Winning a lawsuit is one thing. Collecting on the judgment is another. Many creditors who obtain monetary judgments discover that the debtor has no intention of paying voluntarily, has hidden assets, has transferred property to family members or related companies, or has simply disappeared. The legal system provides a substantial arsenal of enforcement tools to deal with each of these situations. Using them effectively requires understanding how they work, when each one applies, and how to sequence them to maximize recovery.
This guide covers every major method of enforcing judgments and orders in Ontario, from the initial steps of formalizing the order through the writ of seizure and sale, garnishment, examination in aid of execution, and the legislative devices available to reverse transactions designed to put assets beyond a creditor’s reach. It also addresses declaratory judgments, injunctions, civil contempt, and the enforcement of foreign judgments in Ontario.
Before Enforcement Begins: Formalizing the Order
A monetary judgment cannot be enforced until the court’s decision is transformed into a formal order. The court’s endorsement at trial, on a motion, or on an application is not itself an enforceable order. The creditor must take the additional steps of drafting the order, having it approved, signed, and formally entered by the registrar.
Under Rule 59 of the Rules of Civil Procedure, any party affected by an order may prepare a draft and send it to all parties represented at the hearing for approval of its form. In unopposed proceedings, approval of the opposing party is not required. In contested proceedings, the opposing party must approve the form and content of the draft, or the creditor may take out an appointment to settle the order before the registrar. If the process is urgent, the judge who made the order may sign it without the parties’ approval.
Once the order has been approved and signed, it is entered by the registrar in the book of record. No enforcement proceedings may properly be taken under an order until it has been entered. Post-judgment interest runs from the date the endorsement was made, not from the date the formal order is entered, unless the endorsement provides otherwise.
If a notice of appeal has been delivered, enforcement of the monetary order is automatically stayed. A writ of seizure and sale may still be issued and filed with the sheriff, but it cannot be further enforced while the stay is in effect. A stay may be lifted by an order of an appellate court justice in appropriate circumstances.
What Qualifies as an Enforceable Monetary Order
A monetary order susceptible to enforcement includes a default judgment under Rule 19, an award of costs under Rules 57 or 58, and an award of damages made at common law or under legislation. Under Rule 1.03, an “order” includes a judgment, and Rule 60.02(1) identifies the enforcement mechanisms available once a formal order has been obtained and entered.
The Writ of Seizure and Sale
The writ of seizure and sale is the primary and most immediate enforcement tool available to a judgment creditor. It is issued by the registrar of the court where judgment was entered and filed with the sheriff of the judicial region where the creditor believes the debtor has property.
Issuing and Filing the Writ
No leave of the court is required to issue a writ of seizure and sale if the writ is obtained within six years of the effective date of the order. The writ can be filed electronically with the sheriff. Until it is filed with the sheriff, the writ does not bind the lands of the judgment debtor in that judicial region. Importantly, Ontario has no central writ registry: a writ filed in one judicial region does not bind the debtor’s property in another region. Creditors must file separately in each region where they believe the debtor has assets.
The name of the judgment debtor in the writ must match precisely the name of the defendant in the judgment. An error in spelling can render the writ unenforceable against the debtor’s real property, since mortgagees and purchasers conduct name searches in the sheriff’s and land titles offices. A writ in the wrong name does not bind the debtor’s land.
When Leave Is Required
If six or more years have elapsed since the effective date of the order, leave of the court must be obtained before a writ of seizure and sale may be issued. An order granting leave expires if the writ is not issued within one year. Courts assess three main criteria on a leave motion: whether the judgment is valid, whether it remains unsatisfied, and whether there is a legitimate reason to enforce it after the delay. A creditor is generally entitled to enforce a judgment within 20 years of its date; however, courts will refuse leave where the creditor has so delayed enforcement as to have waived its rights, or where the debtor has been prejudiced by changes in financial position attributable to the delay. Equitable grounds can also justify refusing leave.
Duration and Renewal
An issued writ of seizure and sale remains in force for six years from the date of issue, and for a further six years from each renewal. The sheriff notes the expiry date on the writ. A writ may be renewed before it expires by filing a request to renew with the sheriff, who records the date of renewal. A writ that expires without renewal may be replaced by an alias writ with leave of the court. Courts have held that to deny an alias writ in circumstances where the underlying judgment remains valid and unpaid would deprive the creditor of the fruits of its judgment in an unjust and incongruous way.
