Some people think that
when the trial is over and the judge's decision is made, the winner
will be paid and that's the end of the case.
for some it's just the beginning.
Getting a court
order is one thing, but getting your money, or whatever the judge
says you're entitled to, is another matter.
That's what this
booklet is about. It will answer some questions about what happens
after you've got your court order. And if you've lost your case and
have to pay, it will tell you what some of your options are.
If I win my case, will the
court collect my money for me?
No. Collecting money is
not the court's responsibility. The court has a number of procedures
you can use - tools that are available to you - but it's up to you
to use them.
What do I do once I have my
Whether your payment order was made by a judge
after a trial or settlement conference, or whether you got it by
default, the order first has to be put in writing. The small claims
court registry staff can help you with this. Then you give it to the
registry, where it will be signed and entered in the court records.
This is called "filing" the order and it must be done before you can
take any steps to collect on it.
After that, the
first thing you should do is send a copy to the debtor with a letter
asking for prompt payment. Be sure to include the address where
payment may be made. Set a reasonable deadline, taking into account
whether payment will likely come by mail, and other circumstances
you may know about.
If that doesn't
work, you will have to take other steps to enforce your order. You
have 10 years before the order expires, but usually, the faster you
act, the better your results will be.
But I will eventually get my money won't
Probably, but maybe not. If the debtor (the one who owes
the money) simply can't pay, there isn't much you can do. But that's
not to say that you won't ever get it. The person may get a job in a
few months, for example. You still have your court order and you may
be able to collect it then.
On the other
hand, trying to collect money from a person who is really determined
not to pay, can be a losing battle. It can cost you more - in time
and money - than the case is worth.
Many people do
want to pay their debts, especially if they are given time to do so.
Others may be persuaded to pay if you are persistent in your use of
the rules and procedures provided by the small claims court.
What happens after the payment order is
It used to be that the payment order was the end of the
judge's involvement, unless the creditor came back to take some
enforcement action. Now under the current rules, the judge will try
to increase your chances of being paid by setting a reasonable
timetable for payment.
payment order is made - whether at a settlement conference or at the
end of the trial - the judge asks whether the debtor needs time to
If the answer is
"Yes", the debtor will be asked to suggest a payment schedule. A
person might say, for example, "I can pay that in 30 days." Or, "I
could pay $100 on Friday and $200 a month until it's all paid."
These are only examples. Whatever the proposal, it should be one
that the debtor can handle, and that is reasonable from the
creditor's point of view.
The judge then
asks whether the creditor agrees with the suggested schedule.
If so, the judge
will make the order, called the "payment schedule" in the terms
proposed by the debtor.
If not, the
a) order a payment hearing, which means that the creditor
do anything to enforce the payment order until after the
b) order a payment
schedule without the creditor's consent, if the creditor is
being unreasonable in refusing to accept the debtor's proposal, or
order any payment schedule at all, which means the debt is due
What can the creditor do if the debtor doesn't
If the debtor does not pay, the creditor has a number of
options. The most commonly used are:
a) a payment hearing
b) garnishing wages or bank accounts
c) seizure and sale of goods by the court bailiff
d) a default hearing (if there was already a payment
schedule in effect)
e) registration against land.
We will talk
about each of these procedures in turn.
The payment hearing
What is the purpose
of a payment hearing?
hearing gives both the court and the creditor information about the
debtor's financial situation.
It may be that
the creditor will want to issue a garnishing order and needs to know
where the debtor works or banks.
Or it may be
that the debtor wants to pay by instalments. In that case, the
payment hearing gives the court the information needed to make the
If the debtor's
address is a post office box number, the creditor should find out at
the payment hearing where the person can be found - in case a
summons, for example, has to be served personally.
It is likely a
good idea for a creditor to try and find out as much as possible
about a debtor's employment and bank accounts in case this
information becomes necessary. Read about the other procedures in
this booklet and come prepared to ask the debtor questions about his
or her employment, about any motor vehicles or land owned by the
debtor, and about all bank branches where the debtor has an account.
