Under the old legislation, the power of the Provincial Court to enforce its own orders was very limited. If you lipped off the judge, you'd get into some trouble for sure, but enforcing orders about guardianship, custody and access was very difficult — you actually had to commence a private prosecution under the Offence Act, a complicated process that hardly anyone ever attempted — and the court could not make costs orders. At least the Family Maintenance Enforcement Program more or less took care of enforcing support orders.
The new legislation, however, comes with some pretty sharp teeth, especially s. 231 which allows the court to imprison a person for up to 30 days if it is satisfied that "no other order" under the act "will be sufficient to secure the person's compliance." (The section also allows the court to make peace officer enforcement orders in respect of parenting time and contact, which I've discussed elsewhere.)
The decision in J.R.B. concerned the variation and enforcement of a number of orders made at trial, including a publication ban and a protection order intended to prevent all contact between the father and the mother and her family. (The father had been subject to similar orders prior to trial which he breached on "countless occasions," mainly when the child was between exchanged for the purposes of parenting time, and resulted in criminal harassment charges being laid.) The application before the court, apparently brought on behalf of the mother and her family, sought: an order that the protection order made at trial be expanded; and order that the father be prevented publishing material concerning the litigation and his relationship with the mother; and, an order that the father be imprisoned pursuant to s. 231.
The court allowed the first two claims for reasons that are well worth reading. As it's the claim concerning imprisonment that I'm mostly interested in, I'll just reproduce the court's orders on these two initial claims. With respect to the protection order, the court held that:
"[13] I am going to issue a further Protection Order that provides that [the father] is not to communicate directly or indirectly with any family member of [the mother and her spouse], known to him, including, but not limited to, communicating any of the details of his relationship with [the mother], or any of the matters that are the subject of this or the Supreme Court litigation between the [the mother and her spouse] except communication necessitated by this litigation through [the mother's] counsel. The Protection Order granted at the close of trial remains in effect. This order will not expire."
With respect to the publication ban, the court made a conduct order to the effect that:
"[19] ... [The father] shall not directly or indirectly participate in the disclosure, publication, or dissemination of any material outside of court hearings relating to his relationship with [the mother], or any matters that are the subject of these proceedings to any person, group or other entity except for the express purpose of participating in private therapy sessions addressing his own issues. Furthermore, [the father] shall not annoy or disturb the [the mother and her spouse], their children or family members, friends or church members, known to him, either directly or indirectly. To be clear, this order is not intended to address any conduct by [the father] which amounts to a breach of the Protection Order, which is intended to protect those covered by the order from risk of harm. It is intended to address other conduct by [the father] which has the effect of civil harassment of the [the mother and her spouse]."
Turning to the imprisonment issue then, the court first found that the father had breached the orders made at trial by: publishing the names of the parties and the children on the internet; speaking to members of the mother's church; and, making statements to the general public at the courthouse. (To be clear, the "statements to the general public" were not made in a courtroom in the course of a hearing. At paragraph 10 of her decision, the judge repeated the father's admission that on the day in question he "elected to stand in the court house announcing to all repeatedly that '[the mother's spouse] beats his kids' and '[the mother] is a liar'," and that "following the hearing, he apparently chose to read from his website at the top of his lungs in the hallway of the courthouse, for all to hear.")
Next, the judge clarified that the order that had been breached was the publication ban, not the protection order. This is an important point as protection orders cannot be enforced through the Family Law Act and must be handled as a criminal offence under the Criminal Code, whereas conduct orders, including the publication ban, can be handled through the act's general and extraordinary enforcement powers.
Drawing a parallel with the case law on civil contempt proceedings, the judge held that the purpose of s. 231 is "not to punish" but to "secure compliance" with court orders, in order to ensure that "existing and future court orders will be respected." Because this purpose is specific to particular orders applying to particular people, s. 231 must be applied in light of the particular circumstances of each case. In other words, any order must "specifically address the actual situation before the court," and the father's conduct in this case "must be viewed in the context of the entire proceeding."
The judge then considered the sanctions taken against the father thus far, the enforcement tools available under s. 228 that are specific to the enforcement of conduct orders, which include financial penalties and adverse inferences, and the enforcement tools available under s. 231 (important bits in bold and cites omitted):
"[27] ... [the father's] conduct must be viewed in the context of the entire proceeding, in which he has established a pattern of harassing [the mother and her spouse] to the extent that he was charged with and pled guilty to criminal harassment. Subsequent to being sentenced for that offence, he engaged in the conduct complained of, and other acts which appear to be intended to punish [the mother and her spouse] or perceived offences against [the father].
