Vancouver Support Payment Garnishing Orders are an effective way of ensuring recalcitrant paying spouses meet their spousal and child support obligations. MacLean Family Law consistently achieves amazing results for their clients, including a record-setting decision for the highest monthly spousal support and child support order in BC history. Our lawyers also set the records for jail time and fines against payors who refused to obey court orders.
Today we help you answer your questions:
- How do I enforce child support?
- How do I enforce spousal support?
Vancouver Support Payment Garnishing Orders
Enforcement of court orders, however, is a frequent concern in family law cases. This is particularly true with orders for the payment of child support and spousal support. Even though a sum of money may be Ordered by a Judge, a spouse may be determined not to pay that money. In today’s blog, MacLean Law discusses how a garnishing order is an effective means to obtain court ordered support payments.
What is a Garnishing Order and the process?
Our top Vancouver Support Payment Garnishing Orders lawyers explain that a garnishing order is a court order used to obtain funds owed to a creditor by a debtor from a third party who owes a debt to the debtor. Sections 2-27 of the Court Order Enforcement Act (“COEA”) set out the rules applicable to garnishing orders.
Under s. 18 of the Family Maintenance Enforcement Act, a recipient under a support order can apply to the Supreme Court or Provincial Court for a garnishing order to enforce the payment of arrears owing. A garnishing order requires the person who owes money to the payee (the “garnishee”) to pay that money into court. If you are garnishing the payor’s wages or salary, the funds must be due within seven days after the date on which the affidavit was sworn.
The application is made by completing and filing a garnishing order in Form D and an affidavit in support of a garnishing order after judgment in Form B. These are prescribed forms under Schedule 1 of the Court Order Enforcement Act, R.S.B.C. 1996, c. 78.
The lawyer or the client can swear the affidavit, which must set out:
- the style of cause of the action;
- the name of the creditor (payor) and the name of the debtor (recipient);
- the amount of money owing under the order, the amount of the payments, and the amount of arrears owing;
- that the payments are for support, and how long the support is to be paid; and
- the proper name and address of the garnishee.
- The garnishing order after judgment must refer to the affidavit filed in support. Form D also adds the garnishee’s name to the style of cause.
The application is filed in the court registry without notice to the other party.
Once obtained, the garnishee and the payor must be served with the order. Always personally serve the garnishee before serving the payor. The affidavit does not have to be served. If the garnishee or payor want to dispute the amount of the debt, they must file a notice of intention to dispute the garnishment within ten days after being served with the garnishing order.
The garnishee must pay the money into court. If the payor has not filed a dispute notice, you can apply for payment of the money from the court by filing a requisition requesting payment of the funds garnished and the exact amount of the funds. If the payor has filed a dispute notice, the funds can only be paid out by order of the court.
Vancouver Support Payment Garnishing Orders – Pros and Cons of Garnishing Orders
Pros:
- Garnishing orders bring a tremendous strategic advantage and essentially provide security for your claim
- You don’t have to collect the funds yourself
- Obtaining the order is relatively inexpensive
Cons:
- You can only bring a garnishing order for specific claims
- You need to be meticulous, and even if you are, the order can be set aside if the court finds that it is just to do so
- Defending a garnishing order can be expensive
What Money can be Garnished?
In general, any monies to be paid to or owing to a person can be garnished (for example, wages, bank accounts, monies to be paid out to a client on a real estate closing). However, there are some special considerations to note with respect to different types of wages and payments, such as:
- Bank Accounts
- Money Under contract for goods and services
- RRSPs
- Wages (however, they can only be garnished for a 7-day period after the affidavit in support of garnishment is sworn)
- Rent Payment (provided that the order is served on the tenant the day rent is due and before payment has been forwarded to the landlord.)
- Pensions, including contract and annuities depending on their nature
- Shareholder loans that are due and payable
- The wages and other remuneration of provincial government workers, including employees of any government corporations, can be garnished pursuant to s. 25 of the FMEA and s. 6(3) and(4) of the COEA.
- The wages of federal government workers can only be garnished or attached pursuant to the Garnishment, Attachment and Pension Diversion Act, R.S.C. 1985, c. G-2 (see “Garnishing Compensation to Federal Employees to Pay Support” in this chapter).
- Certain types of benefits payable by the federal government (such as income tax returns, employment insurance, old age pension, Canada Pension Plan benefits) may only be attached or garnished pursuant to the Family Orders and Agreements Enforcement Assistance Act.
