There is a common misconception that once you win in court, the court will collect the judgment. While it is true that enforcement of any order can be done through the courts, it is the successful party that must initiate the collection. It is not automatically done.
Any order or judgement will survive for a period of six years, at which time, one must apply via motion to extend it. It is a good idea to collect the judgement within the six years, but that may not always be possible.
Enforcement of an order or judgment is done through the Small Claims Court in Ontario. If the order or judgment was obtained through another court, such as the Landlord and Tenant Board, it must be transferred to the Small Claims Court. There is a nominal court fee for doing this. Once transferred, there are several ways to collect monies owed to you.
First, you must determine which way will satisfy the debt. You must determine where the debtor gains income, where he or she banks, what assets are owned. If this is not already known, this information may be garnered through the court system by way of a Notice of Examination. This is a hearing before a judge wherein the debtor must divulge his financial information under oath. As this is a court hearing, court fees do apply.
To do this, however, you must be able to find the debtor, as he or she must be personally served the notice of hearing. You may have to have the process of skip tracing done, which can prove to be costly.
GARNISHMENT OF WAGES
A garnishment of wages is generally the easiest, most efficient way to collect a judgment. The Wages Act restricts collection to 20% of the debtors pay, in most cases. The employer must deduct the 20% and remit to the enforcement division of the Small Claims Court, from each pay, until the Garnishment is satisfied, or until termination of employment whichever comes first.
When the debtor is employed by a Federal Agency, such as the CRA or the military, this option is a little more complicated, and therefore, more expensive. Having said that, it normally will be completed more quickly once the garnishment is in place, due to the higher wages.
Any monies that are procured by the debtor through social assistance, disability payments or another federal payment such as Child Tax Benefit, cannot be garnished by way of a garnishment of wages.
GARNISHMENT OF BANK ACCOUNTS
Contrary to the garnishment of wages, the bank who holds a bank account for a debtor must remit 100% of what is currently in the bank account. If this amount does not satisfy the garnishment, the bank must continue to remit any deposits into that account until the garnishment is satisfied.
WRIT OF POSSESSION
This option allows you to have the Sherriff seize assets from a debtor. The Sherriff will then be instructed to offer the assets seized for sale by way of an auction. If this option is used, you must keep in mind that the liquidation value of the assets may be lower than retail value, for instance, 25% of its worth, less the auction fees. This option is most often used when the debtor is a business owner.
ALL COURT FEES MAY BE ADDED TO A GARNISHMENT OR OTHER ENFORCEMENT
Any court fees that have been paid from the beginning with the transfer of the file, Examination Hearings, Garnishment fees, etc., can be included in the amount of the Garnishment and repaid as such by the debtor.
MONIES FROM ENFORCEMENT ARE HELD IN ESCROW BY THE COURT
The enforcement division will hold any monies in escrow for a period of 45 days. This will allow for any appeal of enforcement proceedings, ie: Garnishment Hearing, to occur. Should there be no appeal, the monies will be released to you.
Enforcement of an order or judgement is a very technical procedure in the legal sense. It requires multiple steps to be taken in a very precise order to be successful. Contact TPS to avoid these missteps and to collect your money in the most efficient manner.