Show Me the Money: Costs Enforcement in Family Law
Following a family law trial, a lawyer has the opportunity to make submissions with respect to costs. A costs award is a court order for one party to pay the other party a prescribed amount of money, usually to account for a portion of the expenses of litigation. The Supreme Court of Canada summarized the applicability of costs as follows:
The long-standing rule regarding costs is that they are generally awarded to a successful party, absent misconduct on his or her part. A successful litigant has a reasonable expectation that his or her costs will be paid by the unsuccessful party.[1]
As a general rule, costs in a family law matter should not be treated any differently than costs in any other type of litigation. The potential of a costs award can promote reasonableness and serve as a deterrence for bad behaviour by the parties. However, there may be fewer costs awards in family matters because it is not always clear which party was more or less successful than the other.
In the event that costs have been awarded, the next obvious step is collection. But what if the other party isn’t willing to pay? Luckily, there is a convoluted process (the “enforcement process”) available for litigants to enforce (collect) their Judgment. The party that is owed money pursuant to the costs award is often referred to as a creditor while the party owing the money is the debtor.
The enforcement process is conducted through the Court of King’s Bench (“Queen’s Bench”). If the costs award is from Provincial Court, the Certificate of Judgment must be filed with Queen’s Bench before proceeding with enforcement.
Once the Judgment is filed, the next step is to prepare a Writ of Enforcement (“Writ”). This document will also need be filed and it effectively indicates that the other party is refusing to pay the costs award made against them. There should be at least 4 copies of the Writ stamped by a clerk at Queen’s Bench.
One copy of the filed Writ should be registered with the Personal Property Registry (“PPR”). It will serve as official notice that you have a Court Judgment against the other party and establishes your claim to the other party’s assets. A status report must be registered at the PPR when any payment is made toward the amount owing. It is important to note that the registration must be renewed every two years.
Another copy of the Writ should be registered at the Land Titles office (“Land Titles”). This serves official notice in the same way it does at the PPR. However, it is a more effective way to collect because the other party cannot sell the land until the debt is paid in full. Registration of the Writ at Land Titles is in effect for 6 years after the costs award is made. The registration against the title should be removed once the debt is paid in full.
Lastly, the litigant can pursue garnishment to enforce the costs award. Garnishment is a process whereby money that is owed to the debtor is diverted to satisfy the amount owing to the creditor. To pursue this option, a Garnishee Summons must be served on the other party’s bank or employer to notify them that the creditor is entitled to a certain amount of money. This is effective because the bank must then pay the amount of all Writs from the account into Court. Similarly, an employer must divert a certain portion of the debtor’s pay into Court. Once funds are paid into Court, it will be distributed to the creditor(s).
All of the paperwork for the enforcement process is available on the Alberta Courts website. However, if you are looking for direction or assistance in enforcing your judgment, the lawyers at Vogel LLP are here to help!
[1] B. (R.) v Children’s Aid Society of Metropolitan Toronto [1995], 1 SCR 315 at para 155.