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You have endured the crucible of a trial and you’ve won your decision.  Congratulations!  Now what?  Sometimes the trial is the easy part of the court process.  Enforcement is the key; getting the other side to pay what you are owed is seldom talked about.

In this phase of the court process, you are now no longer a Plaintiff.  You are now a Creditor.  The Defendant has now become the Debtor.  You have a Certificate of Judgment in hand and you are now ready to collect.  You may not realize this, but as a Creditor, you now have strong and wide powers on your side that you can call upon to enforce your judgment from Small Claims Court.

1.  File a Writ of Seizure & Sale of Personal Property

Yes, you can order a Sheriff to seize property and then sell it to get the money you are owed.  File this writ, even if you don’t know if there is property to seize.  You may not be the only Creditor that the Debtor has.  With this writ, if the other Creditor seizes and then sells some personal property, you are entitled to a share of that sale.  The writ also creates problems for the Debtor’s credit rating as this is reported to firms like Equifax® and TransUnion®.

2.  File a Writ of Seizure and Sale of Land

Yes, you can order a Sheriff to seize land in order to get payment from a Debtor.  This does three things:

  1. It stops the Debtor from re-financing real estate in their possession;
  2. It stops the Debtor from selling real estate in their possession; and
  3. It stops the Debtor from getting financing for a new property.

This is probably the most important writ in your arsenal and is the only one that is unaffected by a consolidation order.  It is the only writ that you can get after a consolidation order.  It is also the only writ that remains active in a consolidation order if you’ve already got the writ.

3.  File a Writ of Delivery

If you have a Small Claims Court judgment that orders a return of the Creditor’s property, and for whatever reason, the Debtor decides to ignore the order, this writ puts the Bailiff as the guy in your corner to get your stuff back.

4.  File a Notice of Garnishment

The Rules of the Small Claims Court are very specific when using this notice.  They should be followed to the letter.  Garnishment is a very powerful tool, but you need detailed information to use this tool properly.  If the Debtor is a business and you know its business customers, you can send this notice to the Debtor’s customers.  If you have the Debtor’s banking information, you can apply directly to the bank to get what you are owed.  If the Debtor is an employee, you can get a garnishment against the Debtor’s employer.  The rule of thumb here is that Debtors do not want their financial affairs known to third parties, especially when they owe.  The threat of garnishment can sometimes be enough to get full payment on your judgment.

5.  File a Notice of Examination

This is the most intrusive of court procedures.  If you’ve tried everything else and you haven’t had any success, an examination of a judgment Debtor will get you the answers you need.  In this enforcement procedure, you can cast a wide net and ask any question about where their money is tied up.  You can ask questions about the Debtor’s:

  • marital status
  • employment status
  • salary or hourly wage
  • commissions
  • bonus schemes
  • EI
  • HST rebates
  • current house value
  • mortgage payments
  • house equity
  • spouse’s income/employment status
  • children
  • personal budget
  • real estate (not a principal residence)
  • vehicles (where it’s kept, it’s value), including recreation vehicles
  • bank accounts
  • assets, including:
    • IOUs
    • Mortgages
    • Government bonds
    • RRSPs
    • RESPs
    • Mutual funds
    • equities
    • lottery tickets
    • coins & stamps
    • liquor
    • gold & silver
    • jewelry
    • pensions
    • patents
    • royalties
  • life insurance
    • on self
    • on spouse
    • beneficiaries
  • money in their pocket at the time of examination
  • inheritance
  • spouse’s real estate holdings
  • spouse’s vehicles
  • spouse’s or joint bank accounts
  • tax returns for the past 2 years and any refunds owing
  • etc.

And this is not an exhaustive list.  An examination should send a clear message to the Debtor:  it’s better to pay voluntarily and come up with a payment plan if the Debtor can’t pay it all at once.  Your questions are not limited to the Debtor only.  You can subpoena anyone on suspicion alone you think has money for the Debtor and they will have to answer questions about the Debtor.

Conclusion

There are, in certain circumstances, limits to what you can seize or garnish from a Debtor.  Independent legal advice is needed to help you figure out all of your options.  If you have a Small Claims Court judgment, and you are having trouble enforcing the court order, contact me to determine your legal options today.