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Family Law Rules – Rule 26: Enforcement of Orders

Angela Princewill

November 21, 2015

RULE 26:  ENFORCEMENT OF ORDERS

WHERE TO ENFORCE AN ORDER

26. (1) The place for enforcement of an order is governed by subrules 5 (5), (6), (7) and (7.1) (place for starting enforcement).  O. Reg. 114/99, r. 26 (1); O. Reg. 142/14, s. 11 (1).

HOW TO ENFORCE AN ORDER

(2) An order that has not been obeyed may, in addition to any other method of enforcement provided by law, be enforced as provided by subrules (3) and (4).  O. Reg. 114/99, r. 26 (2).

PAYMENT ORDERS

(3) A payment order may be enforced by,

(a) a request for a financial statement (subrule 27 (1));

(b) a request for disclosure from an income source (subrule 27 (7));

(c) a financial examination (subrule 27 (11));

(d) seizure and sale (rule 28);

(e) garnishment (rule 29);

(f) a default hearing (rule 30), if the order is a support order;

(g) the appointment of a receiver under section 101 of the Courts of Justice Act; and

(h) registration under section 42 of the Family Responsibility and Support Arrears Enforcement Act, 1996.  O. Reg. 114/99, r. 26 (3).

OTHER ORDERS

(4) An order other than a payment order may be enforced by,

(a) a writ of temporary seizure of property (subrule 28 (10));

(b) a contempt order (rule 31); and

(c) the appointment of a receiver under section 101 of the Courts of Justice Act.  O. Reg. 114/99, r. 26 (4).

STATEMENT OF MONEY OWED

(5) A statement of money owed shall be in Form 26, with a copy of the order that is in default attached.  O. Reg. 114/99, r. 26 (5).

SPECIAL FORMS FOR STATEMENT OF MONEY OWED

(6) Despite subrule (5),

(a) if the Family Responsibility and Support Arrears Enforcement Act, 1996 applies, a statement of arrears in the form used by the Director may be used instead of Form 26;

(b) if the Interjurisdictional Support Orders Act, 2002 applies, a document receivable under section 49 of that Act may be used instead of Form 26.  O. Reg. 114/99, r. 26 (6); O. Reg. 544/99, s. 11 (1); O. Reg. 56/03, s. 4.

RECIPIENT’S OR DIRECTOR’S ENTITLEMENT TO COSTS

(7) Unless the court orders otherwise, the recipient or the Director is entitled to the costs,

(a) of carrying out a financial examination; and

(b) of issuing, serving, filing and enforcing a writ of seizure and sale, a writ of temporary seizure and a notice of garnishment and of changing them by statutory declaration.  O. Reg. 114/99, r. 26 (7).

ENFORCEMENT OF ADMINISTRATIVE COSTS

(8) For the purpose of subrule (7), the recipient or the Director may collect under a writ of seizure and sale, a notice of garnishment or a statutory declaration changing either of them,

(a) the amounts set out in the regulations under the Administration of Justice Act and awarded under rule 24 (costs) for filing and renewing with the sheriff a writ of seizure and sale or a writ of temporary seizure;

(b) payments made to a sheriff, clerk, official examiner, authorized court transcriptionist or other public officer in accordance with the regulations under the Administration of Justice Act and awarded under rule 24 (costs), on filing with the sheriff or clerk a copy of a receipt for each payment or an affidavit setting out the payments made; and

(c) the actual expense for carrying out a financial examination, or any other costs to which the recipient or the Director is entitled under subrule (7), on filing with the sheriff or clerk an affidavit (Form 26A) setting out the items of expense in detail.  O. Reg. 114/99, r. 26 (8); O. Reg. 142/14, s. 11 (2).

AFFIDAVIT FOR FILING DOMESTIC CONTRACT OR PATERNITY AGREEMENT

(9) An affidavit for filing a domestic contract or paternity agreement under subsection 35 (1) of the Family Law Act shall be in Form 26B.  O. Reg. 114/99, r. 26 (9).

DIRECTOR’S STATUS

(10) If the Director enforces an order under the Family Responsibility and Support Arrears Enforcement Act, 1996, anything in these rules relating to enforcement by the person in whose favour the order was made applies to the Director.  O. Reg. 114/99, r. 26 (10).

FILING AND REFILING WITH THE DIRECTOR

(11) A person who files or refiles a support order in the Director’s office shall immediately send notice of the filing, by mail, fax or email, to the clerk at any court office where the recipient is enforcing the order.  O. Reg. 114/99, r. 26 (11); O. Reg. 544/99, s. 11 (2); O. Reg. 140/15, s. 4.

TRANSFERRING ENFORCEMENT FROM RECIPIENT TO DIRECTOR

(12) A recipient who files a support order in the Director’s office shall, on the Director’s request, assign to the Director any enforcement that the recipient has started, and then the Director may continue with the enforcement as if the Director had started it.  O. Reg. 114/99, r. 26 (12).

TRANSFERRING ENFORCEMENT FROM DIRECTOR TO RECIPIENT

(13) If the parties withdraw a support order from the Director’s office, the Director shall, on the recipient’s request, given to the Director at the same time as the notice of withdrawal, assign to the recipient any enforcement that the Director has started, and then the recipient may continue with the enforcement as if the recipient had started it.  O. Reg. 114/99, r. 26 (13).

NOTICE OF TRANSFER OF ENFORCEMENT

(14) A person who continues an enforcement under subrule (12) or (13) shall immediately send a notice of transfer of enforcement (Form 26C), by mail, fax or email to,

(a) all parties to the enforcement;

(b) the clerk at every court office where the enforcement is being carried on; and

(c) every sheriff who is involved with the enforcement at the time of transfer.  O. Reg. 114/99, r. 26 (14); O. Reg. 544/99, s. 11 (3); O. Reg. 140/15, s. 4.

PLACE OF REGISTRATION OF SUPPORT ORDER UNDER THE DIVORCE ACT (CANADA)

(15) If a person wants to enforce an order for support made outside Ontario under the Divorce Act (Canada), the order shall be registered in a court, as defined in subsection 20 (1) of that Act, as follows:

1. If the recipient resides in Ontario, in the municipality where the recipient resides.

2. If the recipient does not reside in Ontario, in the municipality where the payor resides.

3. If neither the recipient nor the payor resides in Ontario, in the municipality where any property owned by the payor is located or, if the payor doesn’t have any property, in any municipality.  O. Reg. 89/04, s. 9.

PLACE OF REGISTRATION OF CUSTODY OR ACCESS ORDER UNDER THE DIVORCE ACT (CANADA)

(16) If a person wants to enforce an order involving custody of or access to a child that is made outside Ontario under the Divorce Act (Canada), the order shall be registered in a court, as defined in subsection 20 (1) of that Act, in accordance with clause 5 (6) (a) of these rules.  O. Reg. 89/04, s. 9.

REGISTRATION REQUIREMENTS

(17) The person requesting the registration shall send to the court a certified copy of the order and a written request that the order be registered under paragraph 20 (3) (a) of the Divorce Act (Canada).  O. Reg. 89/04, s. 9.

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