Under the Canadian Bankruptcy and Insolvency Act, an abusive ex cannot discharge a civil court damage award arising from intentionally inflicted bodily harm or sexual assault. If you won a lawsuit at the Superior Court of Justice, their debt to you survives their bankruptcy, and you can continue to enforce the judgment using a Writ of Seizure and Sale (costing $77 CAD to issue in the Superior Court of Justice, plus a $100 CAD filing fee to register it with the Sheriff, or $68 CAD if enforced through Small Claims Court).
Securing a civil judgment against an abusive former partner is a massive victory for survivors of family violence. When the court orders your abuser to pay damages for assault or battery, it represents both financial compensation and vindication. 💰 However, a common retaliation tactic used by abusers is to immediately file for bankruptcy, hoping to wipe the financial slate clean and leave the victim with nothing.
Fortunately, Canadian federal law explicitly protects survivors from this loophole. Under Section 178(1) of the Bankruptcy and Insolvency Act (BIA), certain debts are entirely exempt from being discharged. 📝 If your financial award stems from intentional bodily harm, sexual assault, or wrongful death, the bankruptcy system will not forgive the debt, ensuring the abuser remains permanently financially accountable for their violence.
Step-by-Step Process for Protecting Your Damage Award in Ontario
Whether your civil trial took place in Ottawa, Toronto, or Sudbury, bankruptcy is governed by federal law, making the rules consistent nationwide. You must actively participate in the bankruptcy proceedings to ensure the trustee recognizes your specific debt exemption. 📊 Retaining a law firm that specializes in both family violence and debtor-creditor law is highly advised.
Step 1: Obtain a Clear Civil Judgment
Your protection starts at the Superior Court of Justice. When winning your civil lawsuit, the judge’s order must clearly state that the damages are awarded for the intentional torts of assault, battery, or sexual assault. ✍️ A vague judgment that just says “damages” can be heavily contested by the bankruptcy trustee.
Step 2: Monitor for the Notice of Bankruptcy
If your ex files for bankruptcy or a consumer proposal, you will be listed as a creditor. You will receive an official notice in the mail from their Licensed Insolvency Trustee (LIT). 📬 Do not ignore this document; it triggers strict timelines for you to register your claim against their remaining assets.
Step 3: File a Proof of Claim
You must fill out and submit a Proof of Claim form to the LIT, detailing exactly how much the abuser owes you based on the court order. Attach a certified copy of the Superior Court judgment. 📄 This ensures you are legally recognized in the bankruptcy proceedings and may receive a dividend if their assets are liquidated.
Step 4: Notify the Trustee of the Section 178 Exemption
Write a formal letter to the LIT expressly pointing out that your debt falls under Section 178(1)(a.1) of the Bankruptcy and Insolvency Act. This puts the trustee on notice that your civil award is for intentionally inflicted bodily harm and cannot be discharged when the bankruptcy finishes. 🚨
Step 5: Resume Enforcement Post-Bankruptcy
While the abuser is actively bankrupt, there is an automatic stay of proceedings preventing most collections. However, because your debt survives, once the abuser is officially discharged from bankruptcy, you can immediately resume aggressive enforcement actions like wage garnishment and seizing property. ⚖️ In some cases, your lawyer can ask the court to lift the stay early.
How Much Does it Cost in Ontario?
Enforcing a surviving judgment requires navigating the civil enforcement system, which comes with ongoing administrative costs. You can often add these legal and enforcement fees to the total debt owed by the abuser. 💵
- Filing a Proof of Claim: $0 CAD. It is free to submit this form to the Licensed Insolvency Trustee.
- Writ of Seizure and Sale: In the Superior Court of Justice, the fee is $77 CAD to issue the writ (Form 60A) plus a $100 CAD fee to register it with the Sheriff (via WritFiling). In Small Claims Court, issuing the writ (Form 20C) costs $68 CAD.
- Notice of Garnishment: $155 CAD to issue in the Superior Court of Justice (Form 60H) or $144 CAD in the Small Claims Court (Form 20E), allowing you to intercept their paycheque.
- Lawyer Fees: Having a lawyer challenge a bankruptcy discharge or handle complex enforcement typically costs $2,000 to $5,000+ CAD.
| Type of Debt | Does it Survive Bankruptcy in Canada? | Governing Law |
|---|---|---|
| Standard Civil Lawsuit (e.g., breach of contract) | No, it is discharged | Bankruptcy and Insolvency Act |
| Spousal / Child Support Arrears | Yes, it survives forever | Section 178(1)(c) BIA |
| Damages for Intentional Bodily Harm | Yes, it survives forever | Section 178(1)(a.1) BIA |
How Long Does the Process Take?
The time you spend waiting heavily depends on the abuser’s bankruptcy status. A standard first-time bankruptcy in Canada lasts 9 to 21 months before the individual is discharged. ⏳ During this time, your collection efforts are usually paused. However, because the debt for family violence is permanent, you have years-and sometimes decades-to collect the money once they begin working or acquire assets again.
Frequently Asked Questions (FAQ)
Does this exemption apply if they were never convicted of a crime?
Yes. You do not need a criminal conviction for this bankruptcy exemption to apply. You only need a civil court judgment from a judge confirming that damages were awarded specifically for intentional bodily harm or sexual assault.
What about emotional distress or psychological harm?
The BIA specifically cites “bodily harm.” If your damage award was purely for emotional distress without any physical violence or sexual assault, the abuser might attempt to discharge it. A skilled lawyer must carefully draft the initial civil claim to ensure the bodily harm element is cemented.
Can they wipe out spousal support by filing for bankruptcy?
Absolutely not. Under a different subsection of the same law (Section 178(1)(c)), any debt for alimony, spousal support, or child support completely survives bankruptcy and cannot be erased under any circumstances.
What if they file a Consumer Proposal instead of bankruptcy?
The Section 178 exemptions apply equally to Consumer Proposals. The abuser cannot force you to accept a lower payout for an intentional bodily harm judgment through a proposal unless you explicitly agree to it in writing.
How do I collect the money after the bankruptcy is over?
Once discharged, you can resume normal civil enforcement mechanisms. You can garnish their wages, freeze their bank accounts, or place a lien on any new real estate they purchase using the Ontario enforcement system.
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