What is a Show Cause Order
Show Cause is a court order or direction that requires a party, to show cause why some specified order or direction should not be made against the party. Alternatively, it requires a party to act in a certain way, failing which the court will act in accordance with the application, as previously canvassed in the application.
The general purpose for a show cause order is to ensure the proper administration of justice, and to uphold and preserve the court’s integrity. Show cause orders, unlike final orders , are orders given when there is not enough available information to determine the most appropriate course of action. This is most commonly the case where a person may beholden to the prospective Respondent, or where there may be an incapacity arising out of the circumstances of the initial application. A show cause order is an opportunity to avoid a final order being made against a party, if sufficient cause can be shown. The Court will then call for the Respondent to show cause in writing, within a time period specified by the Court as to why the order sought should not be granted.
Common Types of Show Cause Orders
The following are a few common scenarios in which a show cause (or "order to show cause" if they ever discuss such an order) would be issued:
- Failure to pay child support or failure to pay child support in accordance with a child support order. This is perhaps the most common situation in which a show cause order might be issued. When a person fails to make payments as ordered by the court, whether it be child support or spousal support, then the other party can issue a show cause order on the party who is delinquent. The delinquent party will be ordered to appear in court and show cause as to why he/she should not be held in contempt of court for that delinquency. This is not an automatic finding of contempt. The delinquent party may set forth evidence to the court to demonstrate why he/she was unable to make those payments.
- When a party fails to follow a provision of a final Court Order. An example of this, is when one party is awarded a visitation schedule with the minor children, and the other party begins to deny the visitation rights to that parent. In this situation, the party who is being denied visitation can issue a show order to the party who is denying visitation. The party who is denying visitation would then be required to appear in Court and be given an opportunity to explain why the visitation was denied. Again, the judge will not automatically rule that the party was in contempt of court. That party would have the opportunity to speak with the judge in an attempt to explain why the visitation was in fact denied.
- When the parties are parties to a marital settlement agreement and one party refuses to comply with his/her obligation and refuses to abide by the settlement agreement. For example, if the parties were awarded, pursuant to a settlement agreement, a division of the parties’ property, and the party ordered to transfer an asset remains in possession of the asset and refuses to cooperate with the transfer. The party who is entitled to the asset can file a show cause order on the other party requiring that party to appear in court and explain why the transfer has not been made. Once again, the party who failed to comply with the settlement agreement will have an opportunity to speak with the judge and explain why the transfer has not been made.
In all of the examples above, a finding of contempt of court will only be made after the judge conducts a hearing and based upon a hearing where the court is convinced by clear and convincing evidence, that a party has failed to comply with a prior Court order.
Consequences of a Show Cause Order
Typically, show cause orders arise in relation to an application made to the court by a party, who has some issues with how the other party (the respondent) has behaved in relation to a court order. Usually, the court order in question will be a parenting order made under the Family Law Act – for instance, an order giving a parent rights and responsibility for the main care of a child.
Once a parent has breached a parenting order (perhaps, for example, by failing to return the child to the full time care of the other parent), the aggrieved parent can make an application to the court, asking that the offender be ordered to explain why they have not complied with the order. To this end, the court may issue a show cause order, giving the offender the opportunity to "show cause" as to why a penalty should not be imposed for the breach. Essentially, when served with such an order, the offender is required to provide an explanation and show – or "show cause" – why they have not complied with the order, or why a penalty should not be imposed. A show cause order will usually specify a requirement that the offender attend court, although the order may also designate a particular date or hearing that the offender must attend.
If an application for a breach of an order is received, the court will then assess whether a show cause order should be issued in the first place. A show cause order is not guaranteed. Often simply issuing a show cause order sends a strong message to the offender that they should comply with the order going forward, as they do not want to end up in trouble with the law by not doing so. However, if a show cause order is issued against a parent, and they fail to comply with the order to attend court, the parent can then be considered in contempt of court. Contempt essentially means "conscious disregard". It is defined in the case of Wentworth v Wentworth as "the wilful disobedience of a lawful order of the court". Put simply, it means that the offender (the parent, in the case of parenting orders) was aware of their obligations under the order, and yet still deliberately chose to disregard the order. Essentially, contempt of court is when a person does not obey a court order, or disrespects a court officer. In parenting matters, this includes not returning your child to the other parent’s care on a designated day, at the designated time. However, it can also include disobeying orders such as cost orders.
As to the consequences of a show cause order, if a parent fails to comply with the order by attending court, they can be fined and even imprisoned. More generally, a breach of a parenting order is a serious matter, and if the offender has failed to comply with the order (deliberately) the court will look upon this unfavourably. While it’s beneficial to maintain a good, civil relationship with the other parent, the bottom line is that a non-compliant parent is committing an offence. As such, if there is no good reason for his uncompromising position, a non-compliant parent can expect the judicial system to get involved. Consequences for failing to comply with a show cause order (when an explanation is given) can be penalties – such as fines or costs orders – or custodial (prison) sentences. If convicted, the offender’s own parenting rights may come into question, with a judge perhaps concluding that this type of contempt of court behaviour could negatively impact the child. In such cases, a judge may decide to revise the offender’s parenting order, taking away their parenting rights – or even issuing supervised recovery orders.
