Family Law... Enforcing Court Orders

Monday, May 2nd, 2016
Posted in: Family Law by Angela Walker, Partner

Angela Walker – May 2016

So I have a Court Order….But how do I enforce it?

Getting a court order and enforcing a court order are two very different things. It can often be frustrating to clients to learn that there are real limits in enforcing court orders within the confines of our legal system.

Child and spousal support orders are generally enforced through Maintenance Enforcement. Maintenance Enforcement is a government body that is specifically tasked to enforce child and spousal support orders. MEP is limited by what is contained in a court order. For instance, if an order states that parties are to share the cost of an extracurricular activity but no dollar amount is specified, MEP will likely not be able to enforce that aspect of a court order. It is therefore imperative that court orders are as specific as possible. If you attempt to enforce your own child or spousal support order at the same time as MEP, MEP will likely not continue its efforts on your behalf and will release you from the program.  MEP has strong legislated powers to do things like issue garnishment orders and have passports revoked in the event of non-payment, so MEP is often your best recourse for enforcing child and spousal support orders.

If a court order requires one spouse to pay the other spouse a sum of money for a division of property, and the spouse fails to pay, the recipient will need to get an execution order and have a bailiff attempt to recoup the moneys owed. To make this process most efficient, it is best if you have access to information about where your spouse’s assets are located (i.e. bank account numbers). If you are uncertain what assets your ex-spouse may own, you may be able to “discover” your ex-spouse to learn about where assets may be held. This means that your ex-spouse will be required to attend and be cross-examined under oath about the assets he or she may own.

If your court order relates to other issues, such as access or parenting, and one party is not complying with the terms of the order, you may need to file a court application with the court seeking a finding of contempt. Parents often find that police officers will not enforce parenting orders. Contempt is a quasi-criminal process and the court must be satisfied, beyond a reasonable doubt, that a party has not followed a court order. The following must be established to be successful in a contempt application:

  1. The terms of the order must be clear and unambiguous;
  2. The party must have had proper notice of the terms of the order;
  3. There must be clear proof of an act prohibited by the order;
  4. The party must have willfully and deliberately chosen not to follow the court order; and
  5. Explanations for the conduct may be considered.

On an application for contempt, the responding party does not need to file evidence. Contempt is not available to enforce money judgments.

This is a complicated area of the law. The team at MDW Law have years of experience assisting clients with enforcement of court orders. Please contact a member of our team today if you have any questions.

 

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