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Difference between revisions of "Enforcement of a Small Claims Judgment (20:XVII)"
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Enforcement of a Small Claims Judgment (20:XVII) (view source)
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= June 24, 2023}} | ||
{{LSLAP Manual TOC|expanded = smallclaims}} | {{LSLAP Manual TOC|expanded = smallclaims}} | ||
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The judgment creditor should send a copy of the payment order with a demand letter to the debtor. If the court did not give the debtor a deadline, the judgment debt is due immediately (''Court Order Enforcement Act'', RSBC 1996, c 78, s 48(1)). The demand letter should warn that, if payment is not received by a certain date (i.e., 10 days later), other enforcement proceedings will be pursued. | The judgment creditor should send a copy of the payment order with a demand letter to the debtor. If the court did not give the debtor a deadline, the judgment debt is due immediately (''Court Order Enforcement Act'', RSBC 1996, c 78, s 48(1)). The demand letter should warn that, if payment is not received by a certain date (i.e., 10 days later), other enforcement proceedings will be pursued. | ||
The Small Claims Court has an excellent procedural guide entitled “[http:// | The Small Claims Court has an excellent procedural guide entitled “[http://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides/getting-results Getting Results]”. Once an enforcement strategy has been decided upon, a judgment creditor should consult the booklet for detailed instructions on how to commence enforcement proceedings. | ||
To enforce payment, a creditor may use any of the following methods (''SCR'', Rule 11(11)): | To enforce payment, a creditor may use any of the following methods (''SCR'', Rule 11(11)): | ||
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== C. Garnishment After Judgment == | == C. Garnishment After Judgment == | ||
Garnishment requires a third party, often the debtor’s employer or bank, to pay money owing to the debtor into court instead of to the debtor. The creditor must file an affidavit that describes the amount of the payment order, the amount still owing, and the name and address of the garnishee. The affidavit must be sworn before a notary, a lawyer, or a justice of the peace at the registry. Certain assets such as social assistance payments (welfare, disability) and joint accounts may not be garnished. With some exceptions, only 30 percent of the debtor’s salary can be garnished (''Court Order Enforcement Act'', RSBC 1996, c 78, | Garnishment requires a third party, often the debtor’s employer or bank, to pay money owing to the debtor into court instead of to the debtor. The creditor must file an affidavit that describes the amount of the payment order, the amount still owing, and the name and address of the garnishee. The affidavit must be sworn before a notary, a lawyer, or a justice of the peace at the registry. Certain assets such as social assistance payments (welfare, disability) and joint accounts may not be garnished. With some exceptions, only 30 percent of the debtor’s salary can be garnished (''Court Order Enforcement Act'', RSBC 1996, c 78, ss 3(5)-(7)). | ||
The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time. | The creditor must also fill out a garnishing order identifying the garnishee (the bank or the employer) with its full legal name and address. In the case of a bank, the specific branch must be identified and must be located in British Columbia. The garnishee will pay the entire amount it owes the debtor (i.e., the positive balance in a bank account). The garnishing order does not freeze the account; the claimant may re-garnish the bank at any time. | ||
Once the creditor receives a garnishing order, they must serve both the garnishee and the debtor either personally, or by registered mail. | Once the creditor receives a garnishing order, they must serve both the garnishee and the debtor either personally, or by registered mail requiring signature. | ||
Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, they must pay the amount owed to the court. All money paid into court is held until further order of the court. | Once an order for garnished wages is served on the garnishee, the order is only valid for wages due and owing within '''seven''' days (''Court Order Enforcement Act'', RSBC 1996, c 78, s 1) – it is therefore critical to have some knowledge relating to the debtor’s pay schedule. If the garnishee owes money to the debtor, they must pay the amount owed to the court. All money paid into court is held until further order of the court. | ||
A creditor may apply for the garnishment of a debtor’s bank account and accounts receivable '''before''' a judgment is reached. This is called a pre-judgment garnishing order. For more information, see '''Section III.B. | A creditor may apply for the garnishment of a debtor’s bank account and accounts receivable '''before''' a judgment is reached. This is called a pre-judgment garnishing order. For more information, see '''Chapter 10, Section III.B.5.: Garnishment of Bank Accounts and Other Accounts Receivable'''. | ||
