After An Order Awards Money Following a Court Case, How Does the Winner Ensure Payment?
Enforcement Procedures Such As Issuing and Executing of Writs or Various Garnishment Methods May Be Used to Ensure Payment of Money Awarded Within a Court Order.
Understanding the Processes Available For Enforcing Monetary Judgment Including Use of Writs and Garnishment Processes
During the litigative phase of a legal case, the goal is to obtain an Order that contains an assessment of, and award of, monies due; however, once the authoritative Order is in place to confirm, and to instruct, the payment of monies due, actually getting paid and getting the money into hand becomes the next phase of procedures.
Judgment Enforcement Processes
Generally, at the end of every litigative process involving money, someone is deemed within an Order as the winner who becomes known as the Judgment Creditor and who is owed money, and someone is deemed the loser who becomes known as the Judgment Debtor who owes the money. Of course, the Order simply states who owes who and how much.
Unless the Judgment Debtor promptly makes payment, which sometimes does happen, actually getting paid the money owing as stated within the Order may require enforcement processes such as garnishment of wages, garnishment of accounts, garnishment of creditors, issuance and execution of Writs, among other efforts.
How Can One of Our Paralegals Help?
A Civil Litigations Paralegal Services can prepare the correct forms, issue with the court, serve all judgment enforcement forms, and you represent you at any judgment enforcement hearing through the Small Claims Court.
Various Enforcement Options
The following is only an introductory overview of the judgment enforcement options available and is unintended as the complete information you need to know if you choose to represent yourself. There have been numerous books written on the art of judgment recovery. A few such books and online resources are recommended at the bottom of this page.
Be fully aware that judgment recovery, meaning getting paid an award, is an art form. Complicated enforcement cases require skill, knowledge, and experience, for the successful collection of judgments.
What Judgments Can Be Collected Through the Small Claims Court?
The Small Claims Court has the jurisdiction to enforce any judgment of a Small Claims Court within Ontario. The Small Claims Court may also be used to enforce judgments issued by other tribunals, regulatory boards, or other courts, provided that the principal amount of the judgment is within the monetary jurisdiction (currently thirty-five thousand ($35,000.00) dollars) of the Small Claims Court. Examples of other judgments that can be collected though the Small Claims Court include judgments made under the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, at the Landlord and Tenant Board, under the Employment Standards Act, 2000, S.O. 2000, Chapter 41, judgments of other tribunals or boards pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and money judgments made under certain sections of the Criminal Code of Canada, R.S.C. 1985, c. C-46. As per the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5, judgments from other provinces or territories of Canada may also be collected through the Small Claims Court here in Ontario.
Does a Judgment Expire?
If a judgment was obtained from an Ontario court or tribunal, on or after January 1, 2004, then as per section 16(1)(b) of the Limitations Act, 2002, S.O. 2002, Chapter 24, Schedule B, the judgment remains active in perpetuity without an expiry. With this said, some judgment enforcement procedures require an Order, as the permission from a judge, allowing enforcement of a judgment that is more than six (6) years-old. There may also be a court fee to obtain documents, including copy of an Order, from an old court file stored within off-site archives of the Small Claims Court. Furthermore, a judgment may be set aside, be stayed pending an Appeal, or be stayed if a filing is made under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, by the judgment debtor.
Is the Current Address of the judgment Debtor Required?
To move forward with enforcement of a judgment, a current address for the judgment debtor is required for the commencement of enforcement proceedings. Additionally, some enforcement proceedings require transfer of the judgment to the Small Claims Court within the jurisdiction where the judgment debtor currently lives or operates a business. To assist in obtaining the current address details for a judgment debtor, Civil Litigations Paralegal Services uses skip tracers and other methods to help locate the judgment debtor.
Can All Judgments Be Collected?
If the judgment debtor lacks assets and is without a reliable source of income, then collecting upon a judgment may be difficult or even impossible.
What Is the Best Method For Collecting a Judgment?