Where it is appropriate you can also ask questions about a debtor's
monthly income and expenses. There is a statement of finances form
available from the registry that may be helpful. Debtors can be
asked to confirm income or expenses by requesting them to bring such
items as pay slips, credit card statements and their last income tax
When is the payment hearing held?
hearing can be held at any time before the debt is paid in full.
If the judge makes a payment order after a trial or
settlement conference, the creditor or the debtor can ask the
judge for a payment hearing. It may be that it can be held the
same day. If not, a date will be set in the near future.
If the debtor has failed to pay as agreed, or as ordered by
the court, either side can come back to court and ask for a
payment hearing, whether or not there has already been one.
Or the debtor's circumstances may change so that he or she
is no longer able to meet a schedule that had been agreed to or
ordered earlier. The debtor could ask for a payment
How does a creditor ask for a payment hearing?
If you are a
creditor (that is, if you have a court order that someone must pay
money to you), go to the registry or write and tell the registrar
you want a payment hearing. The registrar will give you a summons
to fill out and will then set a date for the hearing. After the
summons is accepted for filing, you will have to personally serve or
arrange for someone else to personally serve the person who is to
come to the hearing. The notice must be served
on the debtor at least seven days before the hearing and cannot be
served outside of the province.
If the debtor is
you will want the summons to name the person who has the information
you need. You can name any director, officer or employee of the
company. If the debtor is a partnership
you can name any partner.
Once service is
done, the affidavit of service should be completed and be sworn so
that it is ready to be shown to the judge if the debtor does not
How does a debtor ask for a payment hearing?
If you are a
debtor (that is, if a court order says you must pay money to
someone), go to the registry or write a letter and tell the
registrar you want a payment hearing. The registrar will give you a
to fill out and will then give you a date for the hearing. The
notice must be served
on the creditor at least seven days before the hearing. It is
recommended that you complete a statement
of your monthly income and expenses; the form for this is
available from the registry. Give the court and the creditor a copy
of this form at the hearing.
What if the creditor does
not attend the hearing?
If you are the
creditor and you don't plan to go to the payment hearing, you should
either send a representative or let the registry know by letter that
you want the hearing to go ahead without you.
The court can
choose to hold the hearing in your absence, or to cancel or adjourn
If you are the
debtor, you must attend the payment hearing. You can be arrested for
not attending if you were served with a summons to attend, or if you
were in court when the judge ordered you to attend.
What if the debtor is not given time to pay?
If there is no
payment schedule, the full amount of the payment order is due
immediately. As soon as the order is made, the creditor can file the
order and then go ahead and enforce it.
What if a payment schedule is ordered?
If a payment
schedule is ordered, the debtor is only obliged to make the payments
in the amounts and on the dates ordered in the schedule. As long as
those payments are made, the creditor cannot do anything else to
enforce the order.
But if the
to make a payment - or makes only a partial payment - the whole
amount of the order becomes due immediately.
sued Norman, and the judge made a payment order in her favour
for $1,500. In a payment schedule, the judge then ordered
Norman to pay $100 to Lois on the 1st of each
as Norman makes those payments on time, Lois cannot do
anything to enforce the order.
he misses a payment, the whole amount is immediately due. The
amount due is the $1,500 minus whatever Norman has already
paid, plus interest.
could then garnish his bank account, for example, to collect
Can a payment schedule ever be
Yes, the court allows for changes in circumstances. A
creditor or a debtor can ask the court at any time for a payment
hearing, whether or not there has already been one. If there is
already a payment schedule in effect, the court can be asked to
cancel it or to change its terms.
Norman, in Example 1, had known that he was going to be unable
to make that month's payment - maybe he was laid off for a
couple months - he could have asked the court to change the
terms of his payment schedule. He could have asked for a
payment hearing, explained his situation to the judge, and
asked for new terms that he could handle.
be that if Lois had knows his situation, she might have agreed
to let Norman miss a payment or two. Then he could have simply
filed a consent order with the registry and he would have been
protected against any further enforcement during that time.
same token, if Lois discovered that Norman had taken a second
job and had more income than before, she could ask for a
payment hearing and ask the judge to increase the amount of
Norman's monthly payments.