What Property Can Be Seized
Section 9 of the Execution Act defines the broad scope of writs of seizure and sale. The sheriff may seize and sell the judgment debtor’s beneficial interest in property, not merely the legal title. A beneficial interest is a chose in action that qualifies as personal property within the meaning of the Act. The property exigible under a writ includes shares, dividends, and equitable rights in corporate securities; patents of invention; equitable interests in chattels and leasehold interests; money, securities for money, book debts, and mortgages; security interests in personal property; and any estate, title, right, or interest in land that can be conveyed.
The Execution Act also permits the sheriff to seize property held in trust for the execution debtor. Where a debtor has transferred assets to trustees who hold them for the debtor’s benefit, the court may order the sheriff to seize and sell those assets under section 9 of the Act without requiring the creditor to prove fraud, making this a useful alternative to a fraudulent conveyances action.
Direction to Enforce
Filing a writ of seizure and sale is notice to the world that property of the judgment debtor is encumbered. To take active measures, the creditor must issue a direction to enforce (Form 60F) to the sheriff, along with a copy of the order as entered. The direction instructs the sheriff to formally seize and attempt to dispose of a specific asset. The sheriff will require specific instructions identifying what goods to seize and where, along with a deposit for the sheriff’s costs.
The sheriff may decline to enforce a writ where there is genuine uncertainty about whether it was properly issued or filed. This discretion is narrow and does not extend to general disagreement with the enforcement; it applies only where, for example, the sheriff has received evidence that no money is actually owing under the order at the time the writ was issued.
Seizure and Sale of Personal Property
For a seizure of personal property to be effective, the sheriff must enter the premises where the goods are located and formally declare to the debtor or the debtor’s agents that the goods are being seized. The sheriff may take “walking possession” by obtaining a bailee’s agreement from the debtor to hold the goods until disposal, or may take “actual possession” by physically removing the goods.
Personal property cannot be sold by the sheriff until notice of the time and place of sale has been mailed to the creditor and debtor at least ten days before the sale and published in a newspaper of general circulation in the place where the property was seized. The sale ordinarily takes place at public auction. A judgment creditor may purchase the debtor’s interest at the auction. The sheriff’s duty is to sell within a reasonable time after seizure, to conduct the sale to the standard of a reasonably careful business person, and to sell only enough to pay out the execution and costs. The sheriff is not required to obtain the highest possible price, only to act reasonably.
A purchaser at a sheriff’s sale need not inquire into the correctness of the judgment upon which execution was issued, but must satisfy itself that the issuing court had jurisdiction, that the writ is regular on its face, and that the goods sold belong to the judgment debtor, since the sheriff can only convey the debtor’s own title.
Seizure and Sale of Real Property
For land, additional requirements apply. The sheriff cannot take steps to advertise the property for sale until four months have elapsed after the writ has been filed. Notice of the sale must be mailed to the creditor and debtor at least 30 days before sale, published in the Ontario Gazette at least 30 days before sale and in a newspaper of general circulation once each week for two successive weeks (the last notice no less than one week and no more than three weeks before sale), and posted in a conspicuous place in the sheriff’s office for at least 30 days before sale. The sale notice must include a description of the property, the short title of the proceeding, the time and place of sale, and the name of the debtor.
Where land is held in co-tenancy, the creditor may sell only the debtor’s proportionate interest. Selling the entirety requires a partition application under the Partition Act, and courts have discretion to refuse such an order.
Disputes Over Ownership
Where a third party claims ownership of seized property, the sheriff must pause and notify the creditor. A party disputing ownership may commence an interpleader proceeding under Rule 43, which is a common mechanism for resolving these claims. The court has a wide range of remedies in an interpleader, and where a genuine issue of fact or law is raised, the motion must be heard by a judge rather than a master.
The Creditor’s Obligations
Once the order has been satisfied in full, the creditor must promptly withdraw all writs of execution from all sheriff’s offices where they have been filed. Where any payment has been received by or on behalf of the creditor, the sheriff must be notified forthwith. Failure to withdraw a writ after satisfaction entitles the debtor to move for a court order compelling withdrawal.
