Financial settlements reached after a full hearing or by agreement of the parties are incorporated into a financial order of the court. Breach of a court order or an undertaking given to the court is contempt of court and potentially punishable by imprisonment. In most cases, both parties comply with the terms of such orders given the seriousness of the obligations. However, where either party is unwilling or unable to comply with the order for practical reasons, or simply as a result of an unwillingness to cooperate, there are two options available. The first is to seek a variation of the order by agreement or by order of the court. The second and perhaps more appropriate option where there is a lack of co-operation or a practical explanation for a failure to comply with the terms of the order, or the relevant party is outside of the jurisdiction, is to make use of the various remedies available for enforcement through the courts, either in Canada or abroad.
While the appropriate method of enforcement will depend upon the facts of your case and the assets available the most common methods include:
- a) Obtaining a charging order over property owned by the paying party, whether this is owned in their sole name or otherwise;
- b) Obtaining a third party debt order effectively to seize any money that the paying party has paid or owes to a third party;
- c) Obtaining an attachment of earnings order so that the monies due under the order can be deducted from the payer’s salary;
- d) Obtaining a warrant of possession/or execution to seize goods or to secure possession of premises; and
- e) Issuing a bankruptcy petition against the debtor.
Please note that steps to enforce maintenance orders once in arrears should be taken within twelve months of the arrears falling due, in order to maximise the chance of recovery.
These processes will obviously differ if the paying party or their assets are located outside of the jurisdiction. In such an event, specialist expertise and international network should be called upon to secure the best possible result.
If you are interested in discussing a financial enforcement issue please contact Ella L. J. Bernhard