Policy on Garnishment

Table of Contents

1. Background

2. Application

3. Purpose

4. Definitions

5. Accountability

6. Monitoring

7. Garnishee contacts

8. Garnishment procedures

9. Debtor is a Contractor

10. Confidentiality

11. Transfer or disposal of records

12. Enquiries

Appendix A - Examples of Calculations

Appendix B - Payroll information relating to calculations

Appendix C - Checklist

1. Background

The Garnishment Attachment and Pension Diversion Act, Part I, was proclaimed on March 11, 1983. The Act was subsequently amended by Bill C-41. Effective May 1, 1997, a notice of intention to garnishee is no longer required.

Part I of the Act allows for the garnishment of salaries and other remuneration paid to government employees, as well as for the garnishment of fees paid to a contractor engaged as an individual (as opposed to a corporation) under contract for services only.

Part II of the Act allows for the diversion of pension benefits to honour financial support orders. A new and different action must be taken to divert a pension, even if a former employee's salary was subject to continuing garnishment. The onus is on the recipient of the financial support payments to apply under Part II of the Act. The Minister of Public Works and Government Services is the responsible minister for Part II of the Act.

2. Application

The garnishment procedures herein apply only to organizations listed under the Public Service Staff Relations Act, Schedule I Part I (PSSRA 1.1).

These garnishment procedures do not apply to the diversion of pension benefits. Support orders for pension diversion should be sent to:

The Garnishment Attachment and Pension Diversion Act (GAPDA) applies to all employees and individual contractors engaged by Her Majesty in right of Canada.

Part I of the GAPDA applies in the following manner:

Division I applies to all employees and individual contractors engaged by organizations listed under Schedule I, Schedule I.1, and Schedule II of the Financial Administration Act (FAA), and to a commission under the Inquiries Act that is designated as a department. Division I also applies to Crown corporations prescribed under subsection 6 of the Garnishment and Attachment Regulations, namely the Canadian Dairy Commission, Canadian Film Development Corporation, Canadian Livestock Feed Board, Royal Canadian Mint and Canada Post Corporation.

Division II applies to Crown corporations not covered by Division I. Division III applies to members of the Canadian Forces (non-civilians), and Division IV applies to the Senate, House of Commons and Library of Parliament.

The government is bound by provincial garnishment law, subject to the provisions of the GAPDA and the regulations made under the GAPDA. When there are inconsistencies between federal and provincial legislation, the GAPDA overrides the provincial garnishment law to the extent of the inconsistency.

3. Purpose

These garnishment procedures are designed primarily to inform departments and agencies of the procedures that they must follow so that the employer can respond to garnishee summonses within the time limits specified in the GAPDA. They are to be used in conjunction with the Act and the Regulations, the relevant Compensation and Receiver General directives and the departmental procedures.

4. Definitions

In these procedures, the following definitions apply.

Contractor (entrepreneur) - means any person receiving garnishable fees and engaged by any organization listed under PSSRA 1.1 as an individual, as opposed to a corporation, under a contract for services, to which the person is a party. This term does not include employees of companies that are under contract to provide services such as cleaning staff employed by office cleaning firms. Nor does it apply to individuals who have incorporated and whose corporation rather than the individual is a party to a contract. However, the term "contractor" does includes unincorporated sole proprietorships and partnerships

Employee (employé) - means any person employed in an organization listed under PSSRA 1.1

Garnisable fees (honoraires saisissable) - includes all moneys payable as fees, honoraria or similar payments to a contractor for performing a service, office or position. Except where a contract specifically differentiates between fees and expenses, such as travelling expenses, the specified expenses are not included

Garnisable salary (traitement saisissable) - means the basic pay payable to an employee for performing the regular duties of a position or office, and any amount payable as an allowance, special remuneration, payment for overtime or other compensation or gratuity, excluding any amount deemed to be excluded from that person's salary under section 5 of the Garnishment and Attachment Regulations. Amounts deemed to be excluded under section 5 of the regulations include, for example, a reimbursement for out-of-pocket expenses incurred while performing duties and compulsory deductions such as income tax, CPP/QPP contributions, Employment Insurance premiums, DI/LTD premiums and Superannuation contributions

Garnishee summons (bref de saisie arrêt) - includes any documents or court order of like import issued following a judgement

Pay period (période de paye) - as defined in the GAPDA is, "... in respect of any particular person, the period commencing on the day following the day that that person's salary cheque is normally dated and ending on the day that his next salary cheque is normally dated". In other words, "pay period" means the interval between regular pay cheques

5. Accountability

The Treasury Board Secretariat is responsible for ensuring that departments and agencies adopt procedures that will permit them to respond to garnishee summonses. These garnishment procedures were prepared to assist organizations in processing garnishments and to ensure that organizations adopt uniform procedures.

