My philosophy is simple. I take steps my competitor’s don’t do to save my client’s time and money.
Marshall Yarmus – Owner of Civil Litigations
There are many different stages to a small claims court proceeding. Knowing what forms to complete and how to represent yourself at each stage can be confusing, frustrating and time consuming. Our firm can help you. Our paralegals can prepare the correct forms, issue with the court, serve all judgment enforcement forms, and you represent you at any judgment enforcement hearing through the Small Claims Court.
If you need to hire a knowledge, experienced paralegal, please contact us. We would be proud to help you recover money.
The following is only an overview of the judgment enforcement options. It is not meant be all the information you need to know if you represent yourself. There have been numerous books written on the art of judgment recovery. A few of those books and online resources are recommended at the bottom of this page.
Make no mistake about it judgment recovery is an art form. Complicated cases require skill, lots of knowledge and experience to collect judgments.
What judgments can be collected through the small claims court?
Any judgment of the Ontario Small Claims Court can have enforcement action taken. The Small Claims Court can also be used to collect judgments issued by other tribunals, boards or courts provided the principal amount of the judgment does not exceed the current $25,000.00 small claims court jurisdiction.
Examples of other judgments that can be collected though the Small Claims Court include judgments made under the Residential Tenancies Act at the Landlord and Tenant Board, under the Employment Standards Act, judgments of other tribunals or boards pursuant to the Statutory Powers Procedure Act, and money judgments made under certain sections of the Criminal Code of Canada.
Judgments of other provinces or territories of Canada may also be collected through the Ontario small claims court pursuant to the Reciprocal Enforcement of Judgments Act.
Does my Judgment Expire?
If you obtained a judgment by an Ontario court or tribunal on or after January 1, 2004 that judgment never expires. See the Limitations Act, 2002, Section 16(b).
Some judgment procedures require a judge’s order to allow you to enforce a judgment more than six years old. There is also now a court fee to order an older court file from archives that is stored off site of the small claims court.
A judgment may however be set aside by a court, be stayed pending an appeal, or stayed if a filing is made under the Bankruptcy and Insolvency Act.
Do I need to know the current address of the judgment debtor (Defendant)?
You must have a current address for the Defendant in order to take enforcement proceedings. Some types of enforcement proceedings require you to transfer the judgment to the Small Claims Court in the jurisdiction where the Defendant currently lives or operates a business.
Our firm uses skip tracers and other methods to locate your Defendant.
Can all Judgments be collected?
No. If the debtor has no assets or no reliable source of income it is almost impossible to collect a judgment.
What is the best method for you to collect on your judgment?
The best method varies from case to case. It largely dependant on what information you have against the judgment debtor (Defendant), what assets the judgment debtor has, and how much money or time are you willing to invest to collect the judgment.
What is a Writ of Seizure and Sale of Lands?
A Writ of seizure and Sale of Lands acts like a lien against real estate owned by the debtor in the jurisdiction in which it is filed with the sheriff. This will prevent the debtor from selling the property or obtaining a mortgage from a new lender without paying off the judgment in full with interest.
You should do searches to confirm that the properly is actually owned by the judgment debtor, and that the name of the owner of the properly matches the name you have judgment against. Searches can also be done to locate hidden real estate registered in the debtor’s name in the Province of Ontario. To hire us to do a hidden real estate search you should have a date of birth of the individual debtor. If the debtor’s name is a common one, often further searches will be needed to confirm the date of birth of the individual who purchased the property is the same as your debtor.
What I have referred to as a lien is actually an execution filed against a name in the jurisdiction where the debtor owns property in accordance with the Executions Act. The execution is not registered on the title of the property, so if the debtor owns multiple properties in the jurisdiction it is filed, the Writ of Seizure and Sale of Lands acts as a lien against all those properties.
If the debtor owns properties in different cities or towns in Ontario, you can issue multiple Writs of Seizure and Sale of Lands with the Small Claims Court, and file the writs with each of the proper sheriff’s office.
A Writ of Seizure and Sale of Lands will expire six years after issue. It can be renewed before or after expiry, but as stated elsewhere, you will need a judge’s order to issue or renew a Writ of Seizure and Sale of Lands if the Small Claims Court judgment is more than six years old.
A Writ of Seizure and Sale of Lands can be filed even if you don’t believe the debtor owns any real estate. A writ is filed under these circumstances pursuant to the Creditors’ Relief Act, 2010. https://www.ontario.ca/laws/statute/10c16b
Take a close look at the act. In many circumstances (but not all,) the act essentially states if one creditor is able to find assets of the debtor and files a garnishment in the Superior Court of Justice, if the money comes into the hands of the sheriff, that money will be split equally amongst all plaintiff/creditors of that same debtor who have filed either a Small Claims Court Writ of Seizure and Sale of Lands with the sheriff in that jurisdiction or who have filed a Superior Court of Justice garnishment.