What is it?
If you have a
judgment (a court order) requiring someone to pay you money, the law
provides you with a tool called "garnishment" to use if the debtor
does not pay.
Garnishment is a
way of getting your hands on money that someone else owes to the
debtor, before it goes to the debtor.
people garnish wages or bank accounts.
Norman misses one of his payments and Lois decides to
garnish his bank account. (She knows where he banks from the
last cheque he gave her.) She gets a garnishing order from the
small claims court registry, fills it out and files it. The
registry gives her the copies she needs and she takes one to
the bank and leaves it with the manager or a teller. She finds
out by calling the court registry that there was $100 in
Norman's bank account and that money has been paid into court.
Now she can serve Norman and can apply to get that money paid
Because this is quite a drastic measure, the rules are very
strict and you have to follow them exactly. The rules for
garnishment are actually contained in the Court Order Enforcement Act and they apply to
enforcement of judgments from any court.
How do I do it?
procedure in a typical case is this:
You prepare an affidavit in support of a garnishing order after
judgment. This form tells:
the details of the court order you are enforcing
the amount still owing
that someone else (the garnishee) owes money to the debtor
that the garnishee is in British Columbia, and
the address of the garnishee.
You fill out a garnishing order.
You file the affidavit and garnishing order in the court registry.
There is a fee for having someone in the registry swear the
affidavit and there is a fee for filing the garnishing
order. The registrar inserts the amount of costs you may be allowed
to collect, signs the order and gives back to you the copies you
will need for service.
You serve the garnishing order on the garnishee (that is, the bank,
or the employer, or whoever you have named in the order).
The garnishee pays the money to the court (if there is any money).
there is any money paid into court you serve the garnishing order on
the debtor and file an affidavit of service.
the rules have to be carefully followed. For example, if you don't
have the name of the garnishee exactly right, the garnishee can
legitimately ignore the order.
you are garnishing a bank account, you have to know the branch where
the debtor banks. A joint account cannot be garnished.
you are garnishing wages, you must know the correct legal name of
the employer, the address and the pay date. The date on which the
affidavit is sworn must be within seven days before the pay date.
can serve the documents on the garnishee and the debtor either
personally or by "registered" mail. If the documents are served by
registered mail, be sure to obtain a proof of service by either
phoning toll free 1-888-550-6333 and asking for a signature copy or
accessing the Canada Post Internet site at http://www.canadapost.ca/ and printing the
delivery confirmation form.
usual practice is to serve the garnishee first (so that the debtor
doesn't remove the funds) and then serve the debtor if money is paid
Unfortunately the garnishing procedure is a one-time measure
that attaches only the money that is in the bank account when it is
served or that is owed to the employee within seven days of when the
affidavit in support of the garnishing order was sworn. If you want
to repeat the procedure you have to obtain a new garnishing order
and go through all the steps again.
How do I get the money, once it's been paid
are three possibilities:
If your payment order was obtained by default (the
defendant didn't file a reply), you may apply for payment out of
the money three months after it was paid into court.
If the debtor agrees that you can have the money, he or she
can sign a consent form and it will be paid to you immediately.
Otherwise, you will serve a "notice of payment out" on the
debtor. The notice says that you will be asking the court to pay
you the money. If the debtor does nothing within 10 days, you file
proof that you served the debtor with the notice and apply to the
court for the money. Then the court pays it to you.
Do I get back my expenses?
you present your garnishing order for filing at the court, the
registrar will estimate the amount of expense that will be
Lois is garnishing Norman's bank account. The registrar
may allow fees and costs, for example:
the filing fee
serving the order on the bank
serving the order on Norman
swearing the affidavit in support of garnishing
serving Notice of Payment Out on Norman
swearing/affirming the affidavits of
If the bank pays some money into court, Lois will get
the total expenses allowed by the registrar in addition to the
money Norman already owed.