Departments and agencies are responsible for ensuring that the necessary garnishment procedures are established within their organization and for complying with garnishee summonses within the legal time limits.

6. Monitoring

To monitor and ensure systematic processing of garnishments, departments and agencies are requested to keep a log detailing the processing of garnishment documents. The log may include the following information: the debtor's name and paylist; the court or provincial enforcement agency (PEA) and the file number; the date the application for garnishment was served on the Department of Justice; the expiry date of the garnishee summons; the type of garnishee summons; the amount of the garnishee summons, and information on whether it is a percentage or a set amount, and whether arrears apply; the date the cheque was sent to the court or the PEA; the cheque amount; and the balance owing, if applicable.

7. Garnishee contacts

Departments and agencies are to designate those positions whose incumbents will be the organization's "garnishee contact".

One garnishee contact should be designated for each province or territory, and one for the National Capital Area. It may be necessary to name the same contact for more than one province or territory. The position title, telephone number, mailing address and geographical area of responsibility of each garnishee contact, and any changes to these, are to be provided to the Department of Justice to the following address:

On receipt of a garnishee summons from the Department of Justice, it is the responsibility of the "garnishee contact" to monitor and follow up at every stage and ensure that all necessary actions are taken, including maintaining a log for each garnishee summons. See section 6. for log information. A checklist of the processing procedures is attached as Appendix C.

8. Garnishment procedures

8.1. Procedures required of creditors and courts

When a creditor intends to garnishee an employee's salary or a contractor's fee, he or she must first obtain a judgement or order of a court against the debtor.

• When the debtor is an employee or a contractor, the creditor must serve the following documents on the appropriate Department of Justice office: a garnishee summons together with a copy of the judgement or court order against the debtor and an application in the prescribed form set out as Schedule I to the Regulations (section 6(1) of the GAPDA).

• The garnishee summons is not valid if served later than 30 calendar days after the date it was issued (section 6 (2) of the GAPDA).

8.2. Service of documents

In accordance with section 7 (1) of the GAPDA, all applications for garnishment must be served on the appropriate office of the Department of Justice as specified in section 4 of the Garnishment and Attachment Regulations . If garnishment documents are, in error, served directly on an office of a government organization, other than a designated office of the Department of Justice, the documents must be sent back to the applicant.

The Department of Justice will accept service of all garnishment documents required by the GAPDA as specified in the Regulations. In its role as legal adviser to the employer, it will:

• determine the completeness and validity of the application form, the court order and the garnishee summons;

• forward the required documents or copies thereof to the garnishee contact with written instructions and advice (for example, provincial law provisions limiting the amount that may be garnisheed, etc.); and

• advise the garnishee contact, as required, to facilitate carrying out the requirement of the garnishee summons.

Information concerning particular garnishee summons and actions should be obtained as needed from the Department of Justice office that forwarded the documents. Departments should obtain general legal information or advice on garnishment from their departmental legal services.

8.3. Response time

The garnishee summons binds Her Majesty 15 days after the day on which the documents are served on the Department of Justice.

The following money is bound by service of a garnishee summons.

• Employees: the garnishable salary to be paid on the last day of the second pay period next following the pay period in which Her Majesty is bound by the garnishee summons; and, when the garnishee summons has a continuing effect, the garnishable salary to be paid on the last day of each subsequent pay period.

• Contractors: the garnishable fees payable on the fifteenth day following the day on which Her Majesty is bound by the garnishee summons, as well as any that become owing in the next 14 days; and, when the garnishee summons has a continuing effect, any garnishable fees becoming payable after that fifteenth day.

The garnisheed money must be in the hands of the court or the office indicated in the garnishee summons within 15 calendar days after the day on which the money was garnisheed. Failure to comply within the above time limits could place the Crown in contempt of court.

8.4. Receipt of garnishee summons

On receiving a garnishee summons from the Department of Justice, the garnishee contact shall immediately take whatever steps are necessary to determine whether the debtor is, in fact, an employee or a contractor of the department or agency.

Note:

When a garnishee summons is served in accordance with the GAPDA, it is binding on the Crown, according to the GAPDA and according to the garnishment laws of the province from which it was issued, even though the employee who is the judgement debtor may live or work outside that province.

If the debtor is a contractor, see section 9.