The Creditors’ Relief Act and Priority Among Creditors
The Creditors’ Relief Act, 2010 governs the distribution of funds received by the sheriff under enforcement proceedings. Its general rule is that there is no priority among execution creditors and garnishment creditors: a creditor who attaches a debt is deemed to do so for the benefit of all creditors as well as its own benefit. Proceeds are distributed on a pro rata basis among all execution creditors who have registered their writs before the end of the one-month holding period.
There are important exceptions. Support and maintenance orders have priority over all other judgment debts, other than debts owing to the federal Crown, regardless of when an enforcement process is issued or served. The federal and provincial Crowns rank equally with each other and ahead of all other creditors where no support or maintenance order exists. The creditor under whose execution or garnishment the proceeds were realized is entitled to recover the costs of enforcement in priority to other creditors.
Bankruptcy of the judgment debtor has a decisive effect on priority: section 70(1) of the Bankruptcy and Insolvency Act provides that the filing of a bankruptcy petition or the making of a receiving order stays all proceedings against the debtor’s property. Execution creditors who have not received payment from the sheriff before bankruptcy takes effect become only unsecured creditors in the bankruptcy.
Secured creditors under the Personal Property Security Act or the Mortgages Act generally rank ahead of unsecured execution creditors. A judgment creditor has a statutory right under section 18 of the Personal Property Security Act to obtain information from a secured creditor, including the security agreement and the amount outstanding, which is useful in assessing whether enough equity exists in the debtor’s property to justify the cost of enforcement.
Garnishment
Garnishment is the process of attaching debts owed to the judgment debtor by third parties and redirecting those payments to the sheriff for distribution. It is governed by Rule 60.08. The most common targets of garnishment are the debtor’s bank accounts and wages, but any “debt payable” to the debtor may be garnished.
What Can Be Garnished
A “debt payable” includes any liquidated obligation owed to the debtor, whether due immediately or to become due in the future within six years after service of the notice of garnishment. Courts have held that commissions not yet earned but owing under an employment contract, insurance benefits owing under an existing policy, and annuity payments from a structured settlement all qualify as debts payable subject to garnishment.
Certain debts cannot be garnished. A garnishee who is a bank, loan or trust corporation, credit union, or savings office is not obliged to pay funds in accounts opened after the notice of garnishment is served. An employer is not obliged to pay wages arising from employment commencing after service. An insurer is not obliged to pay under policies entered into after service.
A solicitor’s retainer paid by a debtor for specific legal services in pending criminal proceedings is not a “debt payable” to the debtor and is not subject to garnishment. However, funds in a law firm’s trust account that the debtor could withdraw by changing instructions may be garnishable, subject to the court’s equitable discretion.
Joint bank accounts may be garnished. Rule 60.08(1.1) provides that where a debt is payable to the debtor and one or more co-owners, one-half of the indebtedness (or a greater or lesser amount specified by court order) may be garnished. The co-owner may dispute this allocation at a garnishment hearing.
Wages
Section 7 of the Wages Act limits the amount of wages subject to garnishment. Only 20 per cent of a debtor’s net wages may be garnished by an ordinary execution creditor, as 80 per cent is exempt. Where the monetary order is a support order, 50 per cent of wages may be garnished.
The Garnishment Process
To initiate garnishment, the creditor files a requisition for garnishment (Form 60G) and a supporting affidavit with the registrar, who then issues a notice of garnishment (Form 60H) naming the garnishee. A separate notice is required for each debtor-garnishee pair. The notice is served on the debtor and the garnishee, together with a copy of the affidavit and a blank garnishee’s statement. Banks and financial institutions must be served at the branch where the debt is payable, not at head office. If six years or more have elapsed since the order, leave of court must be obtained before a notice of garnishment may be issued.
The garnishee must pay to the sheriff any debt owed to the debtor, up to the amount shown in the notice of garnishment, within ten days after service or ten days after the debt becomes payable, whichever is later. The garnishee may deduct $10 per payment for the administrative cost of making it. Where the garnishee pays a debt attached by the notice to anyone other than the sheriff after service, the garnishee remains personally liable for that debt.
When the amount owing has been paid in full, the creditor must serve a notice of termination of garnishment on the garnishee and the sheriff.
A garnishment hearing is available on motion by any interested party, including the creditor, debtor, garnishee, or co-owner of the debt. At the hearing, the court may determine the rights and liabilities of all parties, vary or suspend periodic payments, and make any other appropriate order. The duty of full and fair disclosure applies to garnishment applications: failure to disclose the source of the creditor’s information and the basis for believing the garnishee owes a debt to the debtor may result in the notice being set aside.
