It is well understood by legal practitioners that obtaining a Judgment at court, such as Small Claims Court or an Order at a tribunal, such as the Landlord Tenant Board, does not mean getting the debt paid. A Judgement is simply an official declaration that the money is owed, nothing more. Enforcing the Order for payment is often more difficult than getting the Judgment in the first place.
Once a Judgment is obtained the person to whom the money is owed, (a Defendant can obtain an Order for Costs) becomes the ‘Creditor’ and the person that owes the money becomes the ‘Debtor’. The creditor can ‘enforce’ the Judgment or Order through the Sheriff’s office at the local court in one of three ways. The creditor can file a Garnishment, Writ of Seizure & Sale or a Debtor Examination (Judgment Summons Exam) at the court where the debtor lives. (This article deals only with Garnishments.) The Judgment must be transferred to that judicial jurisdiction. This can mean obtaining a Certificate of Judgment from the court that issued the Judgment and filing it in the jurisdiction where the debtor lives.
A Garnishment can be used to ‘redirect’ payments from someone or some corporation that owes the debtor money to the court for reimbursement to the creditors. A Notice of Garnishment and an Affidavit for Enforcement Request must be completed and filed with the court where the debtor lives. The Affidavit for Enforcement Request is a document that shows the calculations that determine the amount the debtor owes down to the penny, including costs, pre-Judgment and post-Judgment interest and deducting any payments already made. This is a very tricky document to complete accurately and it is not uncommon for the court clerks at the counter to assist in ‘correcting’ the document so the math accurately reflects the amount actually owed. It is recommended that an excel spreadsheet outlining the calculations is attached with the Affidavit for Enforcement Request so the clerks can follow the math that has been used to calculate the total debt.
On filing, the court clerks will stamp the document with a court seal and keep a copy along with the Notice of Garnishment. Copies of those documents (not originals) are then served on the debtor (personal service is not required). A copy of the Affidavit for Enforcement Request and a Garnishee Statement are also served on the garnishee (the person or company that owes the debtor money). Once those documents are served an Affidavit of Service has to be commissioned (sworn to be true) that both the debtor and the garnishee were properly served and filed with the court.
As per the Creditors' Relief Act, 2010, S.O. 2010, c. 16 , Sched. 4, there are typically three types of Garnishments, in order of priority:
1. Orders from Canada Revenue Agency (CRA) or Revenu Québec (RQ) for outstanding taxes or for recovery of overpayments from social benefits (C/QPP, EI or QPIP)
2. Family maintenance orders
3. Court orders
No priority among execution or garnishment creditors
2. (1) Except as otherwise provided in this Act, there is no priority among creditors by execution or garnishment issued by the Superior Court of Justice, the Family Court of the Superior Court of Justice and the Ontario Court of Justice. 2010, c. 16, Sched. 4, s. 2 (1).
Exception, Small Claims Court (2) Subsection (1) does not affect the priority of,
(a) a creditor by garnishment issued under the Small Claims Court Rules made under the Courts of Justice Act; or
(b) a creditor by writ of seizure and sale of personal property issued under the Small Claims Court Rules made under the Courts of Justice Act. 2010, c. 16, Sched. 4, s. 2 (2).
Exception, support or maintenance orders
2 (3) A support or maintenance order has the following priority over other judgment debts, other than debts owing to the Crown in right of Canada, regardless of when an enforcement process is issued or served:
1. If the maintenance or support order requires periodic payments, the order has priority to the extent of all arrears owing under the order at the time of seizure or attachment.
2. If the support or maintenance order requires the payment of a lump sum, the order has priority to the extent of any portion of the lump sum that has not been paid. 2010, c. 16, Sched. 4, s. 2 (3).
Support orders rank equally
(4) Support and maintenance orders rank equally with one another. 2010, c. 16, Sched. 4, s. 2 (4).
Right to share in subsequent distribution
(6) A creditor who has shared in a previous distribution is entitled to share in a subsequent distribution, but only to the extent of the amount remaining due to that creditor after crediting the creditor with amounts previously received. 2010, c. 16, Sched. 4, s. 4 (6).
The garnishee is required to calculate the amount to be submitted to the court. In the case of wages, up to 20% of the total ‘net’ amount (Wages Act R.S.O. 1990, c. W.1, s. 7 (1)) can be garnished or up to 50% under a family maintenance Order.
Direction by judge to seize additional money
10 (8) The judge may by order direct the sheriff to seize any additional money or property of the judgment debtor that would be required to satisfy the claim of the objector. 2010, c. 16, Sched. 4, s. 11 (8).
Wages Act R.S.O. 1990, c. W.1
Exemption from seizure or garnishment
7 (2) Subject to subsection (3), 80 per cent of a person’s wages are exempt from seizure or garnishment. R.S.O. 1990, c. W.1, s. 7 (2).
Idem, support or maintenance
(3) Fifty per cent of a person’s wages are exempt from seizure or garnishment in the enforcement of an order for support or maintenance enforceable in Ontario. R.S.O. 1990, c. W.1, s. 7 (3).
Judge may decrease exemption
4) A judge of the court in which a writ of execution or notice of garnishment enforceable against a person’s wages is issued may, on motion by the creditor on notice to the person, order that the exemption set out in subsection (2) or (3) be decreased, if the judge is satisfied that it is just to do so, having regard to the nature of the debt owed to the creditor, the person’s financial circumstances and any other matter the judge considers relevant. R.S.O. 1990, c. W.1, s. 7 (4).
Judge may increase exemption
(5) A judge of the court in which a writ of execution or notice of garnishment enforceable against a person’s wages is issued may, on motion by the person on notice to the creditor, order that the exemption set out in subsection (2) or (3) be increased, if the judge is satisfied that it is just to do so, having regard to the person’s financial circumstances and any other matter the judge considers relevant. R.S.O. 1990, c. W.1, s. 7 (5).
Note that this does not apply to garnishments of employees of the federal government, which are governed by the FAMILY ORDERS AND AGREEMENTS ENFORCEMENT ASSISTANCE ACT - Family Support Orders and Agreements Garnishment Regulations SOR/88-181.