Anyone who has ever had any dealings with the law knows the old adage: “A paper judgment is not worth the paper it is written on”. Indeed, no amount of judicial paper or pronouncements of the Court will ever be a substitute for the actual delivery of monies and compensation. As any competent lawyer will tell you, the first question is, “if there is a cause of action, where at the end of the often long and expensive road is the reward?
The usual vagaries and risks associated with litigation, and the sometimes “iffy” prospect of collecting a judgment or enforcing an award, are amplified when the assets of the defendant or judgment-debtor are outside of the jurisdiction. The path to collection and enforcement is thus sometimes doubled or tripled in difficulty, owing to the inter-jurisdictional and international law aspects that have to be brought to bear to enforce a judgment. With the introduction of the Inter-Jurisdictional Support Orders Act (“Act”), an Ontario law which came into force in 2002, the prospect for enforcing child and spousal support awards has been vastly improved.
The Act provides for both orders and judgments granted in Ontario to be enforced in outside reciprocating jurisdictions, as well as for enforcing in Ontario, orders and judgments made in these reciprocating jurisdictions. Part III of the Act deals specifically with the enforcement of orders made in reciprocating jurisdictions within, and outside of, Canada in respect of support orders, temporary support orders and orders varying support. The enforcement provisions of the Act require that the claimant or the appropriate authority of the reciprocating jurisdiction deliver a certified copy of the order or judgement to the designated authority, in Ontario the Family Responsibility Office, together with information and circumstances regarding the judgement debtor who is resident in Ontario. In turn, the Family Responsibility Office forwards this information to the Clerk of the Ontario Court closest to where the judgement debtor is believed to reside.
The Clerk of the Ontario Court then registers the order or judgement as if it were an order of the Ontario Court, with the legal effect and enforceability as if it had been made in Ontario. The judgement debtor will be given notice of the registration and may, within 30 days, bring a motion before the Ontario Court to have the judgement set aside. The Court may set aside the registration only if it determines that, in the proceeding where the order was originally made, there was no notice or reasonable opportunity to be heard, if it is contrary to public policy or if the original Court did not have jurisdiction to make the order.
It is important to keep in mind that the registering Court and the designated authority can only do as well as the information provided. In other words, the foreign order has to be translated, if it is from a non-English speaking jurisdiction. It also has to be certified with respect to its status. That is, it should be clear on the evidence that the judgment is still valid and that it has not been appealed or overturned.
The Act is extremely useful in the family law, spousal and child support areas. However, it does not apply to commercial judgments. Generally, Canadian Courts will enforce foreign judgments along the lines that are set out in the Act. The Courts will consider the procedural basis, the jurisdictional basis as well as the public policy elements in determining whether to accept registration and enforcement of a foreign judgment. This is done by commencing an action in Ontario, setting out the facts upon which the foreign judgment was obtained and then asking the Court to register the Judgment and to issue it in Ontario. Of course, the defendant has at its disposal all of the procedural and legal defences that are ordinarily available to any defendant in Ontario.
It is suggested that, in this age of increased international trade and contractual transactions, Ontario ought to consider an inter-jurisdictional enforcement of foreign judgments in the commercial field, similar to the Inter-Jurisdictional Support Orders Act.
Tibor Sarai is able to assist his clients in French, German and Hungarian.