issues under the Parenting and Support Act must make the court application within 12 months of failure to follow the terms of the court order.

 

2. Was the failure to exercise parenting or contact time or interaction wrongful? 

The court will need to look at all of the facts of the case as presented in evidence to decide whether it was reasonable for the party not to have exercised the parenting or contact arrangements in that situation.

There may be some special situations where not exercising time is the right thing to do under the circumstances. For example, if the child would be at risk during a visit and the party cannot protect the child. Each case must be considered based on its unique facts.

As part of deciding the issue of whether it was reasonable for the person not to have followed the court order, the court will want to know if a person has disobeyed the order on purpose more than once when they did not have a legally valid reason for doing so.

If there is no Reasonable Excuse

If the court finds that there was not a reasonable excuse, then the court can order enforcement steps to be taken.

 

3. Enforcement or Penalty Options when there is not reasonable excuse

The consequences for not exercising time is meant to fit the seriousness of the situation, to ensure the child’s best interests are looked after and to help ensure that the court order will be followed in the future. The court could order things like:

  • Attend counselling or another program or service (either one or both parties, the child)

  • Compensate or pay expenses for not having exercised the time (like childcare)

  • Make an order for supervised exchange or parenting time, for example, under the Supervised Parenting and Exchange Program

  • Pay costs for the application

  • Fine the person up to $5,000, and

  • Require the parties to come back to court to deal with making a new court order.

 

Where the Court feels there is a Continuing Risk of the Court Order Not being Followed

If the court believes that a party is not likely to follow the order, then the court can take extra steps to have that party post money (called security) with the court which could be paid out to the other party in the future if the order is not followed. The court could also require that the party not following the order have to report to the judge or some other person on terms the court decides.

 

Getting Legal Advice

Parties wanting information about how to enforce their rights may be helped a great deal in making decisions by speaking to a lawyer. Lawyers can give advice about options, including what kind of court application to file, what to ask for in terms of penalty and to get advice about the evidence that may be presented in court. Lawyers may also be prepared to act as advocates for the parties in their dealings with other agencies, like the police.

 

Making a Contempt Application

Another way to enforce parenting arrangements set out in a court order or registered agreement is through a special court application called Contempt of Court. Contempt applications are made under the Court Rules, called the Civil Procedure Rules, and specifically under Rule 89 found here. Contempt applications are very serious matters.

Contempt may occur when a person disobeys or disregards a court order, or a part of a court order, that they knew existed. This is also sometimes called violating or breaching a court order. Contempt proceedings are meant to punish people for not following a court order and by punishing them, ensure that they follow the court order in the future.

Contempt proceedings can be very complicated. It is recommended that anyone wishing to make a contempt application speak with a lawyer before applying and that anyone answering to a contempt application also get legal advice. If you decide to go forward with a contempt application, then the lawyer or court staff will be able to provide you with the court forms needed to be filled out. The documents to be used will depend on the type of order you are wanting to enforce and the level of court involved. 

Contempt applications require the responding party to be given notice of the time, date and place of the proceeding and that they have the right to get legal advice and be represented by a lawyer during the proceeding. They also have the right to have the applicant’s witnesses be present to be cross-examined and the right to present their own evidence by filing an affidavit or calling a witness.

Contempt applications can take some time to be heard in court because they proceed like a criminal law matter, but in a family law case.

As part of a contempt application to the court, the applicant must show beyond a reasonable doubt that:

  1. The person not following the court order terms was aware of the order and failed to obey it.

  2. The court order terms were specific enough to show that someone disobeyed them.

  3. The person not following the order had no reasonable or valid reason for disobeying the court order terms (they wilfully disobeyed the court order).

It is the applicant’s job to provide overwhelming evidence to convince the judge of the above. This can be done in many ways, like through the party’s or their witnesses’ testimony (affidavit or oral), pictures, videos, documents, etc. The above process is the first part of the proceeding, often called the contempt hearing.

The responding party to a contempt application may, but is not required to, testify in response or to provide any witnesses or other documents etc. in response. This is similar to how things proceed in a criminal trial.

If all of the above things are proven, then the person who was found to have been wilfully disobeying the court order can be punished for it. The court may schedule a separate time and date for the second part of the hearing, often called the punishment or sentencing phase. 

Contempt can be punished in a variety of ways, such as through a fine, by jail time, by both a fine and jail time, etc.  The fine is determined by the judge. Jail time can be up to 5 years. Jail time may be continuous (all at once) or intermittent (served in “chunks” of time). House arrest is also possible.

The court may also order other options, including ones that ensure that the court order is followed in the future:

  • making up for lost parenting time

  • attending counselling

  • having supervised parenting time

  • preventing a party from making further court applications

  • payment of costs or fees, or

  • posting security.

 

Warrants for Non-attendance

Warrants for arrest can be issued for a party’s arrest if they do not attend Court under the Contempt Rules.

Purging Contempt

In some cases, parties who have been found in contempt may be able to “purge” (exonerate or clear themselves of) their contempt by taking action to show their intention to obey the order. This is more difficult to do when the parenting terms are involved, but it may be possible. 

Getting Legal Advice

Parties wanting information about how to enforce their rights may be helped a great deal in making decisions by speaking to a lawyer. Lawyers can give advice about options, including what kind of court application to file, what to ask for in terms of penalty and to get advice about the evidence that may be presented in court. Lawyers may also be prepared to act as advocates for the parties in their dealings with other agencies, like the police.