Enforcing Parenting Arrangements
Sometimes one or both parents do not follow the terms of an agreement or a court order. One parent might interfere with the other parent’s time with the child by doing things like not having the child ready for pick-ups or scheduling activities for the child during the other parent’s time. Sometimes one parent does not spend time with the child when they are supposed to, by doing things like missing visits or being late for visits. In more extreme cases one parent may prevent the other parent from seeing the child at all or may even abduct the child.
There are a number of possible options when this is happening. Parents can start by talking the situation over and finding out why the problems are occurring. Parents can get help from a counsellor or a mediator.
Both parenting orders and written agreements can be enforced. If a parent wants to enforce a written parenting arrangement they need to first file the agreement with the court with an Affidavit that confirms that it is still in effect and has not been changed by another agreement or by court order.
If there is a parenting order or agreement the court can make an order to enforce the order or agreement if:
- The child is being unlawfully held from someone who has the right to the child under a parenting order or agreement.
- Someone intends to remove the child from Saskatchewan when there is an order or agreement prohibiting this.
- Someone with parenting time under an order or agreement intends to remove the child from Saskatchewan and not return.
In these cases the court can direct the police or other official to locate the child and return the child to the person who has rights under a parenting order or agreement.
Preventing Child's Removal from Saskatchewan
A number of orders are available to prevent a child from being taken outside of the province or to secure their return if they have already been taken outside of Saskatchewan. These orders are available when:
- someone who is prohibited by an order or agreement from taking the child outside of Saskatchewan has done so or is planning to do so, or
- someone with parenting time under a court order or agreement has taken or is planning to take the child outside of Saskatchewan and is not likely to return.
In either of these situations the court can order that the person who has or who is planning to take the child outside of Saskatchewan:
- post a bond payable to the other party
- transfer property to a trustee
- hand over their passport and the child’s passport
The court can also direct that support payments that are being paid to the person who has removed or is going to remove the child be paid to a trustee instead of to that person.
These kinds of orders can make it more difficult for someone to take the child out of the province and also provide a financial incentive for a person not to leave with the child or to return the child. For example, a person who was ordered to post a bond would have to pay the other party the amount of the bond if they remove the child from Saskatchewan or do not return the child to Saskatchewan.
In these situations, the court can also make a parenting order or change an existing parenting order.
Enforcing Parenting Time
If someone is not providing parenting time as specified in an order or agreement the court may, if it is in the best interests of the child, make an order that…
- the person who has denied parenting time provide additional parenting time to the other party to make up for periods when parenting time was denied
- requires that parenting time be supervised
- requires the person who is supposed to provide parenting time to give security for the performance of their obligation to give parenting time
- appoints a family mediator
- makes a parenting coordinator order
- makes or varies a parenting order
Parenting time cannot be denied because of issues with child support. Even when the child is reluctant or uncooperative, the person who has the child is expected to make every effort to ensure that the other party can exercise their parenting time.
If, on the other hand, someone with parenting time is not returning the child as required or is not exercising their right to parenting time the court can:
- require that parenting time be supervised
- require the person who has parenting time to give security for the performance of their obligation to exercise parenting time or return the child after parenting time is over
- appoint a family mediator
- make a parenting coordinator order
- require that the person with parenting time provide their address and telephone number to the other party
- make or vary a parenting order
These measures are not available if the parent has a legitimate reason for not providing parenting time to the other party, not returning the child as required or not exercising their parenting time. They must however have provided the other parent with reasonable notice and an explanation.
Payment of Expenses
If one party has expenses because the other party did not comply with a parenting order or agreement, the court can require the other party to pay these expenses. They may be ordered to pay expenses such as…
- travel expenses
- costs of locating and returning the child
- lost wages
- legal fees
The expenses must be related to the other party not complying with a parenting order or agreement. For example, if one party needed to take time off work to travel to another city to pick up a child that was being kept there by the other party contrary to an order or agreement, they could ask the court for travel expenses and lost wages.
Contempt of Court
The court can find someone in contempt of court if they are deliberately disobeying a parenting order.
For the court to find someone in contempt of court it must be clear beyond a reasonable doubt that they deliberately disobeyed the court order. If there is conflicting evidence and the court cannot determine who is telling the truth, there may be a reasonable doubt about what happened and the court may not find the person in contempt.
For a person to have deliberately disobeyed an order of the court they must have known about the exact terms of the order and deliberately chosen not to obey the order. For example, if they were unable to obey the order because of an accident or illness it would not be considered contempt. As well the order itself must be clear about what the person is required to do or not do. For example, if the order only states that the person must provide reasonable parenting time and the parties have different ideas about what that means there would be no contempt of court.
For a first offence of contempt of court the person can be fined up to $5000 or sent to jail for up to 90 days or both. In the case of subsequent offences the person can be fined up to $10,000 or sent to jail for up to two years or both. If the person does not pay the fine the court can send them to jail for up to 6 months.
Access to Information
The court can order the release of information that is in the hands of the government, a public body or an individual if this is needed to assist someone in enforcing a parenting order or agreement. For example, a person or public body could be required to share things such as the other party’s address or place of employment. The other party’s lawyer cannot be required to provide information about their client.
It is a criminal offence for a parent to intentionally disobey a court order that gives the other parent parenting time or decision-making authority regarding a child under the age of 14. For this offence it does not matter where in Canada the court order was made. Police can try to locate and return the child and may charge the offending parent.
It is also an offence for a parent to keep a child away from the other parent even if there is no parenting order. However, in this situation the consent of the Attorney General is required for charges to be laid.
If a parent takes a child under the age of 16 out of, or into, Canada contrary to a court order it may be possible to have the order enforced under international child abduction agreements. More information and assistance is available from the Central Authority for Saskatchewan under the Hague Convention. You may also wish to look at International Child Abduction: A Guidebook for Left-Behind Parents, a publication of Foreign Affairs, Trade & Development Canada.
Signs that your children could be at risk for abduction include:
- The other parent has previously abducted the children.
- The other parent has made direct or indirect threats about taking the children.
- The children have made concerning remarks about moving with the other parent.
- The other parent has made significant life changes such as quitting a job, selling a home or planning an extended trip abroad.
- The other parent is hostile towards you, uses controlling behaviour and is critical of your parenting.
- The relationship with your partner is breaking down and they are from another province or country.
Depending on the legislation they were made under, there are different rules for enforcing parenting orders made in another province.
Divorce Act Orders
A parenting order under the Divorce Act
can be enforced anywhere in Canada regardless of which province the order was made in.
Provincial Parenting Orders
Parenting orders from other provinces, that are not made under the Divorce Act, must be filed with the court here to be enforced here. It must be a certified true copy of the order. The person filing the order must swear an Affidavit that the order is still in effect and must notify any parties affected by the order that it has been filed here. Once the orders are filed they can be enforced just like a Saskatchewan order.
A party affected by an out-of-province order, not made under the Divorce Act, can ask the court not to recognize the order if:
- the court that made the order did not have the jurisdiction to make it
- the order was made without the child being heard as allowed by the place where the order was made, unless it was an emergency
- the order was made without the other party having a chance to respond, unless it was an emergency
- it would be contrary to public policy in Saskatchewan for the order to be recognized