By Millad Ossudallah, BC Legal Coach
Family law disputes often bring intense emotions and complex challenges. Sometimes, these disputes escalate to a level where meaningful conversations are no longer possible, leading the parties into relentless cycles of conflict. It is at this point that conduct orders can be incredibly useful. Provided at section 222 of the BC Family Law Act (the “FLA”), conduct orders are used to set clear rules for how parties should behave, guiding them towards a cooperative and productive resolution.
The court can issue a conduct order at any stage of a family law proceeding. These orders aim to ease settlement disputes, guide behaviours that hinder resolution, prevent the misuse of court processes, and establish temporary solutions until the dispute can be resolved. By addressing behaviours that hinder resolution, conduct orders can help shift the focus from conflict to collaborative problem-solving, ideally keeping disputes out of court.
In the following blog, we'll explore the sections of the FLA that empower courts to issue these orders, including some real-life examples to help tie it all together. You'll also learn the differences between conduct orders and protection orders, why you might need one over the other, and what steps to take if someone violates a conduct order.
Why are Conduct Orders Made?
Section 222 of the FLA outlines four orders a court may make for one or more of the following purposes, with respect to conduct orders:
- To facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute.
- To manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order.
- To prevent misuse of the court process.
- Or, to facilitate temporary arrangements until a family decision can be made on the family law dispute.
Conduct Orders – A Closer Look
Moving beyond the general provisions outlined in section 222, the FLA also provides detailed directives about conduct orders in more specific contexts.
Pursuant to section 224 of the FLA, the court can make conduct orders directing parties to attend family counselling. A party can make a court application and seek counselling with a particular psychologist or a registered psychologist that the parties agree upon. The court can also make a conduct order that a party attend anger management or respectful relationships counselling.
Pursuant to section 225 of the FLA, the court can also make orders on how and when the parties communicate. This provision should not be used when a protection order would be more appropriate. Ferguson v Ferguson, 2014 BCSC 216 provides a great example where the court made several conduct orders pertaining to communication to assist the parties. More specifically, the court directed that:
- Neither party were to speak derogatorily about the other party in the presence of the children.
- Neither party could discuss the family law proceedings with the children.
- And, the parties must communicate about the children via text or e-email.
In addition, and pursuant to section 226 of the FLA, the court can make conduct orders with respect to a residence and can order a party to do one or more of the following:
- Make payments towards a residence, such as rent, mortgage, utilities, etc.
- Prohibit either party from terminating utilities for a specific residence.
- Or, require a specified person to supervise the removal of personal belongings from a residence by another person.
An example of this type of conduct order can be found in C.M.H. v J.A.R., 2022 BCSC 1684. In that case, the court determined that since the respondent was the preferred occupant, he was required to make all mortgage, utility, and insurance payments related to the family residence.
If a party is seeking a conduct order and it does not fall within the FLA sections mentioned above, the court has the authority to impose a conduct order under section 227(c) of the FLA. The wording of this section is intentionally very broad, giving the court the authority to require either party to “do or not do anything, as the court considers appropriate” so long as it relates to one or all of the purposes provided in section 222. For example, the court can grant a conduct order for not possessing, consuming or being under the influence of alcohol, cannabis, or any other controlled substance. Another example would be a conduct order prohibiting a party to attend at a particular residence.
Conduct Orders Versus Protection Orders – What’s the Difference?
Protection orders are powerful tools to address family violence and can be made on application by a party, family member who is at risk, a person on behalf of an at-risk family member, or on the court’s own initiative. It must be apparent that a person’s conduct meets the definition of family violence, and the ultimate purpose is to prevent future family violence. To clarify, The FLA has defined family violence as physical abuse, sexual abuse, attempts of physical or sexual abuse, psychological or emotional abuse, or, in cases of a child, direct or indirect exposure to family violence.
Protection orders are enforced under section 127 of the Criminal Code of Canada (the “Criminal Code”), which is triggered by a breach of a protection order. This means that if a party breaches a protection order, the police can be contacted to enforce the terms of that order. On the other hand, conduct orders are not enforced under the Criminal Code and, if a party breaches a conduct order, they will likely be subject to a fine for non-compliance or, in extreme circumstances, they can be incarcerated for a short period of time.
What Happen If a Party Breaches a Conduct Order?
If a party fails to comply with a conduct order made under the FLA, then a party may file a court application pursuant to section 228 of the FLA. In that application, they can request that the court impose a fine, not exceeding $5,000, on the party who breached the order.
The court has emphasized that the purpose of seeking a remedy under section 228 of the FLA is not intended to punish, but rather to ensure compliance with the conduct order. The court must find that a party has breached the conduct order (i.e. not followed the order made by the court). The court will also look at a party’s repeated and past non-compliance with court orders when deciding whether a fine would be warranted in any given circumstance.
This is exactly what happen in J.E.D.H. v M.I.K., 2023 BCSC 648. The respondent neglected to pick up the children from school and engaged in communications with the claimant that were deemed disrespectful and discourteous. When the matter was brought before the court, they noted the respondent’s repeated and flagrant non-compliance with the terms of the conduct order, and ultimately imposed a $2,000 fine on the respondent for violating the terms of the conduct order.
Conduct orders serve as useful tools in family law, offering structured guidance to parties embroiled in disputes. They are tailored to address specific behaviours and circumstances, and the factual circumstances of each case will depend on the conduct order that is pursued by a party. To navigate these complexities and to understand the full implications of seeking or complying with a conduct order, professional legal advice can be very valuable. At Coach My Case, our expertise lies in offering guidance and support, empowering you to make informed decisions in your family law journey. Ready to explore your options and understand the specifics of conduct orders for your situation? Contact us for a free 20-minute consultation today.