Responding to a Show Cause Order
Upon receipt of the show cause order, the party should immediately contact an attorney to assist them in preparing for their appearance before the Court. The attorney will prepare and file a response, laying out the reasons why the order should not issue. As part of that process, the attorney will contact the parties’ treatment providers to obtain information as to what their recommendations are as to the other party’s compliance, and to obtain any written records from the provider to further support your case. If there has been an event giving rise to the need for the show cause hearing, such as an arrest, the attorney will contact any witnesses to the event, and obtain those statements in writing. Taking these steps prior to the show cause hearing will assist the attorney and the Court in making a determination of whether there has been a violation of the Court’s previous orders. If , however, the party has previously exhibited non-compliance with the orders of the Court, it is unlikely that the Court will be persuaded by new violations. In those situations where the writ of show cause hearing is requested by the other party, the Respondent should carefully consider whether to hire an attorney to represent them at the hearing. If it appears that the Petition for Rule to Show Cause will be granted, the Respondent may want to forego the expense of hiring an attorney, and either confess he has not complied with the orders of the Court, or, in those cases where the Respondent has objections to further visitation, ask the Court to temporarily suspend the visitation until a hearing can be held as to the child’s best interests.
Show Cause Hearing Defenses & Arguments
Factors and Reasonable Beliefs – Defenses Addressing Why You Didn’t Follow the Terms of Order
You may have a reasonable belief that you complied with the order, or followed it to the best of your ability, and have some evidence to prove it. For instance, your reasonable belief may be that you didn’t pay child support, but you thought that the amount of money you paid was correct. In this situation, providing pay stubs or evidence of your financial resources can demonstrate why your thought you were complying with the order.
Justifications and Necessity – Defenses Addressing Why You Had to Do What You Did
Sometimes people break orders because it was necessary. A case example is a show cause hearing involving a young mother with a demanding work schedule. She had a past criminal record and got pulled over with marijuana in the car. The police officers knew this past and arrested her. The hearing involved her needed to go to work, but she was arrested anyway and missed it. She presented her work schedule from her employer and a crime report listing the marijuana found. The court determined there was enough conflicting evidence and if the law enforcement officer erred, then she wasn’t in violation of the order. The order in this case was that she had no marijuana in her possession and was not allowed to miss work. Because she missed work, she asked the judge to change the order. As already mentioned, she brought her work schedule and employer’s testimony that it was highly important she not miss work. She also had her employer testify as a witness, and the judge decided the arresting officer erred in this case and the violation did not occur.
Tips for Show Cause Hearings
In all seriousness, the best tip I could give is that you should always make efforts to hire an attorney to represent you in a show cause motion. With the internet readily available, it will probably be difficult to convince a judge that you do not have the resources to retain counsel and/or find someone to pay for their fees. Even the pro bono representation of a volunteer attorney or law student may be enough to convince a judge that the show cause should not be granted without at least a hearing. And even if you can convince the judge to not grant the show cause, what evidence are you going to need to defend your contempt charge?
Here are some other ideas:
-Make sure to get into court as soon as possible to ask for an ancillary order to allow you to have visitation with your child until there can be a final contempt hearing. This is important in cases of supervised visitation because the judge may agree that there will be supervised visitation until the final hearing.
-Get all the facts together as soon as possible to present to an attorney about how you have complied with the Court’s orders. For example, if the contempt arises out of a missed payment that you are trying to prove you made, present that evidence to a lawyer as soon as possible so that they can file the appropriate pleadings to prove that you made the payment and therefore should not be found in contempt.
-Dress appropriately and timely for any court dates . You want to be sure that the judge and the other party are looking favorably upon you and timely showing up in court and being dressed appropriately will go a long way in this regard.
-Do not make any negative comments about facts, the other party, or the judge in the courtroom or anywhere else in front of the court staff. Many court staff members are present in Court to help keep order but are also there to report back to the Judge. It may be inappropriate for a clerk to speak with you about the facts of your case in the courtroom, but if there are time limits that are going to affect your job, speak with them outside of the courtroom about your situation. The staff’s cooperation with you may show that you are trying to do things correctly and are looking to comply with the Court’s orders.
-When your case is called, be respectful in calling your case and speaking with the Judge. If the show cause is against you, you should acknowledge the show cause and it may go into evidence from the other party. If the show cause is against the other party, make sure to provide evidence to refute the charge and be respectful of the other party. A good witness is a humble one, so don’t get angry or frustrated in the courtroom or you might just make things worse than they already are.
-Make sure to document anything the other party does that shows they are in fact the person not complying with the existing order.