Examination in Aid of Execution
The examination in aid of execution, commonly known as the “judgment debtor examination,” is the most effective tool for discovering the assets, income, and liabilities of a judgment debtor. It is governed by Rule 60.18 and allows the creditor to examine the debtor under oath about all matters relevant to enforcement.
Scope of the Examination
Rule 60.18(2) permits examination on the reason for nonpayment, the debtor’s income and property, debts owed to and by the debtor, disposals of property made before or after the order, present, past, and future means to satisfy the order, whether the debtor intends to comply, and any other matter pertinent to enforcement. The examination can cover assets that existed before the order was made, not only those acquired afterward.
The debtor may be required to answer questions about jointly owned assets, about property in which the debtor has a beneficial interest regardless of who holds legal title, and about property disposed of to third parties. Where the examination discloses concealment of assets or a fraudulent transfer, Rule 60.18(5) permits the court to cite the debtor for contempt and order the debtor to take steps to reverse the transaction.
The creditor may also obtain an order to examine third parties who may have knowledge of the debtor’s assets under Rule 60.18(6). This power may be exercised wherever difficulty arises in the enforcement of the order; the creditor need not exhaust all other means before seeking a third-party examination.
Procedure
An appointment is made at an examiner’s office, and a notice of examination (Form 34A) is prepared identifying the documents the debtor must bring. The notice must be served personally or by an alternative to personal service; service on the debtor’s solicitor of record is not effective.
Non-Attendance and Contempt
If the judgment debtor does not attend the examination, the creditor may move under Rule 34.15 for a court order compelling attendance. If the debtor still fails to attend or fails to answer proper questions pursuant to a court order, a contempt motion may be brought. A contempt finding is the creditor’s primary enforcement mechanism when the debtor defies the examination process. Courts require that contempt be proven beyond a reasonable doubt, that the alleged contemnor be personally before the court or represented by instructed counsel, and that before imprisonment is ordered the contemnor be given a final opportunity to purge the contempt.
Writ of Sequestration
The writ of sequestration is an uncommon but potentially useful enforcement remedy governed by Rule 60.09. It directs the sheriff to take possession of and hold all or part of the judgment debtor’s real and personal property and to collect and hold any income from that property until the debtor complies with the order.
Leave of court is required to obtain a writ of sequestration, and leave will only be granted where the court is satisfied that other enforcement measures are or are likely to be ineffective. Courts have granted sequestration orders against recalcitrant debtors who have refused to comply with orders despite extensive enforcement efforts, including where a contempt finding was not a precondition to the order. A writ of sequestration may be discharged or varied on motion on such terms as are just.
Receiver in Aid of Execution
The appointment of a receiver in aid of execution is an equitable remedy available under Rule 60.02(1)(d) and section 101 of the Courts of Justice Act, which empowers a judge to make such an appointment where it appears “just and convenient to do so.” A receiver stands in the place of the judgment debtor and is authorized to receive money payable to the debtor from third parties, including government employers and federal Crown employees.
The receiver in aid of execution originated in equity as a means of executing on a debtor’s equitable interest that was not available by way of legal execution. Courts have appointed the sheriff as receiver to collect salary or pension payments owing to the debtor from a Crown employer, to manage and receive income from assets, and to receive funds owing from the United Nations Compensation Commission that were payable through the federal government.
A receiver appointment requires a demonstration that the standard enforcement remedies have been or are likely to be ineffective. Courts have declined to appoint a receiver where the creditor seeks a sweeping order against all of the debtor’s assets without establishing specific need, but have granted appointments targeted at particular assets or income streams.
Legislative Devices to Counter Asset Transfers
Debtors who anticipate judgment sometimes transfer assets to family members, related companies, or friends in an attempt to place them beyond a creditor’s reach. Ontario provides several legislative responses.
The Fraudulent Conveyances Act
The Fraudulent Conveyances Act renders void as against creditors any conveyance made with the intent to defeat, hinder, delay, or defraud creditors or others. The Act is remedial legislation and is given a liberal and broad interpretation by courts.