The best method for enforcing a judgment varies from case to case and may be largely dependant on what information is available about the judgment debtor including the assets of the judgment debtor. How much time and money a creditor is willing to expend in collecting is also a significant consideration.
What Is the Best Method to Collect a Judgment?
What is a Writ of Seizure and Sale of Lands?
The process involving a Writ of Seizure and Sale of Lands acts like a lien against real estate owned by the debtor in the jurisdiction in which it is filed with the sheriff. Such a Writ prevents judgment debtor from selling the property or obtaining a mortgage from a new lender without paying off the judgment in full with interest.
Prior to filing for a Writ of Seizure and Sale of Land, searches to confirm that property is actually owned by the judgment debtor should be performed. A search should also be used to confirm that the name of the owner of the property matches the name upon the judgment. Searches can be done to locate real estate registered in the name of the debtor anywhere within Ontario. To do a real estate search, the birthdate of the judgment debtor will be required. Additionally, if the name of the judgment debtor is a common name, then further searches may be required to confirm that the judgment debtor and the property owner are indeed one-and-the-same person.
What is referred to here as a lien is actually an execution, per the Executions Act, R.S.O. 1990, c. E.24, that is filed against the name of the judgment debtor within the jurisdiction where the judgment debtor is believed to own property. The execution applies to the person rather than applying to the title of property; and accordingly, if the judgment debtor owns multiple properties within the jurisdiction in which the Writ is filed, then the Writ of Seizure and Sale of Lands acts as a lien against all those properties.
If the judgment debtor owns property within different cities or towns, then the issuance of multiple Writs of Seizure and Sale of Land may be filed through the Small Claims Court within the relevant jurisdictions and the Writs will each be registered with the applicable Sheriff.
It is notable that a Writ of Seizure and Sale of Land expires six years after issuance; however, the Writ can be renewed if renewed before expiry and, if after expiry, may be renewed, or re-issued, subject to the Order of a judge.
A Writ of Seizure and Sale of Land may be filed even when a judgment debtor is believed to lack ownership in any real estate. In such a circumstance, a Writ may be filed pursuant to the Creditors' Relief Act, 2010, S.O. 2010, Chapter 16, Schedule 4, which essentially states that if one creditor is able to find assets of the judgment debtor and files a garnishment in the Superior Court of Justice, then any money that comes into the hands of the Sheriff will be split equally amongst all judgment creditors of that same judgment debtor who have filed a Writ of Seizure and Sale of Land with the Sheriff or who have filed a garnishment with the Superior Court of Justice.
What Is a Garnishment
A garnishment is a method to collect a judgment when you know who owes money, or will owe money, to the judgment debtor The most common monies garnished are either employment wages or funds within a bank account.
To start the garnishment process, a Notice of Garnishment form is issued by the Small Claims Court. The form is a legal document when properly issued and served by you or your paralegal. It legally requires the party who owes the money, called a Garnishee, to pay all the money it owes to the debtor or all the money it is holding on behalf of the debtor to the court within ten days of service of the Notice of Garnishment.
If the Garnishee does not pay the full amount of the judgment to the court within ten (10) days of service it is legally required to file with the court and serve you the creditor, or your paralegal with a document called a Garnishee Statement. This document advises the creditor of what money is owed or will become owing, if no money is owed and no money is expected to owing, as well as other information.
If the full amount of the judgment is not paid to the court and no Garnishee Statement is served and filed by the Garnishee, then the creditor may request a Garnishee Hearing before a judge. At the Garnishee Hearing the court may order judgment against the Garnishee.
Taking a step back, it is very important for the creditor to do the proper government searches to determine the proper legal registered name of Garnishee e.g.: an employer. Too often self-represented creditors fail to do this search. The only recourse if the Garnishee fails to pay money into court and fails to serve and file a Garnishee Statement is for the creditor to try to obtain a judgment against the Garnishee.