If the debtor is an employee,

• immediately determine the garnishable salary of the employee;

• determine the amount to be paid to the court or PEA (see calculation examples in Appendix A and, where necessary seek advice from the Department of Justice regarding requirements of provincial law);

• if the net amount of the garnishable debtor's cheque is insufficient to satisfy the amount due to the court or the PEA, determine which voluntary deduction(s) should be suspended. Refer to section 8.6.;

• immediately inform the employee that a garnishee summons has been received requiring the department or agency to remit a portion of his or her pay to the court or the PEA. If required, consult the employee to determine which voluntary deduction should be suspended. If the employee disputes the garnishment, inform him or her that until the summons is withdrawn by order of the court, you are required by law to remit the money to the court. In all instances, confirm personal interviews with the employee in writing; and

• to ensure that the garnisheed money is available within the prescribed time limits, the direct pay deposit service may have to be suspended; if so, notify the employee.

8.5. Debtor is not an employee or a contractor

If the department has no record of the debtor, or if, on the basis of the information provided, the debtor cannot be satisfactorily identified, the garnishee contact must quickly inform the Department of Justice office that forwarded the documents, as section 6 of the Act binds Her Majesty 15 days after the day the documents are served.

If the debtor was, but is no longer an employee or contractor with the department or agency, the garnishee contact must quickly inform the Department of Justice office that forwarded the documents and provide the particulars of departure, such as the date of retirement or resignation, or the date of transfer and the name of the debtor's new department.

8.6. Procedures to withhold and remit amount to the Court

If the debtor is a contractor, see section 9.

If the debtor is an employee,

• refer to the relevant Compensation and Receiver General directives;

• re-confirm the amount to be paid to the court (see calculation examples in Appendix A);

• when the net pay is insufficient to cover the garnishment amount, cease some or all of the employee's voluntary deductions. There will be no retroactivity on the reinstatement of the deductions.

The following compulsory deductions do not form part of salary for garnishment purposes and, consequently, must not be stopped:

• deductions for debts due to the Crown under the FAA such as salary overpayment, repayment of Canada Student Loans and income tax arrears (see section 5 (c) of the Garnishment and Attachment Regulations);

• Canada Pension Plan/Quebec Pension Plan contributions;

• contributions made under the PSSA, also including deficiencies and arrears for elective service;

• Death benefit contributions;

• Employment Insurance premiums (formerly UI);

• federal and provincial Income Tax;

• union dues (but not any other amount deducted and payable to the union, such as insurance premiums);

• provincial health care premiums; and

• Disability/Long Term Disability insurance premiums.

Note :

Refer to section 5 of the Garnishment and Attachment Regulations as the list above is not all inclusive.

Voluntary deductions form part of salary for garnishment purposes. Consequently, some or all of them must be stopped to satisfy the court order when the net pay is insufficient:

Discretion must be used in deciding which voluntary deductions should be suspended. The employee, when possible, must be consulted. If the net amount of the pay cheque is short by a small amount, a small voluntary deduction should be suspended; if short by a large amount, a large voluntary deduction such as a credit union or a Canada Savings Bonds deduction should be temporarily suspended. Deductions for voluntary insurance plans should be suspended only when it is absolutely necessary to do so to satisfy the amount of the garnishee summons or if the employee so directs. When voluntary deductions have been suspended and a garnishee summons is withdrawn by order of the court, the stated deductions will not have been made. The employee will, as a result, receive a larger cheque than normal and will have to take care of his or her own voluntary payments for that pay period.

Example of some voluntary deductions:

• Canada or Quebec Savings Bonds;

• CS CO-OP and Credit Unions;

• Charitable donations;

• Union insurances;

• Public Service Health Care Plan; and

• PSMIP (except Long Term Disability).

• The amount to be paid to the court or the PEA must be withheld from the second pay period next following the pay period in which the summons was binding.

• Moneys must be in the hands of the court or the office indicated in the garnishee summons within 15 calendar days after the last day of the pay period in which they were withheld. The cheque must clearly identify the garnishee summons, including the names of the parties and the court file number. The balance due to the employee must be made available on the official pay day.

Example:

• a summons was served at the Department of Justice on Monday, May 12, 1997.

• The summons was binding on Tuesday, May 27 1997 (15 days after the day the documents were served).

• Moneys must be deducted from the pay cheque dated Wednesday, June 25, 1997 (last day of the second pay period next following the pay period in which the summons was binding).

• Moneys must be paid to the court within 15 days: from June 26 to July 10, 1997 inclusive.

