Can I make the judgment debtor tell me about his or her ability to pay?
If the judgment debtor refuses to say whether he or she can pay, you may get a court order to have the judgment debtor submit to an examination.
There are two examination procedures. With an Arrest and Examinations Act examination, the clerk of the court presides over the examination. The judgment creditor and the clerk ask questions about the judgment debtor's assets and ability to pay. The judgment debtor must answer the relevant examination questions. If the debtor can pay, the clerk may make an order to pay by installment. If the judgment debtor does not respect the order, you will need a lawyer to take civil action for contempt of a court order. There is also an examination procedure under the Rules of Court. This procedure is rarely used for small claims judgments. You should consult a lawyer to prepare for this examination.
IV. ENFORCING THE JUDGMENT
What if I decide that it is worthwhile to try enforcing the judgment?
Remember, you must register the judgment in the PPRS before you start these proceedings against personal property.
There are two main procedures to enforce a judgment:
- seizure and sale, and
What is an Order for Seizure and Sale?
It is a court order which directs the sheriff to try to seize and sell some of the judgment debtor's property to pay the judgment. To get one, take your judgment and a copy of your verification of registration in the PPRS to the clerk at the Court of Queen's Bench. Ask for an Order for Seizure and Sale (called Form 61A). Fill it out completely and take the order and a copy of your verification of registration in the PPRS to the sheriff's office. Do this in a district where you think the judgment debtor has property. The order is enforceable throughout the province.
Some property is exempt from seizure and sale. This includes some furniture and appliances, as well as one motor vehicle to a certain value. Property which is not exempt is called exigible. All exigible personal property must be sold before you can seize and sell land. It is advisable to consult a lawyer if you are going to try to seize and sell land.
How does an Order for Seizure and Sale work?
Once you have given the order to the sheriff, he or she will ask for instructions in writing, as well as payment of a $75 registration fee. The sheriff may ask for a security deposit to be sure that the Sheriff's Office can cover anticipated expenses of seizure and sale.
You can give any accurate information that you have about the judgment debtor to the Sheriff's Office. This will help the investigation and speed up the process. You can include the debtor's name, street address (not just mailing address) with apartment number, place of employment, and so on. You can also give specifics about the judgment debtor's property you want the sheriff to seize and sell. Make sure the information is accurate, because you may be liable for damages if it is not. The sheriff will usually give the judgment debtor a demand to settle the matter within fourteen days before proceeding further because costs will increase as the procedure continues. This is the reason for the security deposit.
The sheriff will try to recover enough money from the seizure and sale to pay you and cover any additional expenses. Additional costs could include locksmiths, storage and labour, advertising, etc. Note that you may lose your security deposit if the sheriff does not recover enough money to cover expenses. The sheriff will do as much as possible to successfully execute the order and then return it to you indicating what happened.
What happens to the money from the seizure and sale?
If you are the only creditor and the amount of money recovered is less than $750, the sheriff will give it to you after recouping costs. If the sheriff recovers more than $750, the sheriff will hold the money for thirty days in case of other creditors. If the other creditors make a claim on the money recovered, they will receive a share in proportion to their claim. Also, certain creditors may have priority over you, such as banks and government agencies. They will have first claim to the money. You will receive your share of the money after priority creditors get theirs.
What is garnishment?
Garnishment is a court order demanding that a third party who owes money to a judgment debtor pay the judgment creditor instead. For example, if the judgment debtor has a bank account with money in it, the court can require the bank to pay you. It does not apply to wages, so the court will not order the debtor's employer to pay the debtor's wages to you. To get a garnishment order, you must apply to the court. This is a complex procedure and you will need to consult a lawyer. If you think that the judgment debtor has surplus income, you may be able to get a payment order (See examinations section).
What else should I know?
- If the judgment debtor goes bankrupt, the rules change completely. You will not be able to continue with enforcement proceedings.
- Many potential complications may arise during the enforcement process. For example, there may be a dispute about who really owns the property, property may be jointly owned, or there may be security interests.
- After you receive complete payment for the judgment, you must discharge a Notice of Judgment at the PPRS within 30 days.