A judgment obtained against a Garnishee is worthless if it is not in the proper registered corporation name or proper registered corporate trade name.
If a creditor knows where the debtor has a bank account, they may issue a Notice of Garnishment to that bank. In order to do this the creditor must know the proper legal name of the bank, trust company, or credit union, as well as the home branch where the account is actually located.
If a Notice of Garnishment is issued and served on a particular bank branch, the bank, now a Garnishee, is required to pay all money to the court it has on the deposit for the debtor at that branch. The Garnishment applies to all accounts the debtor has at that branch.
If there is a joint bank account at the Garnishee branch, then the bank must pay fifty (50%) percent of the money held in a joint bank account to the court. Check the Rules of Small Claims Court for extra duties imposed on the creditor if you receive a Garnishee Statement advising of a joint bank account.
A Notice of Garnishment will expire six years after issue. It can be renewed before or after expiry, but you will need a judge’s order to issue or renew a Notice of Garnishment if the Small Claims Court judgment is more than six years old.
What Is a Judgment Debtor Examination?
A Judgment Debtor Examination is a hearing where the creditor or the creditor’s paralegal has the right to ask the debtor almost anything about the debtor’s past, present, and future ability to pay the judgment.
The hearing is conducted in front of a Small Claims Court judge. The debtor is required to swear an oath to tell the truth. The proceedings are recorded by the court. The creditor can obtain a transcript of the hearing for a fee.
The hearing is held in private unless the judge orders otherwise.
If the debtor is an individual, they are also required to fill out a form called a Financial Information Form. This completed form must be served on the creditor before the hearing. The Financial Information Form gives the creditor very basic information about the debtor’s income, assets, and liabilities. The form itself is not a sworn statement.
It is up to the creditor or the creditor’s legal representative to ask the debtor very detailed questions about their ability to pay the judgment. Many self-represented creditors are unwilling to ask the debtor the tough questions, or don’t know the right questions to ask. Additionally, like cross examination at a trial, many self-represented creditors do not know how to deal with a witness that is being evasive or who is outright lying.
In a very general sense the Rules of the Small Claims Court allow a creditor or their paralegal to ask the debtor about: the reason for non-payment, the debtor’s income and property, the debts owed to and by the debtor, the disposal the debtor has made of any property either before or after the order was made, the debtor’s present, past and future means to satisfy the order, whether the debtor intends to obey the order or has any reason for not doing so, and any other matter pertinent to the enforcement of the order.
At the end of the hearing the parties may agree on an amount for the debtor to pay the creditor on a monthly basis. Even if there is no agreement as to monthly payments the creditor may ask the judge for an order for monthly payments.
Why Would a Creditor Be Hesitant to Want An Order For Monthly Payments?
Once an order for monthly payments (or periodic payments as it is referred to in the court’s rules) is made and until it terminated by the creditor due to default, the creditor cannot take any other enforcement action with the exception of filing a Writ of Seizure and Sale of Lands. Due to the limited scope of this overview of the judgment enforcement procedure, check with the court, hire a paralegal, or refer to the Rules of the Small Claims Court for the forms and procedure that a creditor must take to terminate a court ordered periodic payment plan.
The reason you as a creditor are seeking as much information as possible from the debtor at this hearing, is that if the debtor fails to make monthly payments as ordered, you now have all the information you need to take other enforcement action(s).
The creditor may also ask the judge for orders to review the debtor’s ability to pay at some future date, and orders for the debtor to produce and disclose documents that will assist the creditor in verifying information obtained under oath, and/or give the creditor more information about the debtor’s ability to pay the judgment.
The most common documents creditors seek orders for production for include: pay stubs, income tax returns or CRA notices of assessment, proof of receipt of social assistance, and bank statements. Be creative. Ask for anything you think will assist you. The worst thing that can happen if you ask for too much or your request is unreasonable is the judge will say no. I am not going to order that.