8.7. Adjustment or termination of a garnishment order

The Department of Justice will provide written instructions advising if it is a one time or a continuing garnishee summons. A continuing garnishee summons cannot be adjusted or terminated while the debtor remains an employee in any organization listed in Part I, Division 1 of the GAPDA (see section 2 for list), unless you are ordered by the court or advised by the Department of Justice to do so. When it is anticipated that the summons amount will be completely recovered or that the summons will soon expire, confirm this by telephone with the appropriate court before stopping the garnishment deduction, and notify the court in writing with a copy to the Department of Justice.

If an employee moves to another organization covered under Part 1, Division 1 of GAPDA, the garnishee summons is still in effect. Arrange to transfer the active garnishee file and ensure that no garnishee payments are missed in any pay period. The Department of Justice must be notified, in writing, of the organization change.

If an employee retires or moves to a private or a public organization not covered by Part I, Division 1 of the GAPDA, notify the Department of Justice and the court of the termination date and advise them, in writing, as to when final payments subject to garnishment will follow.

9. Debtor is a Contractor

Upon receipt of a garnishee summons:

• immediately notify those responsible for administering the contract that a garnishee summons was received and that no moneys are to be paid to the contractor without first getting clearance from the garnishee contact. When a common service agency has entered into a contract on behalf of a client department, the client department administers these procedures;

• immediately inform the Department of Justice that the debtor is a contractor as the time limits for acting on a garnishee summons are more stringent in the case of a contractor and the amount that may be seized is different than that for an employee;

• determine the amount payable to the court or the PEA. All fees are garnishable except moneys specifically identified in the contract as cost reimbursements; and

• immediately inform the contractor that a garnishee summons was received requiring the department or agency to pay to the court or the PEA some or all of the contractor's fees.

During the period between the date the garnishee summons is served on the Department of Justice and the date Her Majesty is bound by the garnishee summons (15 days after service of documents), authorize only payments to the contractor for services already performed. No advance payments may be made without prior clearance from Department of Justice, even if called for under the contract.

Withhold all garnishable fees becoming payable on the fifteenth day following the day on which Her Majesty is bound by the summons, (i.e. the thirtieth day after receipt of the garnishee summons), and

• when the summons has continuing effect, withhold any garnishable fees that subsequently become payable, or

• when the summons has no continuing effect, withhold any additional garnishable fees that become payable⁽¹⁾  in the following 30 days, except for the amounts that are payable in this 30 day period that became owing⁽²⁾ after the first 14 days of this period.

Garnisheed moneys must be in the hands of the court or the office indicated in the garnishee summons within 15 calendar days after they are garnisheed. The cheque must clearly identify the garnishee summons, including the names of the parties and the court file number.

10. Confidentiality

Information relating to garnishment is highly confidential. It must be kept in a separate file to avoid misuse of the information to the detriment of the employee. This information is not normally considered in relation to an employee's work performance but it may be a factor where security or reliability screening is required in relation to a particular position. The GAPDA specifies that "no employee may be dismissed, suspended or laid off solely on the grounds that garnishment proceedings may be or have been taken with respect to him/her."

11. Transfer or disposal of records

When an employee moves within a department, to another department or to another government organization covered by Part I, Division 1 of the GAPDA, only information pertaining to active garnishments should be transferred. This information must be contained in a separate file and be sent through Personnel to the attention of the appropriate garnishee contact.

Information pertaining to inactive garnishments must be kept for six years.

12. Enquiries

Enquiries concerning these procedures should be directed to your departmental Compensation Manager at headquarters. Departmental compensation managers should contact:

For enquiries concerning GAPDA:

Contact the Department of Justice at (613) 957-4885.

Appendix A - Examples of Calculations

Assume that the appropriate office of the Department of Justice received a garnishee summons for a commercial debt of $400 on July 21, 1997 in pay period #15. The summons is binding on August 5, 1997 in pay period #16. The summons must be actioned for pay period #18 ending September 3, 1997. The moneys must be in the hands of the court by September 18, 1997. An example of the calculation follows. The example is based on a cheque gross amount of $1551.87 and $609.25 net pay (see appendix B for payroll details).

1. Calculation of garnishable salary

Garnishable salary = gross salary (including allowances unless specifically exempted under 5(f) of the Garnishment and Attachment Regulations) less compulsory deductions.

