Yes, an Ontario Superior Court judge can issue an interim order to sell a marital asset and pay off a crippling joint debt before the final trial. If high-interest joint credit cards are destroying both spouses’ credit scores, the court will often force early liquidation to preserve the family’s overall financial health.
Getting a divorce in Ontario is rarely a quick process. Resolving property division, spousal support, and parenting time can easily take a year or more. 🗓 However, high-interest joint debt does not politely wait for a final separation agreement. If you and your ex-partner share a joint credit card with a $30,000 balance at 20% interest, the monthly minimum payments can become impossible to manage while funding two separate households.
When one spouse stops paying their share of a joint debt, both credit scores are severely damaged. To stop this financial bleeding, Ontario’s Family Law Rules allow a judge to intervene early. Through a process called an ‘interim motion’, the court can force the early sale of a family asset-such as a second property or the marital home-specifically to wipe out toxic debt before the final Net Family Property equalization is calculated.
Step-by-Step Process for Filing an Interim Debt Motion in Ontario
Navigating the Superior Court of Justice for an interim motion is highly procedural. It is strongly advised to hire a family lawyer from our directory to draft the complex motion materials required. 💼
Step 1: Complete Your Financial Disclosure (Form 13.1)
Before a judge will order the sale of an asset, both spouses must provide complete financial transparency. You must file a Form 13.1 Financial Statement. This sworn document lists all your income, expenses, assets, and liabilities, proving to the court that the joint debt is causing immediate financial hardship.
Step 2: Identify the Threat to the Family’s Finances
Your lawyer must build a case proving that waiting for a final trial will result in severe financial prejudice. 🔔 For example, you must show that the compounding 20% interest on the joint credit card is rapidly depleting the family’s net worth, or that the missed payments are preventing you from securing a mortgage for a new home.
Step 3: Request a Voluntary Early Payout
Courts expect parties to attempt to resolve issues privately. Your lawyer will send a formal request to your ex-spouse’s lawyer, proposing to sell an asset (like a joint mutual fund or a cottage) and use the proceeds to retire the joint debt. If they refuse unreasonably, this refusal can be used against them in court.
Step 4: File a Notice of Motion (Form 14)
If the other spouse refuses, your lawyer will file a Notice of Motion for an Interim Order at the Superior Court of Justice. ⚖ This motion will specifically ask the judge to order the sale of a specific asset, with a strict direction that the funds be used solely to pay off the identified high-interest joint liabilities.
Step 5: Attend the Motion Hearing
Both lawyers will appear before a judge (often via Zoom in Ontario). Your lawyer will argue that paying the debt early is an ‘advance on equalization’ and is necessary to preserve the family’s wealth. The judge will balance the need to stop the financial bleeding against the other spouse’s right to hold the asset.
Step 6: Execute the Order and Hold the Remainder in Trust
If the judge grants the order, the asset is sold. The joint debt is paid directly to the creditors (e.g., the bank or credit card company). 💰 Any remaining funds from the sale are not distributed to the spouses; instead, they are held in trust by one of the law firms until the final separation agreement is finalized.
How Much Does an Interim Motion Cost in Ontario?
Filing an interim motion requires upfront capital, but it often saves tens of thousands of dollars in compounding interest.
- Court Filing Fees: Under Ontario’s family court fee regulation (O. Reg. 417/95), there is no court filing fee ($0 CAD) for filing a Notice of Motion (Form 14) at first instance.
- Lawyer Fees: Drafting the motion materials, swearing affidavits, and attending the hearing usually costs between $3,500 and $7,500 CAD.
- Cost Awards: If your spouse unreasonably opposed the motion, the judge may order them to pay a portion of your legal fees.
How Long Does the Process Take?
An interim motion is designed to be faster than a full trial, but it is not instantaneous. Obtaining a court date for an interim motion in busy jurisdictions like Toronto or Brampton can take 2 to 4 months. If the situation is a true emergency (e.g., the bank is initiating foreclosure proceedings), your lawyer can file an ‘urgent motion’ to be heard in a matter of days.
Types of Debt Addressed in Interim Motions
| Joint Credit Cards | Very High (20%+ Interest) | High likelihood of court intervention. |
| Tax Arrears (CRA) | High (Garnishment Risk) | High likelihood to protect assets from seizure. |
| Lines of Credit (HELOC) | Medium (Prime + Interest) | Moderate, often resolved by selling the home. |
Frequently Asked Questions (FAQ)
Will paying the debt early affect my final equalization?
No. Paying off a joint debt early is simply treated as an advance. During the final Net Family Property calculation, the spreadsheets will be adjusted to ensure both spouses contributed exactly 50% to the marital debt.
Can I just stop paying my half of the joint card?
You can, but it is highly destructive. The bank views joint debt as 100% your responsibility. If payments stop, your personal credit score will plummet, making it incredibly difficult to rent an apartment or get a new mortgage.
What if the debt is in their name, but it was for family expenses?
If a sole credit card was used for family expenses (like groceries or vacations), it will still be factored into the overall property division. However, forcing an early payout on a sole debt via an interim motion is much harder to achieve.
Can the court force me to drain my RRSP to pay joint debt?
Courts are very reluctant to order the liquidation of an RRSP because it triggers massive immediate tax penalties. Judges strongly prefer ordering the sale of non-registered assets, a secondary vehicle, or the marital home.
Leave a Reply