A parenting order is not merely a suggestion.
Once a court has made an order governing parenting time, exchanges, communication, decision-making or another parenting issue, the parties are generally expected to comply with it unless the order is changed, stayed or replaced.
Unfortunately, separation and divorce do not always end parental conflict. A parent may repeatedly arrive late for exchanges, refuse scheduled parenting time, interfere with communication, make unilateral decisions contrary to an order or fail to return a child as required.
This can lead to an important question:
What happens when a parent breaches a parenting order in Alberta?
The answer depends on what happened, the wording of the order, whether the breach can be established, the reasons for non-compliance and what remedy is being requested.
A breach of an order can potentially result in enforcement proceedings. In some circumstances, a party may also seek a finding of contempt of court.
However, breach and contempt are not automatically the same thing.
What Is a Parenting Order?
A parenting order establishes rights, responsibilities or arrangements concerning a child.
Depending upon the legislation and circumstances, an order may address matters including:
- parenting time;
- where the child lives;
- decision-making responsibilities;
- school arrangements;
- holidays and vacations;
- exchanges;
- travel;
- communication with a child;
- passports;
- information sharing; and
- procedures for resolving future disputes
The wording of the actual order is extremely important when determining whether it has been breached.
What Is a Breach of a Parenting Order?
A breach occurs when a party fails to comply with an obligation imposed by the order.
Examples could include:
- refusing scheduled parenting time;
- failing to return a child at the required time;
- repeatedly interfering with telephone or video communication required by the order;
- taking steps prohibited by the order;
- failing to provide required information;
- making a decision contrary to an allocation of decision-making responsibility; or
- failing to follow clearly prescribed exchange arrangements
Whether particular behaviour constitutes a breach depends upon the wording of the order and the facts.
Is Every Parenting Disagreement a Breach?
No.
Parents can disagree about many issues without either parent necessarily violating a Court order.
For example, an order may establish a general parenting schedule without dealing with every minor detail of transportation or extracurricular activities.
This is why sufficiently clear parenting orders can be valuable.
The more ambiguous an order is, the more difficult enforcement may become.
What Is Contempt of Court?
Contempt is a serious legal remedy concerned with protecting the authority of the Court and compliance with its orders.
The Supreme Court of Canada has established that civil contempt generally requires proof beyond a reasonable doubt of three elements.
First, the order must clearly and unequivocally state what must or must not be done.
Second, the person alleged to have breached the order must have actual knowledge of it.
Third, the person must have intentionally performed the act prohibited by the order or intentionally failed to perform the act required by it.
Importantly, the applicant does not necessarily have to prove that the other person specifically intended to undermine the administration of justice.
But contempt remains an exceptional remedy.
Courts have emphasized that contempt should be used cautiously rather than becoming the routine method for dealing with every problem involving compliance.
Does Someone Have to Intend to Disobey the Court?
The legal test is more nuanced.
In Carey v. Laiken, the Supreme Court of Canada explained that the focus is on an intentional act or omission that breaches a clear order known to the person.
The applicant does not necessarily have to prove that the other person wanted to defy the Court.
That distinction can be significant.
For example, claiming “I did not mean to disrespect the judge” does not automatically answer the question of whether a clear order was knowingly breached.
Does One Missed Parenting Visit Equal Contempt?
Not automatically.
Contempt is discretionary and serious.
The Court may consider issues including:
- the clarity of the order;
- what actually occurred;
- whether the alleged breach can be proved;
- whether compliance was reasonably possible;
- explanations for the conduct;
- whether reasonable attempts at compliance occurred;
- whether the problem is isolated or repeated; and
- whether another enforcement remedy is more appropriate
A single genuine misunderstanding can present very differently from deliberate, repeated interference with parenting time.
What If the Child Refuses to Go?
This is one of the most difficult situations.
A parent cannot necessarily avoid responsibility simply by saying:
“The child didn't want to go.”
At the same time, the circumstances matter enormously.
The child's:
- age;
- maturity;
- reasons for resisting;
- emotional condition;
- safety;
- history with the other parent; and
- surrounding family dynamics
- may all be relevant
A teenager refusing contact presents a very different practical situation from a young child being told by a parent that an exchange will not happen.
Persistent refusal may signal a need to investigate alienation, estrangement, family violence, emotional concerns or other causes.
What If I Believe the Parenting Order Is No Longer Appropriate?
Do not simply decide that the order no longer applies.
