Once a trial is over and you have a court order, there is usually more you will have to do to get whatever the judge decided you were entitled to.
The order – or judgment decision – needs to be put in writing and then filed with the court before you can take any steps to enforce or collect on the order. The court does not collect the money for you but the judge can set a schedule of payments. Once filed, an order expires after 10 years. For best results, action should be taken right away; however there is no guarantee that the debtor will pay.
The Ministry of Attorney General has prepared a guide to help you collect on a judgment – it’s called Getting Results.
Options for the creditor
There are some options available to help you collect on the order. They include:
- A payment hearing. This gives you a chance to find out all the debtor’s financial details, such as his or her address, bank accounts, property owned (including cars or land), employment, income and expenses. A debtor can also ask for this hearing to make changes in the order if he or she is having trouble paying. The court registry will give you information and help you to set up a payment hearing. To learn more, read the Provincial Court’s post: How to enforce a Small Claims Court Payment Order - with a payment hearing. The Law Centre Factsheet: Payment Hearings.
- Garnishment of wages or bank accounts. This is a way of getting money that is owed to the creditor before it is paid to the debtor. There are strict rules that must be followed to get a garnishment order. You will also have to repeat the procedure for each new pay period as you can only garnish up to 30% of wages or salary at one time. There is no limit on the amount you can garnish from a bank account. The garnishing order is served on the garnishee, which is a third party that owes the debtor wages or a bank that holds the debtor’s money.
If you are garnishing wages, you must know the correct legal name of the employer, the address and the pay date. The date on which the affidavit is sworn must be within seven days before the pay date. If you are garnishing a bank account, you have to know the branch where the debtor banks, so that you can serve the garnishing order at that branch. Garnished money goes directly to the court. Once the court receives the funds you will have to ask the court to pay the money out to you and serve notice on the debtor that you are doing so. The usual practice is to serve the garnishee first and then serve the debtor if money is paid into court. The entire procedure needs to be repeated each time you wish to garnish a debtor’s pay cheque or bank account. To learn more, read The Law Centre Factsheet: Garnishing Orders.
- Seizure and sale of goods by the court bailiff. If the money owed by the debtor has not been paid, you can ask the court bailiff to take personal possessions belonging to the debtor and sell them at public auction. This can be an expensive procedure so make sure you know all the rules around exemptions and that the debtor has property worth taking. The most common items seized are motor vehicles and shares in a company. To learn more, read The Law Centre Factsheet: Seizing Assets.
- A default hearing occurs if there is already a payment schedule in effect which the debtor is not following. The judge will ask the debtor why the payments were not made and may adjust the order or put the debtor in jail for up to 20 days if the judge feels that the debtor is showing contempt for the court order. The debtor will still owe the money. If the debtor has been properly notified and still does not attend this default hearing, he or she can be arrested. To learn more, read The Law Centre Factsheet: Default Hearings.
- Registration against land. Your judgment can be registered against the title of land owned by the debtor. In the long term, this may be the most effective option because it will affect the owner’s ability to sell or mortgage his or her land. You need to renew the registration every two years, before the previous registration expires.
To learn more about your options for collecting on judgment, the Ministry of Attorney General has published a procedural guide called Getting Results. You can also read The Law Centre Factsheet: Overview of Collection Procedures. In addition, Dial-a-Law has published audio and text scripts called “Getting Your Judgments Paid”. This website lists the Court Forms you may use for enforcement of judgments.