"[28] While this context suggests that the lower range of the remedies offered may be inappropriate, it is well established that the sanction of imprisonment should be used sparingly, and only when no other remedy will be sufficient to secure the person’s compliance. However, neither party suggests that an alternative order is appropriate in these circumstances as this is not a situation where limits on conduct have not been previously considered. In fact, the restrictions on [the father's] contact with his son arise directly from his behaviour and his failure to address his lack of impulse control, issues regarding anger management, and the degree of his hostility and anger towards [the mother's family].
"[29] I note as well, that neither party suggests that an adverse inference is an appropriate remedy in these circumstances. In fact, the risk of an adverse inference being drawn did not inspire [the father] to fully disclose his financial circumstances prior to the commencement of the trial.
"[30] With respect to an award of costs, a financial penalty or fine, [the mother] notes in her Affidavit ... that [the father] owes $12,000 in child support arrears despite the fact that he has apparently been employed throughout these proceedings. At the end of the trial, he was also ordered to pay $5,000 to [the mother], representing the remainder of his one-half share of the cost of the report prepared ... pursuant to section 211 of the Family Law Act. [The father] had previously been ordered to contribute to that cost, but failed to meet his obligation. [The father] has not made any payment towards either debt. In addition, counsel for [the mother] points out that [the father] was released on cash bail of $1,000 after being charged with criminal harassment and that did not deter him from breaching his bail conditions to keep the peace and be of good behaviour. In fact, [the father] continued to breach the Protection Order and his bail conditions until he was ordered detained.Having concluded that no option other than jail was likely to encourage the father to comply with the various orders made to date, the judge turned to the factors that should guide her decision on the nature and length of the father's imprisonment, and her conclusion on the issue:
"[31] In these circumstances, I do not believe that imposing any kind of financial consequences for [the father's] behaviour will have the effect of securing his compliance with court orders. No sanction, other than incarceration has worked to date to impress upon him the importance of complying with court orders and I find that 'no other sanction will force upon his will the authority of this court' as was the case in Manolescu v Manolescu."
"[33] I find that the following considerations apply when determining the duration of the appropriate period of incarceration:
a) the history of criminal harassment that predates the conduct complained of;
b) the extended period over which [the father's] conduct persisted;
c) [the father's] prior assurances that he had no interest in harassing [the mother] or her family;
d) [the father's] apparent failure to address his lack of impulse control, anger management and hostility and anger towards the [the mother's family] through counseling or otherwise; and
To summarize, the steps taken by Judge Bond are roughly these:e) [the father's] involvement of others in distributing offending material about the parties to this proceeding."[34] In these aggravating circumstances, I find that more than a nominal period of incarceration is required to bring home to [the father's] the fact that he must respect the court’s authority. On the other hand, [the father's] must understand that further action will be taken if he continues to disrespect court orders in the future. In the result, I am going to sentence [the father's] to ten days in jail, to be served forthwith.
"[35] A warrant will issue for [the father's] arrest and he will be detained in custody at a Provincial facility for 10 days, commencing upon his arrest."
1. Determine whether the respondent has breached an order.
2. Determine whether the breached order is a protection order or some other order available under the Family Law Act; do not proceed if the order is a protection order.
3. Assess the gravity of the respondent's misconduct in the context of the entire proceeding, including any steps that have been taken to secure the respondent's compliance with the order, or similar orders, in the past.
4. Consider the appropriateness of any specific enforcement tools provided by the legislation in respect of the order. If one or more of those remedies are likely to be effective, apply those remedies and do not consider a sentence of imprisonment.
5. If imprisonment is necessary, review the circumstances of the proceeding to date to identify any aggravating circumstances that suggest that more than a nominal period of imprisonment is required.
Although the aggravating factors identified by the judge are drawn from the particular facts of the case before her, it seems to me that some general principles can be deduced:
6. Aggravating circumstances to be considered in determining the period of imprisonment may include:
a. the respondent's history of breaches before the breach which triggered the enforcement action;
b. the respondent's past excuses for noncompliance;
c. the respondent's past assurances of future compliance;
d. the duration of the the respondent's noncompliant behaviour; and,
e. the impact of the the respondent's noncompliant behaviour on the applicant.
I am grateful to Judge Bond for her clear writing and reasoning, and for taking up, on behalf of the Provincial Court bench, the powerful new tools the Family Law Act makes available.
Thanks to my colleagues Agnes Huang and Morag MacLeod for bringing this case to my attention.
Thanks to my colleagues Agnes Huang and Morag MacLeod for bringing this case to my attention.