A parent who believes the arrangement should change may need to seek a variation of the parenting order.
Until an order has been changed, parties generally remain expected to comply with the existing order.
Urgent circumstances, particularly those involving immediate danger or harm, may require a different response and immediate legal advice.
Can Family Violence Justify Non-Compliance?
Safety concerns must be taken seriously.
If a parent genuinely believes that following an order would expose a child to immediate harm, urgent legal assistance may be necessary.
Alberta's Court of King's Bench Urgent Application Process specifically recognizes family matters involving a risk of violence or immediate harm to a party or child, risk of removal of a child from the jurisdiction, and certain parenting/contact matters that cannot reasonably be delayed.
A parent facing a genuine emergency should seek appropriate assistance rather than assuming that permanently ignoring the order is legally sufficient.
What Evidence Can Be Used to Prove a Breach?
Evidence may include:
- the parenting order itself;
- parenting calendars;
- emails;
- text messages;
- parenting-app communications;
- exchange records;
- school attendance records;
- travel records;
- witness testimony;
- police occurrence information where relevant; and
- a chronology of missed or disrupted parenting time
Documentation should remain factual.
Inflammatory messages sent in the heat of an exchange dispute can ultimately complicate the case for both parents.
What Remedies Are Available?
The appropriate remedy depends upon the law governing the order and the circumstances.
For parenting-time enforcement under Alberta's Family Law Act, the Court can potentially make orders involving:
- make-up parenting time;
- reimbursement of certain expenses;
- security intended to encourage future compliance;
- financial penalties;
- police assistance; and
- in serious circumstances, imprisonment
Contempt may also potentially be pursued in appropriate cases.
The objective should be to seek a remedy proportionate to the problem and consistent with the child's best interests.
Can Child Support Be Withheld Because Parenting Time Is Being Denied?
No.
Parenting time and child support are legally separate issues.
A parent cannot ordinarily respond to denied parenting time by deciding to stop paying Court-ordered child support.
Similarly, a parent should not deny parenting time because the other parent has fallen behind in support.
Enforcement of support and enforcement of parenting time follow different processes.
Should Parents Try to Resolve the Issue Before Court?
In appropriate cases, yes.
Some problems can be resolved through:
- communication between counsel;
- mediation;
- parenting coordination;
- agreed make-up parenting time;
- clarification of an ambiguous parenting plan; or
- variation of an outdated order
But alternative dispute resolution may not be appropriate where family violence, serious coercive control, child safety or persistent deliberate non-compliance is involved.
Speak With an Edmonton Family Lawyer About a Breach of a Parenting Order
Repeated breaches of parenting orders can damage parent-child relationships and escalate conflict quickly.
At the same time, enforcement applications and contempt proceedings should be approached carefully.
Ulasi Law Group assists parents in Edmonton and throughout Alberta with parenting-order breaches, enforcement applications, contempt proceedings, changes to parenting arrangements and high-conflict parenting disputes.
Contact Ulasi Law Group to discuss the order, the alleged breaches and the remedies that may be available in your circumstances.
This article provides general legal information only and does not constitute legal advice.
Frequently Asked Questions
What happens if my ex breaches a parenting order in Alberta?
Depending upon the circumstances, you may be able to apply for enforcement, seek changes to the order or pursue other remedies. Available remedies can include make-up parenting time, expenses, security, financial penalties, police assistance and, in serious cases, other sanctions.
Is breaching a parenting order automatically contempt of court?
No. Contempt has specific legal requirements and is considered a serious, discretionary remedy.
What must be proved for civil contempt?
Generally, the order must be clear, the alleged contemnor must know about the order, and an intentional act or omission must occur that breaches the order. The elements must be established beyond a reasonable doubt.
Can I stop paying support if my ex denies parenting time?
No. Alberta treats child support and parenting time as separate obligations.
What if my child refuses to go with the other parent?
The circumstances need to be examined carefully. A child's age, maturity, safety and reasons for refusal may be relevant, but a parent should not automatically assume the child's refusal eliminates the obligation to comply with an order.
Can I ignore an order if I think my child is unsafe?
Immediate safety concerns may justify seeking urgent Court intervention or other protective assistance. Obtain legal advice promptly rather than assuming the existing order has ceased to operate.
Can a parenting order be changed instead?
Potentially. Where an existing arrangement is no longer appropriate, an application to vary the order may be preferable to repeated disputes about compliance.