But if the bank has no money of Norman's, Lois will
probably not be reimbursed for her
Can all of a person's earnings be
The law provides for certain exemptions, depending on the debtor's
circumstances. In most cases, 30 per cent of net wages or salary,
after the normal payroll deductions, can be
Norman makes $2,000 per month at his job. His employer
deducts $200 per month for income tax and Canada Pension. That
leaves $1,800, so that the most that Lois could get by
garnishing Norman's pay cheque is $540 each month.
Employment insurance and social assistance payment cannot be
garnished, but there are no exemptions for money that is sitting in
a bank account.
What can I do if my money is being
You should immediately do one of two things. Either
contact the creditor and try to work out a payment schedule that you
can live with, or ask the registrar of the court to schedule a
payment hearing so that you can ask a judge to order a payment
schedule. If a payment
schedule is in effect, then the creditor cannot garnish again,
as long as you are meeting the terms of the schedule.
the garnishment means a real financial hardship for you, you can ask
the court or registrar to cancel the garnishing order and return the
money. If that happens, a payment schedule will be ordered.
can also ask a judge to increase the amount of your wages that is
exempt from garnishment - up to 90 per cent of the net
Seizure and sale of the debtor's
If someone has been ordered by the court to pay you money
and hasn't paid, you can ask the court bailiff to take personal
possessions belonging to the debtor and sell them at public auction.
However, the costs of this procedure can be relatively high, and
you risk paying these costs with no recovery if you do not try and
find out beforehand if the debtor has any goods worth taking.
What may be seized?
the Court Order Enforcement Act, a debtor is entitled to the
following exemptions of personal property:
Maximum Amount Allowable
Personal property of debtor
- Household goods
- Tools of the trade
- Motor vehicle
- Motor vehicle - if the debt is for the child
Principal residence of debtor
- Equity in a home - if the debtor's principal
residence is the Capital Regional District or the Greater
Vancouver Regional District
- Equity in a home - elsewhere in British
debtor is also allowed to retain all necessary clothing and required
medical aids for himself or herself or for a dependent.
debtor may choose any goods which he or she would like to exempt
from seizure and sale up to the maximum allowable amount within each
category. A debtor has two days to chose which goods he or she would
like to exempt from seizure.
addition, you may not seize anything that the debtor owns jointly
with someone else. This often means that household goods, for
example, cannot be taken.
most common items to be seized are motor vehicles and shares in a
company, although any goods that are worth taking and are not part
of the exemption can be seized. You can find out or confirm what
motor vehicles a debtor owns by sending a copy of the judgment to:
ICBC, Vehicle Records Search,
Room 154, 151 W. Esplanade St.,
North Vancouver, B.C. V7M 3H9
is a fee for this service. For more information call (604)661-2233
or 1-800-464-5050. Alternatively, a legal search service can be
used, but the fees will be higher.
To find out if there is a
lien against the debtor's motor vehicle or other personal property,
a personal property search is required. There is a fee for this
service. The search will tell you if there is a lien and who are the
secured parties. If you want information on the secured debt, you
should contact the secured parties listed on the search.
search on personal property can be conducted at your local
Government Agent office, Motor Licensing office or at:
Personal Property Registry
Ministry of Finance
9431 Stn Prov Govt
Victoria BC V8W
further information on the Personal Property Registry including the
fee for the search, contact (250) 356-8600.
What is the procedure?
the court registry and tell the registrar you want an order for
seizure and sale. You will be given forms to complete and
return. The registrar will advise you to review the list of
authorized court bailiffs and choose a court bailiff. The registrar
will issue the order and forward the original order to the court
bailiff and will give you copies of the order. Be prepared to give
the court bailiff copies of the information you received from ICBC
and the Personal Property Registry, along with a letter setting out
any other information about the debtor's goods that will
will be asked to pay a deposit to the court bailiff to cover the
estimated amount of time it will take the court bailiff to do the
What does the court bailiff do?
court bailiff must inform debtors of their exemption rights under
the Court Order Enforcement Act when he or she first visit
the debtor's home. The court bailiff will look into what assets
might be seized. The debtor will be given the chance to pay the
amount due at the time of seizure. If the debtor has an ability to
pay, the presence of the court bailiff is sometimes an effective
measure. If not, any goods worth seizing that are not part of the
exemptions may be taken away and later sold by auction, sealed bid
or other similar acceptable means.
the proceeds are used to pay the court bailiff's costs first, the
goods need to have sufficient value at an auction to pay the court
bailiff's final fee, and the various charges for such items as
towing, carting, storage and advertising. If the goods do not have
enough value to pay these costs with at least some amount left over
for the creditor, they are not worth seizing.
court bailiff will return the original order for seizure and sale to
the registry, with a notation explaining the outcome. If the
procedure is not successful, you may not be able to get the costs
you have paid to the court bailiff from the debtor.
