Enforcement of Orders
What is enforcing an Order All About?
Some people think that when a trial or hearing is over and the decision is made, the winner will be paid and that is the end of the matter. Unfortunately, that is not always the case. Sometimes, getting a judgment is just the beginning of a long process.The Court hearing the case will render a judgment and make an order. A judgment declares who wins the case and often contains reasons why the judge decided as he or she did. In the judgment, the judge also orders exactly what is owed to whom.
Collecting money is not the court's responsibility and successful parties do not simply “pick up a cheque” at the courthouse. If the party against whom an Order has been made (the debtor) does not voluntarily pay, it is up to the person seeking to get paid (the creditor) to enforce the judgment and collect the money.
If legal collection is necessary, the courts have some procedures you can use to collect the money. These are tools to enforce the judgment, but it is up to you to use them.
Enforcement of judgments must be through the Court of Queen's Bench. The judgment is valid for ten years and, if registered with the Court of Queen's Bench, can be renewed for further periods of ten years. The same enforcement procedure applies to Small Claims Orders, Rentalsman Orders, Labour Standards Certificates, and Restitution Orders.
Enforcing a judgment is not free. Even if you do not use a lawyer, you will have to pay court fees. Although some of the costs are added to the amount the defendant owes you, you have to pay those costs initially.
How Do I Collect on an Order?
There are two different options available – Writs of Execution and Garnishment.
Writs of Execution
Writ of Execution – this permits items (other than land) to be seized by the Sheriff’s Office and sold. The funds are paid out to the creditor later. The Sheriff is a court officer empowered to enforce court orders. The Sheriff’s Office is located in the same building as the Local Registrar’s Office.
There are two documents that must be completed in this process – a Writ of Execution (which is signed, sealed and sent to the Sheriff’s Office) and a Praecipe For Writ of Execution (provides the information needed to obtain a Writ and remains on the court file to indicate a Writ has been issued).
Only one Writ can be issued for the lifetime of the Judgment or Order. It can be renewed every ten years if the Judgment or Order is renewed. Generally, it can only be discharged (ended) when all the money owing is paid.
If the value of the Judgment/Order totals $100.00 or more, fill in “Goods and Lands” in the space provided in the Praecipe and Writ. If the value of the Judgment/Order totals less than $100.00,the Writ can only be issued against “goods”.
The Writ of Execution should be registered with the Personal Property Registry at:
260 - 10 Research Drive,
Regina, SK. S4P 3V7
Tel: (306) 787-6787
Fax: (306) 787-8187
This is done using a financing statement. After the Writ of Execution is registered with the Personal Property Registry, it is then downloaded into the Saskatchewan Writ Registry. Once in the Saskatchewan Writ Registry, the Writ of Execution can be registered as an interest against titles by filling out the appropriate form available from Information Services Corporation of Saskatchewan.
Garnishment
Garnishment – this allows a creditor to pursue the debtor’s wages, bank accounts and any other money that someone might owe to the debtor.
There are two documents that must be completed to start this process – the Garnishee Summons and the Affidavit for Garnishee Summons. There are two types of Summons to choose from – “For Wages Only” or “Other Sources” – depending on the situation. The Affidavit accompanies each Summons you use, but there is only one form of the Affidavit.
A Garnishee Summons is not continuous – it is usually only good for one pay period. This process may have to be repeated several times in order to collect the full amount of the Judgment or Order. It must be noted that under the Saskatchewan Attachment of Debts Act, a person is allowed to claim exemptions for the wages paid into Court. The law allows the debtor to keep a monthly minimum plus a sum for each dependant. Further, income from government social programs like social assistance, pensions and employment insurance cannot be garnished. Some excemptions exist for the enforcement of maintenance orders.
If the person you are pursuing is an employee of the Provincial or Federal Government, special rules apply. Please refer to section 6 of the Saskatchewan Attachments of Debts Act for further assistance regarding Saskatchewan Government employees.
To Garnish Wages:
- A copy of the Garnishee Summons must be served on the employer within 5 days before the wages are paid. If you miss this period, you will have to prepare and complete another Garnishee Summons and Affidavit.