A “conveyance” is broadly defined to include any gift, grant, alienation, bargain, charge, encumbrance, limitation of use, or other dealing with real or personal property, by writing or otherwise. Typical transactions challenged under the Act include the transfer of a matrimonial home between spouses for natural love and affection where the spouses are separated, transfers to trustees, changes of beneficiary designations in life insurance policies and RRSPs, the provision of security interests to creditors, charitable donations made to render the debtor judgment-proof, and billing for personal services through a company to keep income out of the debtor’s name.
The key elements that must be proven on a balance of probabilities are: that a conveyance occurred; that the debtor had a beneficial interest in the property conveyed (not merely a legal interest); and that the debtor’s intent at the time of the transfer was to defeat, hinder, delay, or defraud creditors. It is not necessary to prove an intent to defraud specifically; an intent to hinder or delay is sufficient. Fraudulent intent is inferred from surrounding circumstances and badges of fraud, and courts do not require direct evidence of subjective intent.
A transaction declared void under the Act is void only as against creditors or future creditors of the judgment debtor at the time of the conveyance, not as between the parties to the transaction themselves. Once voided, the creditor may deploy the full arsenal of enforcement measures against the fraudulently conveyed property.
Important limitations apply. A bona fide purchaser for value without notice of the fraudulent conveyance cannot be deprived of the property. A declaration will not be granted where it confers no practical benefit on the plaintiff (for example, where a secured creditor’s claim absorbs all the equity in the property). The debtor must have owned the beneficial interest in the property conveyed; a transfer of mere legal title without a beneficial interest cannot be challenged under the Act.
The Assignments and Preferences Act
The Assignments and Preferences Act addresses preferential payments made to one creditor over others within 60 days of insolvency. Three elements must be proven: the plaintiff was a creditor at the time of the alleged preference; the debtor was insolvent, in insolvent circumstances, unable to pay debts in full, or knew it was on the eve of insolvency; and both the debtor and the recipient had the concurrent intent to create an unjust preference over other creditors. The 60-day period is critical: once it passes, a creditor who extracts payment ahead of others does not commit an unjust preference. A significant limitation of the Act is that payment of money to a creditor is excluded from the definition of a preference, even if made while insolvent. Payment of goods, however, is not excluded and can constitute a preference.
The Bulk Sales Act
The Bulk Sales Act governs the sale of a business’s stock in bulk outside the ordinary course of business and requires compliance with specific procedures designed to ensure that the proceeds of the sale are used to pay the seller’s creditors. A judgment creditor may seek declaratory relief to void a sale in bulk made without compliance with the Act. The court retains discretion to decline to declare the sale void, and the burden of proving compliance is on the party upholding the sale. Proceedings must generally be commenced within six months of the buyer filing certain particulars with the court registrar.
The Business Corporations Act Oppression Remedy
A judgment creditor qualifies as a “complainant” under section 248 of the Business Corporations Act and may bring an oppression remedy application where the corporation’s conduct defeats the creditor’s reasonable expectations. The oppression remedy is an equitable remedy that gives the court broad latitude to fashion any relief it thinks fit.
However, not every corporate conduct that harms a creditor supports an oppression claim. The conduct must fall foul of the reasonable expectations of the complainant having regard to the arrangements existing between the principals. Being an unsecured judgment creditor, without more, and without any misrepresentation, assurance, or undertaking on which the creditor relied, is generally insufficient to establish the necessary reasonable expectation. Where a director or officer has given express assurances or committed fraud on the creditor, courts have been willing to pierce the corporate veil and make the individual personally liable through the oppression remedy.
Declaratory Judgments
The jurisdiction to grant declaratory relief in Ontario rests with judges of the Superior Court of Justice and the Court of Appeal under sections 97 and 108(2) of the Courts of Justice Act. A declaratory judgment confirms or clarifies a right that exists between parties and resolves a real legal difficulty. It is available by way of application under Rule 14.05(3).
Declaratory relief is not available for contingent or speculative disputes, or where the controversy is merely possible or remote. The proceeding must involve a presently existing justiciable issue, not a hypothetical fact situation. To be justiciable, the declaration must confer some tangible benefit on the plaintiff.
Declaratory judgments are commonly used in the enforcement context to obtain a determination of rights under a contract, deed, will, or legislation; to establish priority of interests in land; to establish the extent of a right as against co-owners or other interested parties; or to obtain a declaration that a fraudulent conveyance or other transaction is void as against the creditor.
