Judgment Enforcement
It is a common misconception that the conclusion of a trial and the rendering of a decision by a judge, or the acquisition of a default judgment, automatically culminates in the immediate financial remittance by the losing party (henceforth referred to as the debtor) to the prevailing party (hereafter the creditor). This belief presupposes that the issuance of a judicial decision marks the resolution of the case.
However, the reality is often quite different. Securing a judgment is frequently just the initial phase of a potentially prolonged engagement involving both parties. A judgment represents a formal decree issued by the court; it does not, however, serve as an assurance of payment.
For creditors, a variety of mechanisms exist to aid in the recovery of funds as decreed by the court. This guide aims to provide a general overview of the potential steps a creditor might need to undertake post-judgment to enforce (i.e., attempt collection of) the judgment.
For debtors, this guide offers general insights into the available courses of action following a loss in court. For instance, debtors who find themselves without the financial means to satisfy the judgment, or those who contest the validity of the judgment itself, will find detailed steps within this guide that could be pursued.
Before delving into specific enforcement procedures, this overview section will provide additional general information on the enforcement of judgments.
In this guide, numerous references to the submission or filing of motions will be encountered. A motion is a procedural device used to request an order from a judge. For a more thorough understanding of motions, please refer to the section titled "Motions and Clerk’s Orders."
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While various procedures are available to the parties involved, it is incumbent upon them to initiate the different enforcement actions available.
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Enforcement actions can be initiated immediately following the issuance of a judgment. Regardless of whether the judgment was rendered following a trial, a settlement conference, or obtained via default, it is often prudent to begin with a simple written request for payment. A letter can be sent to the debtor requesting prompt payment, clearly stating the payment address and setting a reasonable deadline, considering potential delays like postal service and any other relevant factors. It is advisable to maintain a record of all payments received.
Should this initial request fail or if a satisfactory agreement cannot be reached with the debtor, further steps will be necessary to enforce the judgment. Generally, quicker actions by the creditor tend to yield better outcomes.
The subsequent steps a creditor takes should be based on the available information regarding the debtor's assets and their capacity to pay. If the creditor possesses adequate information, an enforcement action can be taken immediately. If the debtor's financial details, such as their bank, assets, or employment information, remain unknown, initiating an enforcement process might begin with requesting an examination hearing.
It is recommended that creditors read through this entire guide to determine the most effective methods of judgment enforcement for their specific circumstances. -
Following the issuance of a judgment, debtors will likely receive a communication from the creditor requesting prompt payment. Upon receipt of such a notice, it is crucial for debtors to engage with the creditor without delay.
If capable of settling the full judgment amount, debtors should send payment directly to the creditor at the provided address. If full payment is not feasible, communication with the creditor to arrange a payment plan is essential. It is important to inform the creditor of any immediate financial constraints affecting the ability to pay and to propose a reasonable timeline for payment. Negotiation may be necessary to reach a mutually acceptable payment plan. Documenting all payments made is also critical.
If a debtor finds themselves unable to continue with agreed payment arrangements, it is imperative to notify the creditor to discuss alternative arrangements. -
If the judgment was obtained by default, debtors should consult the section "Replying to a claim" for guidance on how to request the court to set aside the default judgment. If the judgment followed a trial, the "Getting ready for court" section offers relevant information on possible next steps.
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Orders from various boards, tribunals, and agencies, as well as judgments from other levels of court within Ontario, can be filed for enforcement in Small Claims Court. Examples include orders under the Residential Tenancies Act, Employment Standards Act, and the Provincial Offences Act. These orders are treated as if they are orders of the court for enforcement purposes once they are filed. For more information, see section 19 of the Statutory Powers Procedure Act. Orders can be filed online through the Small Claims Submissions Online portal.
When an order filed for enforcement involves a foreign currency, the conversion to Canadian dollars occurs at the time of enforcement and execution of the order. For additional details, refer to section 121 of the Courts of Justice Act.