What is a Garnishment?
A garnishment is a method to collect a judgment when you know who owes the debtor money or will owe the debtor money. The most common monies garnished are either wages or bank account(s).
A Notice of Garnishment is a form issued by the Small Claims Court. Is a legal document when properly issued and served by you or your paralegal. It legally requires the party who owes the money, called a Garnishee, to pay all the money it owes to the debtor or all the money it is holding on behalf of the debtor to the court within ten days of service of the Notice of Garnishment.
If the Garnishee does not pay the full amount of the judgment to the court within 10 days of service it is legally required to file with the court and serve you the creditor, or your paralegal with a document called a Garnishee Statement. This document advises the creditor of what money is owed or will become owing, if no money is owed and no money is expected to owing, as well as other information.
If the full amount of the judgment is not paid to the court and no Garnishee Statement is served and filed by the Garnishee, then the creditor may request a Garnishee Hearing before a judge. At the Garnishee Hearing the court may order judgment against the Garnishee.
Taking a step back, it is very important for the creditor to do the proper government searches to determine the proper legal registered name of Garnishee e.g.: an employer. Too often self-represented creditors fail to do this search. The only recourse if the Garnishee fails to pay money into court and fails to serve and file a Garnishee Statement is for the creditor to try to obtain a judgment against the Garnishee.
A judgment obtained against a Garnishee is worthless if it is not in the proper registered corporation name or proper registered corporate trade name.
If a creditor knows where the debtor has a bank account, they may issue a Notice of Garnishment to that bank. In order to do this the creditor must know the proper legal name of the bank, trust company, or credit union, as well as the home branch where the account is actually located.
If a Notice of Garnishment is issued and served on a particular bank branch, the bank, now a Garnishee, is required to pay all money to the court it has on the deposit for the debtor at that branch. The Garnishment applies to all accounts the debtor has at that branch.
If there is a joint bank account at the Garnishee branch, then the bank must pay 50% of the money held in a joint bank account to the court. Check the Rules of Small Claims Court for extra duties imposed on the creditor if you receive a Garnishee Statement advising of a joint bank account.
A Notice of Garnishment will expire six years after issue. It can be renewed before or after expiry, but you will need a judge’s order to issue or renew a Notice of Garnishment if the Small Claims Court judgment is more than six years old.
What is a Judgment Debtor Examination?
A Judgment Debtor Examination is a hearing where the creditor or the creditor’s paralegal has the right to ask the debtor almost anything about the debtor’s past, present, and future ability to pay the judgment.
The hearing is conducted in front of a Small Claims Court judge. The debtor is required to swear an oath to tell the truth. The proceedings are recorded by the court. The creditor can obtain a transcript of the hearing for a fee.
The hearing is held in private unless the judge orders otherwise.
If the debtor is an individual, they are also required to fill out a form called a Financial Information Form. This completed form must be served on the creditor before the hearing. The Financial Information Form gives the creditor very basic information about the debtor’s income, assets, and liabilities. The form itself is not a sworn statement.
It is up to the creditor or the creditor’s legal representative to ask the debtor very detailed questions about their ability to pay the judgment. Many self-represented creditors are unwilling to ask the debtor the tough questions, or don’t know the right questions to ask. Additionally, like cross examination at a trial, many self-represented creditors do not know how to deal with a witness that is being evasive or who is outright lying.
In a very general sense the Rules of the Small Claims Court allow a creditor or their paralegal to ask the debtor about: the reason for non-payment, the debtor’s income and property, the debts owed to and by the debtor, the disposal the debtor has made of any property either before or after the order was made, the debtor’s present, past and future means to satisfy the order, whether the debtor intends to obey the order or has any reason for not doing so, and any other matter pertinent to the enforcement of the order.
At the end of the hearing the parties may agree on an amount for the debtor to pay the creditor on a monthly basis. Even if there is no agreement as to monthly payments the creditor may ask the judge for an order for monthly payments.
Why wouldn’t a creditor always want an order for monthly payments? Once an order for monthly payments (or periodic payments as it is referred to in the court’s rules) is made and until it terminated by the creditor due to default, the creditor cannot take any other enforcement action with the exception of filing a Writ of Seizure and Sale of Lands. Due to the limited scope of this overview of the judgment enforcement procedure, check with the court, hire a paralegal, or refer to the Rules of the Small Claims Court for the forms and procedure that a creditor must take to terminate a court ordered periodic payment plan.
The reason you as a creditor are seeking as much information as possible from the debtor at this hearing, is that if the debtor fails to make monthly payments as ordered, you now have all the information you need to take other enforcement action(s).
