What Conduct Orders Are and How They Can Help Your Family Law Case

When parents are in a legal dispute, the judge has some power to help cool things down. The goal is to make things stable for the kids, prevent anyone from abusing the court process,  and settle things as peacefully as possible.  To do that, the judge might tell the parents to follow a “conduct order” – basically a set of rules to help everyone behave better.

Now, a conduct order isn’t as serious as a protection order, which is used to protect someone from violence.  But it can still be really helpful!  The judge might use a conduct order to:

• Make the parents fight less;
• Encourage them to work together when they can;
• Get them to focus on what’s best for the kids; and
• Keep the kids from getting hurt by all the arguing.

Conduct Orders: What else are the courts trying to achieve?

Section 222 of the Family Law Act (FLA) outlines four possible objectives for courts when deciding whether to implement a conduct order:

1. to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute;
2. To manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order;
3. To prevent misuse of the court process;
4. To facilitate arrangements pending final determination of a family law dispute.

Can you give me some common examples of conduct orders?

Section 227(c) of the FLA clarifies that courts can do or not do anything, per its discretion, to promote any of these four objectives. Some examples of common conduct orders ordered by courts include:

• • Restrictions on how parents can communicate with each other – including when or how they should communicate (e.g. certain times of day, only via email/text message, etc).
  • Conditions that parties must put their children’s interests ahead of their own, encourage the children to have a good relationship with the other parent, speak to the children positively and respectfully about the other parent, and make a real effort to maintain polite, respectful communications with the other parent.
  • Conditions that parties must not interrogate the children about time spent at the other parent’s home, discuss inappropriate adult or court matters, or disparage the other parent to the children.
  • Conditions that parties must encourage their families not to make negative comments about the other parent or their family, or discuss family issues or litigation in front of the children.
  • Directions that parents must report either to the court, a supervisor or counsellor by a specified date.
  • Directions that parents must enrol in and/or complete a counselling program by a specified date.

How can the courts enforce the order, if not being complied with?

Okay, so let’s say a parent ignores a conduct order that a judge has put in place.  What happens next?  Well, the focus isn’t really on punishing the parent – it’s more about making sure they follow the rules in the future.  As the BC Ministry of Justice explains, the court can try out different solutions until things are fixed, depending on what’s going on.  The courts don’t want to limit the judge’s choices too much, so they can come up with the best possible order for each case.

See: JRB v JHF, 2015 BCPC 70, para. 26; see also AJF v NLS, 2020 BCSC 26, para 85.

Can you be ordered to attend counselling if you breach a conduct order?

Answer: in some instances, yes.

In the 2020 decision AJF v NLS, 2020 BCSC 26, parties had been ordered to communicate exclusively by email, and prohibited from attending within 20 metres of the other parent’s known residence (paras. 12, 19). The mother breached the orders by, among other things, physically attending at the father’s house on several occasions & trying to contact him – a clear breach of the conduct order (paras. 18, 24, 40).

The father asked the court to impose penalties against the mother, including monetary fines and imprisonment (para. 37).

In his decision, Mr. Justice Skolrood, determined that “counselling and personal reflection” would be more effective in helping the mother develop personal development and insight into her behaviour than a “crippling” and “artificial” financial barrier (paras. 108-110). As such, Mr. Justice ordered the mother to engage in a course of counselling focused on:

• identifying and addressing her breaches of the conduct order,
• Developing better parenting skills and strategies, and
• Preparing her for potential re-establishment of visits with the children (para. 130(c)).

Can you be ordered to pay a fine if you breach a conduct order?

Answer: in some instances, yes.

In the 2018 decision CAL v DEL, 2018 BCSC 772, parties had been ordered to communicate exclusively through counsel.  The parties were barred from discussing the litigation with the children.  They were forbidden from discussing the litigation with any of the other parent’s family members or acquaintances.  They also were prohibited from emailing opposing counsel except in case of emergency (para. 14). The father breached the orders by:

• sending text messages to the mother about the litigation,
• Sharing information with the parties’ daughter about the litigation,
• Allowing the daughter to send text messages to the mother about the litigation, and
• Including the mother’s counsel in an email sent to third parties (paras. 18-29).

The mother asked the court to impose a $250 fine on the father for his behaviour (para. 48). In Her Honour’s decision, Master Carolyn P. Bouck found that the father’s messages to the mother were “not an emergency”, that the content of the messages went “beyond required information and include[d] commentary”, and failed to excuse the father’s breach of the conduct orders (para. 47). Hence, Her Honour imposed a “relatively modest” $250 fine upon the father, taking into account such payment would “not prejudice the [father’s] financial position in is proceeding, nor interfere with his ability to pay child support.” Her Honour further expressed optimism that ordering such a fine would “signal … that there are consequences when the conduct order is not followed” (para. 48).

Can you go to jail for breaching the order?

Answer: in some instances, yes.

In the 2015 decision JRB v JHF, 2015 BCPC 70, the father had been ordered not to publish any online material regarding the subject of the litigation, or identifying the parties or their child. The father had been further ordered not to talk to anyone about the mother, her husband, or the subject matter of their litigation (paras. 15-16). The father then breached those orders by:

• publishing the names of the parties and the children on his website,
• Sending emails to members of the mother’s church, containing incendiary allegations about the mother and her husband, and
• Making derogatory statements to the general public, in attendance, in the courthouse about the mother and her husband (paras. 10, 22).

The mother requested that the court either fine or jail the father for his behaviour (para. 22). In Her Honour’s decision, Judge P.M. Bond canvassed a series of factors in assessing the father’s conduct, including:

• the father’s history of criminal harassment, which predated his conduct order breaches,
• The extended period over which the father’s conduct order breaches persisted,
• The father’s prior assurances to the mother & her husband that he would not harass them,
• The father’s failure to address his poor impulse control, anger management, hospitality and anger toward the mother & her husband through counselling, and
• The father’s involvement of others in distributing offensive material about the parties in the litigation (para. 33).

Taking these factors into account, Judge Bond found that a brief period of incarceration was necessary to ensure the father would respect t he court’s authority. As such Her Honour sentenced the father to ten days in jail, and issued a warrant for his arrest (para. 34).

In conclusion, Conduct Orders can be a valuable tool in resolving family law disputes in BC.  By setting clear expectations for behavior, these orders can help reduce conflict, promote cooperation, and prioritize the best interests of the children.  And if a parent disobeys a Conduct Order, the court has a range of remedies to help ensure future compliance.  If you’re dealing with a family law issue in BC, it’s worth exploring whether a Conduct Order may be right for your case.  Our experienced family law lawyers can help you understand your options and navigate the court process.

For more information about conduct orders, or to set up a consultation with one of our lawyers in Surrey or Vancouver, call us at 604-974-9529 or get in touch.