If a debtor willfully fails to either attend an examination hearing, to produce documents as ordered, or refuses to answer questions under oath, this can lead to them being found in contempt of court, and a warrant for their arrest to issue. See the Rules of the Small Claims Court or hire a paralegal for more information on the steps and procedures involved.
What Is a Writ of Seizure and Sale of Personal Property?
I will spend less time on this enforcement method as in my opinion it is both the least effective method to collect a judgment and can be the most expensive. The Notice of Writ of Seizure of Personal Property is often a form issued by a self-represented party without knowing all that is involved.
You may issue the Writ of Seizure and Sale of Personal Property form with the Small Claims Court, and file with the form with Sheriff in the jurisdiction where the debtor lives or carries on business. You can then file the form Direction to Enforce Writ of Seizure and Sale of Personal Property.
In the direction form you must provide the sheriff very specific information of where to locate assets and what specific property you want the sheriff to seize and sell.
Why Does Civil Litigations Paralegal Services Rarely Use This Method of Enforcement?
First, you must provide the sheriff with a money deposit to cover anticipated expenses of seizure, freight, storage and sale of the goods. The deposit may be as little as a one thousand ($1,000.00) dollars or may be many thousands of dollars depending on what you want seized. Check with the sheriff’s office to find out the deposit needed for what you want seized. An additional deposit may be requested if the funds are all used on expenses before the property is sold at auction.
Secondly, a Sheriff lacks the power to enter the principal residence of the debtor unless an exception set out within the Execution Act applies or where a judge, with the authority to do so, issues an Order allowing the Sheriff to use reasonable force, if necessary, to enter the principal residence of the judgment debtor. With this said, a Sheriff does have the power to enter a business premise.
I have clients that want me to direct the sheriff to seize and sell a car or truck found outside a residence. The sheriff does have the power to do that. However, who owes that car? Is there a lien registered against the car? Is the car leased? What is the current value of the car?
If you want the sheriff to seize and sell a motor vehicle you will need to have searches done and produced to the sheriff to show: the vehicle is wholly owned by the debtor and no one else, there are no liens on the vehicle by a finance company, in some cases for older vehicles you will need to prove that the vehicle will obtain enough money at auction that it will exceed all the sheriff’s expenses.
Generally, I have found a new vehicle is either leased or has a financing lien registered against it. If it is an older vehicle either the sheriff will refuse to seize it, or if seized and sold the vehicle may fail to obtain enough money at auction to cover all the sheriff’s expenses which you are liable.
Going back to the discussion under Writ of Seizure and Sale of Lands, you must also be aware of the Creditors’ Relief Act, 2010. Are there other creditors who have filed an execution with the sheriff which makes them (in most cases) entitled to an equal portion of any excess funds obtained by the sheriff after expenses are paid?
Unless there is an exception in the Execution Act or its regulations the sheriff cannot seize the following:
clothing (up to a certain amount);
household furniture, utensils, equipment, food and fuel (up to a certain amount);
tools and instruments used in the debtor’s business (other than tillage of the soil or farming) (up to a certain amount);
tools, books and instruments used for the tillage of the soil or farming and livestock, fowl, bees and seed (up to a certain amount); and
one motor vehicle worth less than the specified amount.
The proceeding information was only an overview of the judgment enforcement options. It is not meant be all the information you need if you represent yourself. There have been numerous books written on the art of judgment recovery. A few of those books and online resources of information are recommended at the bottom of this page.
- Rules of the Small Claims Court, O. Reg. 258/98
- Small Claims Court Booklet: “After Judgment – Guide to Getting Results”
The information contained on this website is not legal advice. This website provides general information about judgment enforcement procedures. Only a paralegal or a lawyer who has met with you in person can assess your case to provide you legal advice. While every effort is made to keep the information on this website current, please be advised the statute law, regulations made under statute law, case law, court procedures and forms are constantly changing. Civil Litigations Paralegal Services does not warrant that the information on this website is current or complete.