If a payment
schedule was made after a trial or settlement conference, or
following a payment hearing, and the debtor has not lived up to its
terms, you can ask for a default
hearing. To do that, you fill out a summons
to a default hearing and submit it to the registrar. It will be served
on the debtor by a sheriff or bailiff at least seven days before the
What happens at a default hearing?
judge will ask the debtor why the payments were not made. After
listening to the debtor and the creditor, the judge
can change the terms of the payment schedule or confirm the terms as
they stand. If the judge decides that the debtor's explanation for
not paying shows contempt
of court, the judge can order the debtor to be jailed for up to
20 days. If that happens, the debtor still owes the money, even
after going to jail.
debtor who does
not show up for a default hearing can be arrested if the person
was properly notified.
Registration against land
If your debtor owns land in BC, you can register a
certificate of judgment in the land title office. This procedure can
be very effective in the long run since the debtor cannot normally
sell or mortgage the land until the debt is paid. It is also one of
the simpler and less costly procedures described in this booklet.
If you do not know whether the debtor owns land you
can do a name search at a land title office. There will be a fee for
How do I
register my small claims judgment against land?
First, ask the registrar for a certificate of
judgment. There is a fee for the certificate.
take this certificate to the land title office where the land is.
The staff there will fill out the necessary forms and will charge
you a fee to register the certificate. You can register one judgment
against more than one property, if you wish. If the property is
owned in joint tenancy with someone else (as is often the case,
especially if it is a family home) you can still register your
judgment against it, but if the debtor dies, the registration is
Do I have to wait for the debtor to decide to
You can ask the Supreme Court to force a sale of the property. But
this is a complicated and costly process and is not often used to
enforce a small claims judgment. You should get legal advice if you
are thinking about applying for sale of land.
How long does the registration last?
registration is good for two years and can be renewed every two
years. If you keep renewing the registration for up to 10 years,
there is a greater likelihood that the debtor may sell or
re-mortgage the land and you will be paid. You must remember to
renew the registration before the two years are up and the earlier
registration expires. Once the registration has expired, you will
have to obtain a new certificate from the registry and you will have
lost your place on the title.
You can see from all
this that there are many different tools available to help you
collect your money once a court has given you a payment order.
most cases, you should start with a simple written request for
payment along with a copy of the order. If that doesn't work, take a
look at all the information you have about the debtor and try to
decide what would be the most effective method. Usually a payment
hearing is a good start because you can use that to gather the
information you may need later. A payment schedule is often the
answer - if timing and amount of the payments are manageable for the
debtor, you have a better chance of collecting what's owing to you.
if the debtor has money available and is just determined not to pay,
take a look at the other options we have discussed and decide what
will give you the best chance of success.
How can I get more
This is one in a series of booklets
available from any small claims court registry.
titles in the series are:
IS SMALL CLAIMS COURT?
TO A CLAIM
READY FOR COURT
FOR CLAIMS BETWEEN $10,000 AND $25,000
RULES - For more detailed information you may want to look at
the small claims court rules themselves. The rules have been written
people behind the counter at any small claims registry are helpful.
They cannot give legal advice and they cannot fill out your forms
for your, but they will gladly answer many of your questions about
small claims court procedures.
|The information contained in this booklet is simply an
overview of the significant provisions of the Small Claims Act and Small
Claims Rules. It is not intended as a substitute for
the Act or the Rules, which should be examined for specific
information. Also, the information is not intended to be legal
advice. If you have any legal questions, you should see a