1. Enforcement of Orders in the Family Jurisdiction
The Law Association of Trinidad and Tobago in collaboration with the Trinidad and Tobago Family Law Association

2. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Presented by Lynette Seebaran-Suite
7th February 2019

3. List of Tools For Enforcement of Family Orders
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
List of Tools For Enforcement of Family Orders
Judgement Summons
Attachment of Earnings
Summons for Sale
Garnishee Orders
Oral Examination
Writ of Possession
Writ of Fieri Facias (FiFa)
Sequestration
Writ of Delivery
Receivership
Warrant of Arrest
Committal for Contempt

4. The Family Proceedings Rules 1998 (as of June 2003)
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Relevant Instruments
The Family Proceedings Rules 1998 (as of June 2003)
Debtors Act Chapter 8:07
Rules of the Supreme Court 1975
Matrimonial Proceedings and Property Act Chapter 45:51
Matrimonial Causes Rules

5. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Orders that may be enforced by Judgement Summons
Maintenance pending suit and periodical payments orders
Lump sum orders
Payment of school fees etc. direct to the school
Undertakings which are an indivisible and integral part of the order, such as medical and educational expenses

6. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
In the Family Court
Part 38 of the Family Proceedings Rules 1998 deals with enforcement of orders for financial relief
Part 38 (2) provides that before any step is taken to enforce, the applicant shall file an affidavit showing how the sum due is calculated
Part 38 (3) provides that enforcement must be under the Rules of the Supreme Court 1975 or under the Debtors Act Chapter 8.07

7. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Provisions of the Debtors Act Chap 8:07
The basic provision as set out in Section 3 (1) is that no person shall be arrested or imprisoned for making default in payment of a sum of money except under this Act.

8. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Provisions of the Debtors Act Chap 8:07
Under Section 5 (1) any civil court may commit to the Port of Spain prison for a term not exceeding six weeks or until payment of the sum due, but only if it is proved to the satisfaction of the Court that the person making default has, or has had since the date of the order, the means to pay the sum in respect of which he has made default and has refused or neglected to pay
This means that the burden of proof is on the judgment creditor

9. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Provisions of the Debtors Act Chap 8:07
Under Sec 5 (1) proof of means may be given as the Court thinks just
It may be examination on oath of the debtor and witnesses
It may be by affidavit and here the Affidavit of Financial Evidence (Form 8 or 9) is the most useful way as a starting point

10. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Provisions of the Debtors Act Chap 8:07
The procedure is set out in more detail in the Debtors Rules promulgated along with the Act.
Under the Debtors Rules
Rule 2: There must be personal service
Rule 3: There must be an affidavit stating the Order and the amount owing

11. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Provisions of the Debtors Act Chap 8:07
Rule 6: The J.S must be issued at least 14 days and served not less than 7 clear days before the date of hearing
Rule 7: Conduct money must be paid and an affidavit filed to this effect

12. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Provisions of the Debtors Act Chap 8:07
Rule 8: Personal service may be waived if a person is evading service
Rule 18:
The Judge has a discretion whether to make an order of commitment
A new order for payment of the arrears may be made

13. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
The Matrimonial Proceedings and Property Act Chap 45:51 is the substantive law applicable in the Family Court
Sec 32 provides that a person shall not be entitled to enforce payment of any arrears without leave if the arrears become due more than 12 months before the proceedings to enforce begin

14. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
On an application to enforce arrears of more than one year, the Court may remit payment of the arrears or any part thereof
Case law establishes that there must be good reason for the delay and evidence that the J.C. has not appeared to abandon the claim

15. Judgement Summons Fees are fixed under Rule 28 of the Debtors Rules
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Costs on J.S.
Fees are fixed under Rule 28 of the Debtors Rules
Under Rule 29, the granting of costs and taxation for Attorneys’ fees is in the Judge’s discretion, and the allowances may be increased by special order

16. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
J.S.’s in San Fernando and Tobago are also governed by Sec 32 of the Act and Rules 64 – 67 of the Matrimonial Causes Rules apply, as opposed to the FPR
However, the procedure and time frames are almost the same

17. Judgement Summons Problems Too costly and time consuming
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Judgement Summons
Problems
Too costly and time consuming
The burden is on the J.C. to prove the means of the J.D.
Usually better to have a liquidated sum to cover all expenses rather than reimbursement after the fact

18. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Summons for Sale
This is governed by the Remedies of Creditors Act Chapter 8:09
Sec 5; A money judgment operates as a charge on land of the J.D.
Sec 7 – 8; Judgements must be registered and that allows J.C.s to have priority but not over mortgagees such as banks

19. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Summons for Sale
Registration of judgements lasts 3 years in the first instance and may be re-registered
Application is by Form 12 for an order for sale
There must be a report on title by Counsel
There is usually a valuation ordered to set an upset price
Sale may be by private treaty or by auction by Marshall
Summons for sale may issue against property which is jointly owned

20. Summons for Sale Problems
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Summons for Sale
Problems
Not useful in enforcing an order for periodical payments
Costly and time consuming

21. Attachment of Earnings
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Attachment of Earnings
Attachment of Earnings is governed by the Attachment of Earnings (Maintenance) Act Chap 45:52
Applies only to maintenance orders

22. Attachment of Earnings
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Attachment of Earnings
Before the Application can be filed the J.C. has to attend before the Registrar with his/her Attorney
The employer must be served and must attend to give evidence as to the salary of the J.D.
Attachment can be applied for from inception or when arrears accrue

23. Attachment of Earnings
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Attachment of Earnings
The order for attachment is against the employer so it lapses on a change or loss of employment
The J.D. has an obligation to inform the Court if he leaves employment and when he is re-employed, on pain of criminal penalty
The Court may make an Attachment Order on a J.S. or a Summons for Sale