Must be actioned for pay period #18 (August 21 to September 3, 1997)

Garnishable salary = $1,551.87 - $483.16 (compulsory deductions) = $1,068.71

2. Calculation of maximum garnishable amount based on provincial law.

In Ontario, a maximum of 20% of the garnishable salary may be garnished for commercial debt, however, a lesser fixed dollar amount may be requested by the court.

Therefore: $1,068.71 x .20 = $213.74 which is the maximum garnishable amount.

Since the garnishee summons was for $400 and the maximum garnishable amount is $213.74, only $213.74 can be remitted to the court. Follow the instructions received from the Department of Justice to determine whether the garnishee summons is ongoing or not.

3. Requisition two cheques as follows:

Pay Period 18 (August 21 to September 3, 1997)

Note 1

Subject to the provincial law, any supplementary payments received during the pay period under attachment are also subject to garnishment if required to satisfy the judgement (e.g. overtime or retroactive pay).

Note 2

A garnishee summons may state that a fixed percentage pay deduction be forwarded to the court on an ongoing basis, e.g. a family maintenance order.

Since an employee's garnishable salary usually changes with each pay cycle, the garnishable salary of an employee paid bi-weekly should be calculated for both pay cycles and averaged to determine the amount to be deducted from each pay.

Where the garnishable amount changes as the result of a variation in the gross or extra duty allowance payable to the employee, the amount being deducted would have to be adjusted accordingly.

This procedure is subject to the provision that in all circumstances the garnishee summons with respect to the amount to be paid must be complied with.

Using example (1) to demonstrate the method for determining garnishable salary over two pay cycles, the calculations would be as follows:

(a) Assume, instead, that a Family Support Order requires 50% of the garnishable salary to be remitted to the Ontario Provincial Enforcement Agency because the debtor owes $5,000 in arrears payments with on-going support payments of $400 per month.

(b) Pay period #18 (August 21 to September 3, 1997)

(c) Pay period #19 (September 4-17, 1997)

(d) Add garnishable salary for each pay period:

$1,068.71 + $1,062.85 = $ 2,131.56

(e) Divide total garnishable salary by 2:

$2,131.56 / 2 = $1,065.78

(f) Multiply by 50%: $1,065.78 x .50 = $532.89

The amount to be remitted to the Ontario PEA, per pay period, will be $532.89. An ongoing garnishment deduction of this amount could be established in the pay system.

If an extra duty payment was received, an additional amount would be recovered as follows:

Additional amount to be remitted to the Ontario PEA = $ 100 x .50 =$50

This would require requisitioning a payment of $50 for the employee and remitting an additional $50 to the Ontario PEA.

Appendix B - Payroll information relating to calculations

Appendix C - Checklist

For Use on receipt of a garnishee summons by Garnishee Contacts and Others Involved in the Garnishment Process

1. Determine if debtor is an employee or a contractor.
2. Start a garnishment log and checklist.
3. Start a file with employee's or contractor's name.
4. If the debtor is an employee:

1. determine which pay cheque/direct pay deposit is garnishable;
2. determine amounts to be paid to the court or the provincial enforcement agency (PEA) and to the employee; check whether the net pay is large enough; if not, determine which voluntary deduction(s) should be suspended;
3. notify the employee (confirm in writing);
4. initiate required pay action(s);
5. if necessary, suspend voluntary deduction(s) and direct pay deposit;
6. if necessary, advise Finance to hold the pay cheque or request a recall or intercept on direct pay deposit;
7. if manual intervention is required on initial garnishment recovery, requisition two cheques (one for the court or the PEA and one for the employee). If not, make arrangements for a cheque to be issued to the court or the PEA;
8. ensure that the employee's cheque/direct deposit is available on pay day and send the cheque to the court or the office indicated in the garnishee summons. If appropriate, make arrangements for future cheques to go to the Court or the office indicated in the garnishee summons; and,
9. B.F. to stop the garnishment deduction in the appropriate pay period.

If debtor is a contractor:

1. notify the Department of Justice by telephone that the debtor is a contractor;
2. notify the contractor;
3. withhold all payments to the contractor except those payable for services already performed during the first 15 days after the garnishee summons was served on the Dept. of Justice; and,
4. take action to ensure all fees will be made payable to the court or office indicated in the garnishee summons until the garnishee summons is satisfied.

_____________________

(1) Payable means a payment for which a certificate under Section 33 of the Financial Administration Act has been or can be properly issued. This is the certificate which states that the work has been performed and is in accordance with the contract (versement payable). [ Return ]

(2) Owing means a payment of fees in respect of which the work has been performed in accordance with the contract but, under the terms of the contract, is not yet payable (versement exigible). [ Return ]