One of the hardest questions to answer for a client is "why didn’t the judge enforce the Order?"
Unfortunately, there is no good answer for this question. Some judges are extremely literal in interpreting an Order and strict with regard to non-compliance. Others are inexplicably not.
In a matter today where a client who has custody sought sanctions and counsel fees against his former spouse who refused to return the child to him in the state that he now lives after the child’s summer visit, the judge’s rulings were somewhat contradictory. The mother argued that the Consent Order was only a temporary one but the judge rejected the argument and said that the Order was clearly not temporary. One would think that that decision would naturally lead to sanctions for interference with a custody Order under the Court Rules and at the very least, would give rise to an award of counsel fees for having to file an emergent application to have the child returned (which was granted when filed and confirmed today). Wrong. Despite clear defiance of an Order, including defiance after the mother got an attorney who could explain the legal ramifications of her conduct, there were no repercussions in terms of an award of fees or sanctions.
I have had other matters throughout the years where the result would have been entirely different. However, in my experience, once a party knows that a judge is not strident in enforcement, they could become empowered to be even more brash in their defiance.
With all due respect, this does not serve the legal system. Moreover, the Court Rules suggest that a party who is forced to file an enforcement motion should be entitled to an award of fees if successful. From a policy standpoint, they should be made whole because they would not have had to file an application but for the other person’s failure to comply with an Order. One could argue that unless 100% of the fees are ordered, that the belligerent party has gained some measure of victory, or at least, was able to inflict some measure of pain on the other party. That result is unfortunate and for policy reasons, should not be countenanced by a Court. Enforcing Orders and awarding a full measure of fees would be a way to remedy this and perhaps prevent future non-compliance.