24. Attachment of Earnings
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Attachment of Earnings
The Court must fix
The normal deduction rate (after deducting income tax and NIS)
The protected earnings rate
The debtor has to notify the Court of changes in earnings and employment on pain of criminal penalty

25. Attachment of Earnings
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Attachment of Earnings
Problems
Overly technical and time consuming
Best applied for from inception where the J.D. is a bad pay

26. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Extension of Warrants of Arrest for Non-Payment of Maintenance for Minors
Sections 27 and 28 of the Family Law (Guardianship of Minors, Domicile and Maintenance) Act Chap 46:08 (Family Law Act), provide for enforcement of Magistrate’s Court orders for maintenance of minors to be enforced by the issuance of a warrant of arrest

27. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Extension of Warrants of Arrest for Non-Payment of Maintenance for Minors
The imprisonment may be for a period of up to 3 months;
Upon execution of the warrant, the J.D. must be brought before the Magistrate but the J.C. is not informed of the fixture
The Magistrate must make enquiries in the presence of the defendant as to whether the refusal to pay was willful or culpable and if the Magistrate decides otherwise, the warrant will not issue

28. Problems with Warrants Difficulty in getting the warrant served
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Problems with Warrants
Difficulty in getting the warrant served
When warrant is executed there is no process to inform the J.C. of the fixture so the Magistrate has no means of testing whether or not the J.D. is culpable

29. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Extension of Warrants of Arrest for Non-Payment of Maintenance for Minors
The Family and Children Division Act No. 6 of 2016 was assented to on 5th July 2016
Sec 11 of the Act provides that a Judge or Master shall have all the powers exercisable by a Magistrate in family matters including the power of committal and the power to hear an application to issue and enforce a Protection Order

30. Sec 11 of Family and Children Division Act
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Sec 11 of Family and Children Division Act
When sitting in the Family Court, a Judge or Master shall, in addition to the powers conferred under the Supreme Court of Judicature Act, have all the powers exercisable by a Magistrate in family matters under –
The Summary Courts Act; and
Any other legislation,
continued

31. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Sec 11 of Family and Children Division Act Including the power to (c) Hear and determine matters related to default in the payment of maintenance when such payment was ordered by a Court, including ordering the committal of a person who has defaulted; (d) Hear an application for and issue and enforce a Protection Order under the Domestic Violence Act; (e) Grant any other relief as is applicable in the circumstances

32. Sec 15 deals with Enforcement of Certain Orders
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Sec 15 deals with Enforcement of Certain Orders
Sec 15 (1) Where an order for maintenance is issued by a Family Court Judge or a Family Court Master under the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, the Order may be enforced as if it were a Maintenance Order to which the Matrimonial Proceedings and Property Act applies and shall be a Maintenance Order within the meaning of the Maintenance Orders (Facilities for Enforcement) Act.
continued

33. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Section 15 of Family and Children Division Act Sec 15 (2) Where an order is made by a Family Court Judge or a Family Court Master under the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, the provisions of sections 26 and 27 of the Act shall apply as if the Order were made by a Magistrate under that Act

34. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Extension of Warrants of Arrest for Non-Payment of Maintenance for Minors
Sec 12 of the Family and Children Division Act provides that the Chief Justice shall assign Masters to the Family Court (former Magistrates)
Sec 13
Family Court Masters shall exercise all the powers and jurisdiction of a Judge as conferred on Masters under the Supreme Court of Judicature Act

35. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Extension of Warrants of Arrest for Non-Payment of Maintenance for Minors
Sections 11 & 15 were brought into force by Legal Notice 23 of 2018 on the 26th February 2018
Sec 15 (2) provides that Sections 26 and 27, of the Family Law Act (the sections which confer the power to issue warrants for arrest) shall now be able to be exercised by a Family Court Judge or a Family Court Master
However, there is a lacuna created, as the power to issue a warrant does not appear to extend to maintenance orders under the M.P.P.A

36. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Family Court Masters
Family Proceedings (Amendment) Rules 2018 came into force by Legal Notice No. 21 of 2018
Creates a New Rule 2.4A for which the rubric “Powers, Authority and Jurisdiction of Masters”
The new Rule 2.4A confers on Family Court Masters all the powers exercised by Magistrates in the various family jurisdictions mainly Summary Courts Act, Family Law Act and Domestic Violence Act
The new Rule 2.4A excludes from the Family Court Master the following jurisdiction, habeas corpus, injunctions, judicial review & committal

37. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Court Pay
Not strictly an enforcement measure but rather a process using modern electronic means for payment of maintenance
For the convenience of both payor and payee

38. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Court Pay
The Payments into Court Act No. 9 of 2018 came into effect on 10th May 2018
Sec 5; Creates Custodial Bank Accounts to be held in the name of the Judiciary to facilitate receipt and payment of maintenance
Sec 9; Payments may be paid into these Custodial Bank Accounts electronically by payors

39. Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Court Pay
Payments out are made to the recipient electronically as well
Both payor and payee have to register
For persons who do not have bank accounts or cannot open bank accounts there are options as follows
use of ttconnect kiosk
lottery booth
top up card

40. Court Pay Fees vary on either side from $1.00 to $3.00
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
Court Pay
Fees vary on either side from $1.00 to $3.00
A Practice Guide dated 9th March 2018 and a Practice Direction have been issued in relation to Court Pay which have provided a sample maintenance order

41. Thank you for your attention
Issues and Recent Developments in Enforcement of Family Jurisdiction Orders
The End
Thank you for your attention