The Criminal Code of Canada stipulates that either a judge of the Ontario Court of Justice or Superior Court of Justice can order an offender to pay money to a person under:A restitution order under sections 738 or 739
A condition of probation under section 732.1
A condition of a conditional sentence under section 742.3
Should an offender fail to comply with the payment order, the entitled person may file the order at Small Claims Court, provided the ordered amount does not exceed $35,000. For enforcement purposes, once filed, the order is regarded as a judgment of the court against the offender. No fees are charged for filing the Criminal Code order or for issuing and filing any enforcement processes related to it. However, mileage and disbursement expenses incurred by the enforcement office will be charged.
Once an order is filed with Small Claims Court, it cannot thereafter be enforced in the office of the criminal court where it was originally made. -
An order originating from another Canadian province or territory (excluding Quebec) can be filed for enforcement under the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5. Permission from Small Claims Court is required before the order can be filed in Ontario. This permission can be sought by filing a Notice of Motion and Supporting Affidavit [Form 15A] along with a certified copy of the order at the Small Claims Court office where the order is to be filed.
In the supporting affidavit, the applicant should provide details regarding the progression of the matter through the court in the other province or territory, including how and when the debtor was served with any documents and whether they defended themselves in the original matter. Attendance at the motion is not mandatory but is permitted if desired. The court will notify the applicant if permission to file the order in a Small Claims Court in Ontario is granted. There is a fee associated with filing these orders.
Once filed, the order is treated as a judgment of the court against the debtor for enforcement purposes. -
As a creditor, enforcing the judgment may become necessary. For effective collection, the debtor must have one or more of the following:
Money
Assets that can be seized and sold
A debt owed to the debtor by a third party (e.g., bank account, employment income) that can be garnished
If the debtor is not immediately able to pay, the creditor may opt to wait. For instance, the debtor might secure employment in the forthcoming months. The judgment remains valid, and the creditor can attempt to collect it later through a notice of garnishment (refer to Part Two of this guide).
Should the creditor choose to enforce an order through the processes outlined below, it is their responsibility to inform the court and the enforcement office(s) when the debt has been fully paid. This action will halt any unnecessary enforcement steps by the court or enforcement office. -
Enforcement staff can only use force to enter a private dwelling if the order for the writ specifically authorizes the use of reasonable force. Full details are available under section 20(2) of the Execution Act.
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For information on claiming and calculating pre-judgment interest (interest before judgment), see the section titled "Making a claim."
After judgment, the interest is referred to as post-judgment interest. If your claim is successful, post-judgment interest automatically accrues on the amount owed to you under the judgment. -
As previously mentioned, if you are the creditor and you have opted to enforce an order through one of the processes outlined in this guide, it is your responsibility to inform the court and the enforcement office(s) that the debt has been fully paid and to halt or withdraw any enforcement steps. If the debt is fully satisfied under a notice of garnishment, you must immediately serve a Notice of Termination of Garnishment [Form 20R] on the garnishee and the clerk.
If you are the debtor, once you have settled your entire debt to the creditor under the judgment, you can complete a Request for Clerk’s Order on Consent [Form 11.2A]. On this form, check the box indicating that you are requesting a clerk’s order noting “payment has been made in full satisfaction of an order or terms of settlement.” Each party must sign the form in the presence of his or her witness. This form must be filed with the court. Refer to “Motions and clerk’s order” for more information.
If the creditor is unavailable or unwilling to complete the notice of termination of garnishment form or sign the Request for Clerk’s Order on Consent [Form 11.2A], you can file a motion to the court for an order stating that payment has been made in full satisfaction of the debt. There is a fee for this process.
Why Choose Haider Khan Legal?
Obtaining judgment may be only the first step in recovering what is owed, and we assist clients in evaluating and pursuing available enforcement remedies. Depending on the circumstances, this may include garnishment, writs, examinations in aid of execution, and other lawful measures designed to locate assets and advance recovery.
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