Injunctions
Ontario courts have jurisdiction under section 101 of the Courts of Justice Act to grant injunctions, both mandatory and prohibitory, where it appears just and convenient to do so. In the enforcement context, injunctions are commonly sought to prevent a judgment debtor from dissipating assets or completing a transaction that would render enforcement futile.
The test for an interlocutory injunction, derived from the Supreme Court of Canada’s decision in RJR-MacDonald Inc. v. Canada (A.G.), requires the moving party to demonstrate: a serious question to be tried after a preliminary assessment of the merits; that the applicant would suffer irreparable harm if the injunction were not granted; and that the balance of convenience favours the granting of the injunction.
Courts may also grant Mareva injunctions (asset-freezing orders) in support of existing or anticipated enforcement proceedings. Such relief is available before or after judgment, though the requirements for pre-judgment relief are more stringent.
Civil Contempt
Civil contempt is the primary mechanism for compelling compliance with non-monetary orders and, where necessary, punishing defiance. Contempt proceedings are governed by Rules 60.05 and 60.11.
The Test for Civil Contempt
Civil contempt requires proof beyond a reasonable doubt of three elements: knowledge of the provisions of the order; breach of the order; and that the breach was willful. The provisions of the order must be clear and unambiguous. It is not necessary that the order be in writing. Specific intent to disobey is not required; willful disregard of the order is sufficient.
What Contempt Cannot Be Used For
A civil contempt order may not be made for non-payment of money, no matter the nature of the order to pay. The Fraudulent Debtors Arrest Repeal Act abolished imprisonment for civil debt. This principle applies to monetary orders of all kinds, including support orders under the Rules of Civil Procedure. However, imprisonment for non-payment of support is preserved under the Family Responsibility and Support Arrears Enforcement Act, 1996.
Available Remedies
Where contempt is established, the court may order imprisonment for a specified period; imprisonment conditional on failure to comply with specific terms; payment of a fine; performance or cessation of a specific act; payment of costs; or any other order the judge considers necessary. Imprisonment is a remedy of last resort and is applied only where other methods of compelling compliance have failed or are clearly unavailing.
Procedure
A contempt proceeding requires proper procedural safeguards because of its quasi-criminal nature. The alleged contemnor must be served with a notice of motion that particularizes the allegations, must have the opportunity to be heard, must be presumed innocent until proven guilty beyond a reasonable doubt, must have the right to make full answer and defence including the right to counsel and to cross-examine witnesses, and must not be compellable as a witness. Except in unusual circumstances, the alleged contemnor should be personally present. Before ordering imprisonment, the court should afford the contemnor a final opportunity to purge the contempt by complying with the order.
A special application of the contempt power arises under Rule 60.18(5), which permits the court to cite a judgment debtor for contempt if, on examination, the debtor is found to have transferred property to defeat the creditor. This provision bridges the examination process and the contempt power and allows the court to order the debtor to reverse the transfer as a condition of purging the contempt.
Enforcing Foreign Judgments in Ontario
Any final and conclusive judgment obtained from a court outside Ontario is a “foreign judgment” for enforcement purposes in this province. This includes judgments from other Canadian provinces and territories, as well as judgments from foreign countries. Each province in Canada is a separate legal jurisdiction, and a judgment from one jurisdiction does not automatically bind assets in another.
The Real and Substantial Connection Test
The governing principle for recognition and enforcement of foreign judgments in Ontario is the real and substantial connection test established by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye and confirmed internationally in Beals v. Saldanha. A foreign judgment will be recognized and enforced in Ontario where the foreign court that granted the judgment had properly assumed jurisdiction over the dispute, meaning there was a real and substantial connection between the events, persons, and circumstances that gave rise to the judgment and the foreign jurisdiction.
The Supreme Court in Yaiguaje v. Chevron Corporation confirmed that in the recognition and enforcement context, the real and substantial connection test operates only to assess whether the foreign court properly assumed jurisdiction. There is no additional requirement of a real and substantial connection between the judgment debtor or the dispute and Ontario as the enforcing forum.
An Ontario court will recognize and enforce a foreign judgment where: the foreign court properly assumed jurisdiction based on a real and substantial connection to the dispute; the judgment is final and conclusive (even if under appeal); the defendant was properly served with process issued by the foreign court; and the substantive or procedural law of the foreign jurisdiction is not objectionable on grounds of Canadian public policy.