- A copy of the Garnishee Summons must be served on the debtor within 20 days from the date the employer was served.
- Once served, the employer has 20 days to “reply to the court” by paying the money into the court or by stating why they are not making the payment. The creditor will have to check with the Local Registrar’s Office to see what reply was received, if any. When calling, quote the Court File Number (QBG__ of 200_) shown at the top of the document.
To Garnish Other Sources of Money:
To garnish other sources of money, including bank accounts, the same process as above is followed. The bank holding the account must be served on a day when there are funds in the account. The debtor must be served within 20 days of that. A reply is required within 20 days of being served. Since the funds are not wages, no exemptions are available to the debtor.
The Money Collected Has Been Paid Into Court. How do I Get the Money?
The funds received from garnishment and seizures are kept by the Court. There are two ways that the money can be paid out to you – by consent or by application. Both will require additional forms.
By Consent
A Consent Form must be signed by the Defendant. This can be done at the Local Registrar’s Office with all the parties present. The Consent form must be witnessed by an adult who is independent of the action. The witness must then complete and swear an Affidavit of Execution. This may be done at the Local Registrar’s Office or before any Commissioner for Oaths or Notary Public.
By Application
An Affidavit of Service of the Garnishee Summons must be filed with your application for payment out at the Local Registrar’s Office. The Court needs sworn proof that all the parties have been served with the Garnishee Summons.
Two months after the money has was paid into court, an application for payment out can be made if you have garnisheed wages. It is a ten day waiting period on other sources. A creditor may choose to wait to have the money paid out until the total amount of the Order is collected.
The Sheriff’s Office will hold funds from a seizure for 60 days. The Sheriff’s Office may have to pay the funds out on a pro rated basis if there are multiple creditors.
How Do I Start?
- Knowing which of these options to choose means knowing what property or assets the debtor (the person who owes you money has). If don’t know what that person owns, you may need to have an "examination in aid of execution". This is a legal proceeding for which you will usually need a lawyer.
- Wait 30 full days from the date shown on the bottom of the Certificate of Judgment or Order of The Rentalsman to allow the unsuccessful party time to appeal. If the 30th day falls on a weekend or statutory holiday, then the 30th day is considered to be the next day the Local Registrar’s Office is open. If you are enforcing an order from the Court of Queen’s Bench, you do not need to wait 30 days and can begin enforcement immediately.
- Take the Certificate of Judgment or the Order of The Rentalsman to the Local Registrar’s Office at the Court of Queen’s Bench location nearest you for filing.
- At the time of filing the Certificate or Order, you can also file the documents needed for collection, as explained above.
- Costs of enforcement:
The are a number of fees that are charged in the enforcement process including filing (registering) costs, issuing (processing) and deposits at the Local Registrar’s Office and the Sheriff’s Office. There are also registration fees for filing a Writ at the Personal Property Registry. For specific information, contact your nearest Local Registrar’s Office.
Where Can I Get Sample Documents?
Some Local Registrar’s Offices may have samples available.
Where Can I Find More Information?
Enforcement of a Judgment or Order can be a complicated process. You may wish to contact a lawyer for assistance.
Additional information is available from the Saskatchewan Public Legal Education Association .
What If I Have an Order From Out of the Province
An order, decree or judgment requiring a person to do something or pay money resulting from civil proceedings held in the court of another Canadian Province or Territory can be enforced in Saskatchewan by registering it here. Once a certified copy of the judgment and an affidavit is filed with the Local Registrar’s Office, it may be enforced as if it were a judgment of the Court of Queen’s Bench for Saskatchewan.
Excepted from this are orders, judgment or decrees:
- For maintenance or support,
- For child custody and access,
- For probate or administration of an estate,
- For fines or penalties
- From out of province tribunals ordering anything other than the payment of money.
In some of these matters, specific legislation or procedures govern the enforcement of these orders. For more information about registering out of province orders or orders from outside of Canada, contact your nearest Local Registrar’s Office.
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