The creditor may also ask the judge for orders to review the debtor’s ability to pay at some future date, and orders for the debtor to produce and disclose documents that will assist the creditor in verifying information obtained under oath, and/or give the creditor more information about the debtor’s ability to pay the judgment.
The most common documents creditors seek orders for production for include: pay stubs, income tax returns or CRA notices of assessment, proof of receipt of social assistance, and bank statements. Be creative. Ask for anything you think will assist you. The worst thing that can happen if you ask for too much or your request is unreasonable is the judge will say no. I am not going to order that.
If a debtor willfully fails to either attend an examination hearing, to produce documents as ordered, or refuses to answer questions under oath, this can lead to them being found in contempt of court, and a warrant for their arrest to issue. See the Rules of the Small Claims Court or hire a paralegal for more information on the steps and procedures involved.
What is a Writ of Seizure and Sale of Personal Property?
I will spend less time on this enforcement method as in my opinion it is both the least effective method to collect a judgment and can be the most expensive. The Notice of Writ of Seizure of Personal Property is often a form issued by a self-represented party without knowing all that is involved.
You may issue the Writ of Seizure and Sale of Personal Property form with the Small Claims Court, and file with the form with Sheriff in the jurisdiction where the debtor lives or carries on business. You can then file the form Direction to Enforce Writ of Seizure and Sale of Personal Property.
In the direction form you must provide the sheriff very specific information of where to locate assets and what specific property you want the sheriff to seize and sell.
Why do I rarely use this enforcement method?
First, you must provide the sheriff with a money deposit to cover anticipated expenses of seizure, freight, storage and sale of the goods. The deposit may be as little as a $1,000.00 or be may be many thousands of dollars depending on what you want seized. Check with the sheriff’s office to find out the deposit needed for what you want seized. An additional deposit may be requested if the funds are all used on expenses before the property is sold at auction.
Secondly, the sheriff has no power to enter the principal residence of the debtor, unless it meets an exception set out in the Execution Act, or the creditor has obtained a specific judge’s order allowing the sheriff to use reasonable force to enter the principal residence of the debtor. See: the Execution Act for more information. https://www.ontario.ca/laws/statute/90e24
A sheriff does have the power to enter into a business though.
I have clients that want me to direct the sheriff to seize and sell a car or truck found outside a residence. The sheriff does have the power to do that. However, who owes that car? Is there a lien registered against the car? Is the car leased? What is the current value of the car?
If you want the sheriff to seize and sell a motor vehicle you will need to have searches done and produced to the sheriff to show: the vehicle is wholly owned by the debtor and no one else, there are no liens on the vehicle by a finance company, in some cases for older vehicles you will need to prove that the vehicle will obtain enough money at auction that it will exceed all the sheriff’s expenses.
Generally, I have found a new vehicle is either leased or has a financing lien registered against it. If it is an older vehicle either the sheriff will refuse to seize it, or if seized and sold the vehicle may fail to obtain enough money at auction to cover all the sheriff’s expenses which you are liable.
Going back to the discussion under Writ of Seizure and Sale of Lands, you must also be aware of the Creditors’ Relief Act, 2010. https://www.ontario.ca/laws/statute/10c16b Are there other creditors who have filed an execution with the sheriff which makes them (in most cases) entitled to an equal portion of any excess funds obtained by the sheriff after expenses are paid?
Unless there is an exception in the Execution Act or its regulations the sheriff cannot seize the following:
- clothing (up to a certain amount);
- household furniture, utensils, equipment, food and fuel (up to a certain amount);
- tools and instruments used in the debtor’s business (other than tillage of the soil or farming) (up to a certain amount);
- tools, books and instruments used for the tillage of the soil or farming and livestock, fowl, bees and seed (up to a certain amount); and
- one motor vehicle worth less than the specified amount.
The proceeding information was only an overview of the judgment enforcement options. It is not meant be all the information you need if you represent yourself. There have been numerous books written on the art of judgment recovery. A few of those books and online resources of information are recommended at the bottom of this page.
Civil Litigations offers a free in office initial consultation in order to better understand and evaluate your legal service requirements. The Law Society of Upper Canada’s rules require that paralegals offer services at the same high standard as lawyers. Our paralegals are licensed by the Law Society of Upper Canada to provide paralegal services in Ontario Canada. Contact us if you require our services.
What other sources of information do you recommend?
Information found Online
Rules of the Small Claims Court
Small Claims Court Booklet – “After Judgment – Guide to Getting Results”
Books you can Buy
Ontario Small Claims Court Practice 2018 Authors: (Justice) Marvin A. Zuker and (Deputy Judge) Sebastian Winny
Bennett on Collections, 6th Edition Author: Frank Bennett
Ontario Small Claims Court – A Practical Guide Author: Michael O. Mungovan
How To Win and Get Paid In Small Claims Court Author: Daniel D. Hall