== D. Payment Hearing == | == D. Payment Hearing == | ||
A payment hearing may be scheduled before a judge or justice of the peace (''SCR'', Rule 12). | A payment hearing may be scheduled before a judge or justice of the peace (''SCR'', Rule 12). The default method of appearance is by telephone or Teams audio or videoconference. The payment hearing will determine the debtor’s ability to pay and whether a payment schedule should be ordered (''SCR'', Rule 12(1)). Such a hearing may be requested by a creditor or debtor or ordered by a judge (''SCR'', Rule 12(2)). However, if a creditor has an order for seizure and sale, they must get the permission of a judge to also have a payment hearing. The debtor must bring records and evidence of income and assets, debts owed to and by the debtor, any assets the debtor has disposed of since the claim arose, and the means that the debtor has, or may have in the future, of paying the judgment (''SCR'', Rule 12(12)). Costs to the applicant in such a proceeding are added to the sum of the judgment. | ||
A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served personally at least seven days before the date of the hearing (''SCR''Rules 12(7) and 18(12)(b)); service by mail is not permitted. | A creditor who requests a hearing must file Form 12: Summons to a Payment Hearing. The registry will set a date on the form and the person named in the summons must be served personally at least seven days before the date of the hearing (''SCR''Rules 12(7) and 18(12)(b)); service by mail is not permitted. | ||
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The Stay of Proceedings is only effective against debts that are dischargeable (i.e., can be eliminated) by bankruptcy law. Things like child support, spousal support, restitution orders, repayment of debts based on fraud or misrepresentation, and some others are not stopped by a stay. A complete list of the debts can be found under the Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 178. | The Stay of Proceedings is only effective against debts that are dischargeable (i.e., can be eliminated) by bankruptcy law. Things like child support, spousal support, restitution orders, repayment of debts based on fraud or misrepresentation, and some others are not stopped by a stay. A complete list of the debts can be found under the Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 178. | ||
There are ways for creditors to circumvent a Stay of Proceedings. However, | There are ways for creditors to circumvent a Stay of Proceedings. However, individuals with a judgment awarded in Small Claims Court are advised to speak with a trustee and discuss the mechanism of submitting a proof of claim. This form must be filled out to share in the dividends and vote at the first meeting of creditors (if one is held). The form contains the name of the creditor and the bankrupt and the nature and amount of the claim, as well as other information. A list of instructions is usually included. You must attach a Statement of Account providing the details of the claim along with supporting documents or other evidence that establishes the validity of your claim. | ||
== I. Debt collection == | == I. Debt collection == | ||
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== J. Civil Resolution Tribunal == | == J. Civil Resolution Tribunal == | ||
Under the ''Civil Resolution Tribunal Act'', section 58.1, a CRT order may be enforced by filing it in the BC Provincial Court. This can be done if a party has either a consent resolution order, or a final decision. The BC Provincial Court must be provided with a validated copy of the order. A validated copy of a CRT order is sent with the CRT decision. | Under the ''Civil Resolution Tribunal Act'', section 58.1, a CRT order may be enforced by filing it in the BC Provincial Court. This can be done if a party has either a consent resolution order, or a final decision. The BC Provincial Court must be provided with a validated copy of the order. A validated copy of a CRT order is sent with the CRT decision. Once a small claims order is received, it can be filed immediately. Effective from July 1st, 2022, the BC government amended the CRTA to remove a previously existing process for parties to dispute the decision by making a Notice of Objection. As such, the only remaining option to appeal CRT decisions now is through application for judicial review. | ||
When a CRT order is filed with the BC Provincial Court, it has the same force and effect as if it were a judgment of the BC Provincial Court. The enforcement procedures are within the Court’s jurisdiction. That is, the CRT has no powers of enforcement for its own orders, or for orders from other tribunals such as the Residential Tenancy Branch. | When a CRT order is filed with the BC Provincial Court, it has the same force and effect as if it were a judgment of the BC Provincial Court. The enforcement procedures are within the Court’s jurisdiction. That is, the CRT has no powers of enforcement for its own orders, or for orders from other tribunals such as the Residential Tenancy Branch. | ||
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