Area of Law: Small Claims Court
Answer # 566
What is garnishment?Region: Ontario Answer # 566
Garnishment allows the creditor to collect money directly from someone who owes the debtor money such as an employer who owes the debtor wages. This person or business is called the garnishee. If you won a lawsuit and you have a judgment that says you are owed money, and the debtor refuses to pay, a common way to collect is by garnishment. Garnishment orders are issued by the court.
To apply for garnishment, the plaintiff must do the following:
1. Complete a Notice of Garnishment Form. If there is more than one garnishee, for example, if the debtor has two employers, you must complete a separate Notice of Garnishment for each one. The Notice of Garnishment is valid for six years. If you will not be able to collect all the money within that time, you will have to file a Notice of Renewal of Garnishment before the first one expires.
2. Complete an Affidavit for Enforcement Request. In the Affidavit, you must state the name and number of the case, the date that the judgment was made, the court where the judgment was made, how much is owed to you and if any of it has been paid. You will also need to provide the name and address of the garnishee, and explain why you think the garnishee owes the debtor money. Once you complete the Affidavit, you will have to swear that the information you provided is true. This is done in front of a commissioner of oaths, who can be a lawyer or a staff member at the court office.
3. File the Notice of Garnishment and the Affidavit for Enforcement Request with the court. The court officer will sign and seal the Notice of Garnishment and will return a copy to you.
4. Serve the Notice of Garnishment and a blank Garnishee’s Statement on the garnishee, who is either the bank, the employer, or whoever you have named in the notice.
5. Within five days of serving the garnishee, you must serve the Notice and a copy of the Affidavit for Enforcement Request on the debtor.
You can serve these documents, on both the garnishee and the debtor, personally, by courier, or by mail.
6. Lastly, file two Affidavits of Service with the court. One proves the garnishee has been served, the other proves the debtor has been served.
The garnishee will deduct the amount designated in the garnishment order from the amount owing to the debtor and then pay it to the court. The court will deposit the payment in the court’s account, in trust, for the creditor. The court will hold the payment for 30 days, and if the court has received the Affidavits of Service proving that the creditor served the Notice of Garnishment on the debtor, the clerk will send a cheque to the creditor.
Under some circumstances, where the creditor needs to collect the debt through a court in a different jurisdiction because the debtor does not live or carry on business in the same area in which the case was tried, a Certificate of Judgment is needed. In such cases, the creditor will require proof of judgment from the originating court. The creditor will request and pay for a Certificate of Judgment and then file it in the court office where the judgment will be enforced.
There are court fees for obtaining and filing forms. Check with the Small Claims Court or online for current forms and fee amounts. If you are unsure about how to collect your debt by garnishment, the staff at the court office may provide you with more information. You can contact the Ministry of the Attorney General.
Depending on the amount of money you are owed, you may also consider hiring a private collection company to handle the garnishment for you.
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