Defences to Enforcement
A foreign judgment will not be enforced in Ontario where: it was obtained by fraud; the foreign proceeding failed to observe the principles of natural justice; the defendant was not a party to the foreign suit; or enforcement would be contrary to Canadian public policy. Absent these defences, the enforcing court is not interested in the substantive or procedural law of the foreign jurisdiction.
Non-Monetary Foreign Judgments
Traditionally, only monetary judgments from foreign courts were enforceable in Ontario, since the money obligation was sufficient to execute in the domestic justice system without requiring interpretation of foreign law. In Pro Swing Inc. v. Elta Golf Inc., the Supreme Court of Canada held that non-monetary foreign judgments can in principle be enforced, though caution is required since the Ontario court may need to interpret and apply another jurisdiction’s laws. Factors the court considers include the requirements of comity, the territorial scope of the order, whether the judgment requires interpretation of foreign law, and the burden of enforcement on the Canadian judicial system.
Process for Enforcement
A party seeking to enforce a foreign judgment in Ontario commences an action or application in the Ontario Superior Court of Justice seeking recognition and enforcement. The foreign judgment is the foundation of the claim. Once recognized and reduced to an Ontario judgment, the full enforcement arsenal becomes available.
Practical Considerations for Judgment Creditors
Enforcing a judgment requires active management and timely action. Several practical points deserve emphasis.
Act promptly. Issue and file the writ of seizure and sale immediately after the order is entered. The writ binds the debtor’s lands in the sheriff’s bailiwick from the moment it is filed, and delay allows the debtor time to dispose of or transfer assets.
Conduct an examination in aid of execution early. The examination is the most important investigative tool available. It discloses not only current assets but also past dispositions that may ground a fraudulent conveyances claim. Bring the debtor and, where appropriate, third parties with knowledge of the debtor’s affairs.
Monitor the debtor. Debtors move from one judicial region to another, and writs filed in one region do not bind property in another. Track the debtor’s movements and register writs in new regions as the debtor acquires property there.
Renew the writ before it expires. A writ expires after six years without renewal. Renewal requires only the filing of a request with the sheriff. Letting a writ expire through inadvertence forces the creditor to seek an alias writ, which requires a court motion.
Consider garnishment as a parallel strategy. Garnishment of the debtor’s bank accounts, wages, or receivables can produce faster results than waiting for a sheriff’s sale of real property. Serve garnishments on multiple financial institutions simultaneously.
Search for beneficial interests. Debtors often hold assets through nominees, family members, or related companies. The examination process and the Fraudulent Conveyances Act are the primary tools for piercing these arrangements.
Consider the Creditors’ Relief Act when prioritizing. If other creditors are also in enforcement mode, the pro rata distribution rules under the Creditors’ Relief Act affect how much each creditor receives from the sheriff. Acting first may not mean collecting first. Understanding the Act’s priority rules allows the creditor to make informed decisions about the sequence and timing of enforcement steps.
Assess secured creditor positions before directing the sheriff to sell real property. The sheriff can only convey the debtor’s interest, subject to existing encumbrances. A sale of property heavily mortgaged to a secured creditor may yield nothing for the execution creditor after paying out the mortgage, while exposing the creditor to the sheriff’s costs and fees.
Obtaining a judgment is only the first step. Whether you are seeking to recover on an unsatisfied judgment, investigating hidden assets, pursuing a fraudulent conveyances claim, or seeking to enforce a foreign judgment in Ontario, our commercial litigation practice advises judgment creditors on all aspects of the enforcement process. Contact Grigoras Law to discuss your situation.
Conclusion
Enforcing a judgment in Ontario is a multi-step process that demands attention to procedural detail, timely action, and strategic sequencing of remedies. The writ of seizure and sale, garnishment, and examination in aid of execution are the workhorses of the process. The fraudulent conveyances legislation, the oppression remedy, and the civil contempt power are the tools available when debtors attempt to put their assets beyond reach.
No single enforcement tool works in isolation. The most effective approach combines several of these mechanisms simultaneously, while using the examination process to identify where assets are, understand how they are held, and determine what legislative devices are available to recover them. A creditor who understands the full range of tools available and applies them with discipline and persistence will significantly improve the prospects of collecting on a judgment that might otherwise go unsatisfied.
