Enforcing Parenting Orders in Alberta is a hot button issue in Calgary Alberta family law cases. Calgary denial of parenting time disputes are often emotional and stressful. Senior Calgary family lawyer, Peter Graburn explains your options in Enforcing Parenting Orders In Calgary Alberta. MacLean Law’s Calgary office has doubled in size due to the reputation it has developed for helping family law clients successfully resolve family disagreements.
Enforcing Parenting Orders In Calgary Alberta 1 877 602 9900
While the COVID-19 pandemic continues outside the country, Alberta appears to be settling into the post-Covid-19 economy. People are starting to get back to their “new normal” after 3 months of social and economic shutdown. The Courts are also starting to deal with regular matters again (not just “emergency and urgent” matters), attempting to deal with the backlog of matters everyone was expecting after the shutdown. One of those matters is how to deal with co-parents who did not respect Court Orders regarding parenting time with their children, either before or during COVID-19. Calgary denial of parenting time is a problem courts need to deal with promptly for the sake of the child. Our lawyers act out of 7 offices located across BC and in Calgary Alberta and we regularly assist clients in Enforcing Parenting Orders In Calgary Alberta.
Calgary Parenting Orders Are To Be Followed
1 877 602 9900
In our legal system, it is very clear: Court Orders (especially Parenting Orders) are to be followed (see Ivens v. Ivens, 2020 ONSC 2194 at para 85):
“A parenting order is not a suggestion nor is it a recommendation. It is a command and direction which must be obeyed. Compliance is not optional.”
Even during the COVID-19 crisis, the Alberta Courts were clear that Parenting Orders were to be followed, stating (see: SAS v. LMS, 2020 ABQB 287 at para. 44):
“Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety… Non-compliant parents can expect no second chances.”
So what happens if your ex-partner doesn’t follow a Court Order, particularly a Parenting Order which prevents you from having parenting time with your child(ren)? How is Calgary denial of parenting time rectified? How do you enforce a Parenting Order to make a non-compliant ex-partner comply with a Parenting Order? Fortunately, in Alberta, there are a number of ways (some more routine, some more extreme) to force non-compliant ex-partners to abide by Parenting Orders.
Enforcing Parenting Orders In Calgary Alberta-Options
The more common option is to obtain an Enforcement Order of the Parenting Order. Section 40 of the Alberta Family Law Act contains specific and express provisions allowing parties to seek enforcement of Parenting Orders, providing:
40(1) Subject to subsection (5), the court, on application by a person with a right under a time with a child clause, if it is satisfied that there has been a denial of time within 12 months of the application being brought, may make any enforcement order that is appropriate in the circumstances.
The Enforcement Order can include many provisions, including [at Section 40(2)]:
● compensatory (ie. ‘make-up’) time;
● security (ie. money) for the parenting time;
● reimbursement for expenses for the denial of parenting time;
● a penalty (ie. fine) for each day for the denial of parenting time (and imprisonment for default in payment);
● imprisonment (for up to 90 days) until parenting time is given, and;
● directing either party to do anything the Court considers appropriate to comply with the Parenting Order.
Contempt of Court
The more extreme option to encourage compliance (or at least punish non-compliance) with a Court Order is to have the non-compliant party held in civil (ie. non-criminal) contempt of the Order. Generally, the Supreme Court of Canada has held in regard to civil contempt (see: Carey v. Laiken, 2015 SCC 17):
“It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice…”
In Alberta, Rule 10.52 of the Alberta Rules of Court permits a Judge to declare a person to be in civil contempt if the person, without reasonable excuse, does not comply with a Court Order if they were served with and actually know of the Order. Furthermore, the terms of the Order must be clear and unambiguous to use this remedy for Enforcing Parenting Orders In Calgary Alberta.
Civil Contempt in Family Law
But is this an appropriate way to enforce compliance with a family law (ie. Parenting) Order, particularly where civil contempt can be punishable by fines, jail, or both? In a recent Alberta Court of Queen’s Bench case where a parent refused to comply with a custody and parenting order (see: Saunders v. Saunders, 2017 AJ No. 222), Associate Chief Justice Rooke declined to hold the non-compliant parent in civil contempt, finding that while he could do so, such a remedy would not improve the relationship between the child and the denied parent. Instead, he ordered a Family Law Practice Note 7 Intervention Assessment to attempt to get at the underlying reasons why the Parent Order was not complied with (ie. possible parental alienation or estrangement) in an effort to facilitate reunification with the denied parent. So while not imposed in this case, it demonstrates that civil contempt may be found as a remedy in family law in Alberta for non-compliance with a Parenting Order.
Non-compliance with a Parenting Order is a serious situation – compliance with Court Orders (even during a crisis) is a fundamental principle in our legal system, which must be maintained.
But even more serious is the negative effect of denying parenting time on the child. Section 16(10) of the federal Divorce Act (sometimes known as the ‘friendly parent’ rule) sets out the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, and that the Courts shall take into consideration the willingness of a parent to facilitate such contact. Clearly, maximum parenting time with each parent is important in maintaining the parent-child relationship; denial of such parenting time is a major intrusion into that relationship.
Call our Top Rated Calgary Family Lawyers Today At 1 877 602 9900
Fortunately in Alberta, we have a number of statutory and procedural remedies for enforcing parenting orders in Calgary Alberta. Calgary Enforcing Parenting Order Lawyers assist their clients understand the different ways to deal with a co-parent who is not complying with a Parenting Order, to assist their clients to maintain and strengthen the relationship with their child.