Can a Family Court Order Be Enforced Against Property or Wages in Ontario?

You have an order or agreement, and your ex is not following it. Maybe a property payment has not been made, or maybe money is owed and you want to know whether wages or property can be reached. It is frustrating, and it is hard to know where to start.

This article explains the parts of the Ontario process that apply to this situation: what kind of obligation you are dealing with, which court may hear it, what steps a case follows, and how out-of-court options fit in. The exact enforcement tool you can use depends on your order and your facts, so a lawyer should confirm that part.

Start by identifying what kind of obligation you are enforcing

People often use the word enforcement for very different problems. A missed support payment, an unpaid property payment and a refusal to hand over a shared home are not the same, and the options for each can differ. Read your order or agreement closely and write down exactly what is required, by whom and by when.

For married spouses, a property payment often comes from equalization. Each spouse values the property owned on the separation date, less debts and excluded property, then subtracts the net property owned on the marriage date. The spouse with the larger net family property pays half the difference, and a negative share counts as zero.

• Gifts or inheritances (other than the family home), life insurance proceeds received because someone died, personal injury money, and property excluded by agreement are not shared.
• The full value of the family home must be shared even if it was owned before marriage, gifted or inherited, with a court dividing differently only in very special situations where an equal split would be extremely unfair.
• Common-law couples are not legally required to split property acquired while living together, though they may recover contributions to the other's property, sometimes through court.

Watch the deadlines

If you have not yet obtained an order for an equalization payment, time matters. A court claim for an equalization payment must be started within six years of separation or two years after the divorce is final, whichever comes first.

If you already have an order, ask a lawyer whether any time limits apply to the step you are considering. Do not assume that having an order means you can wait indefinitely.

Garnishment, writs and contempt: what to ask about

You may have questions about garnishment, writs and contempt motions if an order is not being followed. How each one works depends on the type of order and your situation, so it is worth confirming with a lawyer which tool suits a property payment, which suits support, and what proof the court will expect.

The requirements, limits and paperwork for each depend on the type of order and the facts, and they can change. A lawyer can confirm which approach fits your case and what steps come first.

• Do you have a final order or only a written agreement?
• Is the unpaid amount a property payment, support or something else?
• Do you know where your ex works, banks or owns property?
• Has your ex given a reason for not paying, such as a hardship claim?

On that last point, a spouse can ask a court to set child support at a different amount from the Guidelines amount if the spouse or child would otherwise suffer undue hardship. Examples include an unusually high level of debts reasonably incurred to support the spouses and children before separation, or to earn a living. Others include a legal duty to support another person under a judgment, order or written separation agreement. Even where undue hardship is found, the court must deny the claim if the claimant's household would have a higher standard of living than the other spouse's household after child support is set. The court must also record its reasons for a different amount. How a hardship claim relates to payments under an order you already have depends on your situation, so get advice before you assume anything.

Which court and how the case moves

The right court depends on the claims. The Superior Court of Justice hears divorce, family property division, matrimonial home claims, trust and unjust enrichment claims, parenting, and child and spousal support. The Ontario Court of Justice hears parenting, child and spousal support, support enforcement, adoption and child protection, but not divorce or property.

The Family Court Branch of the Superior Court of Justice (Unified Family Court) sits in 25 locations, and all family law issues can be heard there. Outside those locations, you start in either the Superior Court of Justice or the Ontario Court of Justice, depending on the claims. Generally you start in the municipality where you or your spouse lives, though if parenting is involved the municipality where the children live may apply instead.

If you need to start a new case, it begins with an application (Form 8, 8A or a joint application). The respondent has 30 days to serve and file an Answer (Form 10), or 60 days if they live outside Canada and the United States, and the applicant has 10 days to file a Reply (Form 10A). Support claims need a financial statement, Form 13.

After the pleadings, a case moves through a case conference, a settlement conference, a trial management conference and then trial. The court guide gives no fixed timelines for these steps.

Out-of-court options and early steps

Parties to a Divorce Act proceeding must try to resolve matters through a family dispute resolution process, to the extent it is appropriate. That includes negotiation, mediation and collaborative law. Ontario's court guide does not make mediation mandatory before a family court case.

• Mediation is voluntary, and the mediator is neutral and does not make decisions or give legal advice.
• Mediators screen each person separately to confirm an equal negotiating position, and screening continues throughout.
• Mediation-arbitration needs both parties' agreement, and the arbitration result is binding and enforceable by the court.
• Legal advisers must encourage family dispute resolution unless it would clearly not be appropriate, for example where there is family violence.

If you start a case, you must attend a Mandatory Information Program (MIP) session before your first appearance or case conference, and no later than 45 days after the case starts. It is not required if, among other exceptions, you agree on all matters or it is a motion to change a final order for child or spousal support only. A judge can also excuse attendance if your circumstances are urgent or attending would cause you hardship.

What to do next

• Gather your order, agreement, financial statements and any proof of missed payments.
• Note the date of separation and the date of any divorce, to check deadlines.
• List what you know about your ex's employer, accounts and property.
• Contact a Family Law Information Centre at your family court for information and help with mediation referrals.
• Speak with a lawyer about which enforcement tool fits your order and which court should hear it.
• If safety is a concern, tell the mediator or your lawyer, and call the Victim Support Line at 1-888-579-2888.

Frequently asked questions