- Disability benefits and annuity payments may be garnishable, depending on the locus of the contract and the terms and conditions of the plan (Bank of Montreal v. Freedman, 1984 CanLII 250 (BC SC); Crosson v. Crosson (1985), 14 C.C.L.I. 246 (B.C.S.C.); see also, for comparison, Vater v. Styles, 1930 CanLII 260 (BC CA)).
- Provincial government or Crown corporation pension benefits, trust dividends, and insurance payments: s. 25 of the FMEA allows the attachment of the provincial Crown or a government corporation if “money” is due from the provincial Crown or a government corporation as defined in that section. “Money” is defined to include wages, salary, or other remuneration, a benefit as defined in the Pension Benefits Standards Act, 1985, R.S.C. 1985, c. 32 (2nd Supp.), a variable payment under the Pooled Registered Pension Plans Act, S.B.C. 2012, c. 16, funds from a pooled registered pension plan account withdrawn as authorized, or any prescribed payments or benefits. The prescribed payments and benefits for the purposes of s. 25 of the FMEA are: payments under the Medicare Protection Act, R.S.B.C. 1996, c. 286; benefits under the Workers Compensation Act; and payments by ICBC under the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (FMEA Regulation, s. 12.1). See also s. 9(4) of the Pooled Registered Pension Plans Act.
- A debt owed to a partnership cannot be garnished.
- An RRSP cannot be garnished if the relationship between the respondent and the garnishee is one of trust, rather than debtor/creditor (Vancouver A & W Drive-Ins Ltd. v. United Food Services Ltd., 1981 CanLII 778 (BC SC) (Chambers)). A review of the terms of the RRSP agreement should be undertaken, since some RRSPs can be attached or garnisheed (Bateman v. Toronto Dominion Bank, 1991 CanLII 336 (BC SC)).
What Factors Are Considered When Making a Garnishing Order?
When it comes to garnishing orders, the court will take a number of factors into account. These include:
- The amount of debt owed
- The ability of the debtor to pay
- The impact of the garnishment on the debtor’s ability to support their dependents
- The type of debt owed (e.g. taxes, wages, etc.)
- Whether the debtor has already been subject to a garnishing order
- Any other factors that the court deems relevant
Vancouver Support Payment Garnishing Orders -Top Tips for Garnishing Orders!
- The claim must be a liquidated sum
Debt or liquidated demand – A liquidated demand is in the nature of debt i.e. a specific sum of money due and payable under or by virtue of a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic
- The Garnishee must be in BC
A garnishing order cannot be issued if the garnishee is not within British Columbia
The affidavit in support must include a statement that the garnishee is in the jurisdiction of the court.
Court Order Enforcement Act s3(2)(e)
- Describe the cause of Action
The cause of action must be described with sufficient particularity to enable the judge to decide if the case is one which falls within in the statute.
Chan v. Chan 1997
- Account for all just discounts
COEA s 3(2)(d)(v): in an affidavit in support of a garnishing order, an applicant must state the amount that is owing “after making all just discounts”
- Determine whether other security is available
Whether other security is available, a garnishing order may be set aside e.g. where the debt is secured by a performance bond
No need for “double security” for debts
Flintstone concrete ltd v. Peace River Contracting 2003 BCSC 1137
- Would the effect of the garnishing order put the debtor out of business?
Section 5 of the COEA provides that a court can order a release of garnishment if the court considers it “just in all the circumstances”
Undue Hardship is a consideration!
If there is evidence that a garnishing order would put the defendant out of business pending trial, then a court can order the garnished monies to be released.
Ng v. Pollbay Contracting Ltd 1995
- Serve the Judgment Debtor!
Section 9 of the COEA provides that a copy of the garnishing order must be “served at once” or “within a time allowed by the judge or registrar by memorandum endorsed on the Order” on the defendant, judgement debtor or person liable to satisfy the judgment or order.
Creditor can obtain an order for substituted service if prompt service of the order cannot be effected.
- Watch out for interested 3rd parties!
Getting the money paid into court is only half the battle! Once it is in there, it may be susceptible to claims by third parties.
COEA ss 17-19 allow a judge to order payment to third parties out of garnished amounts in court where it is demonstrated that money is owing to them.
Vancouver Support Payment Garnishing Orders
How Long Does a Garnishing Order Last?
A garnishing order can remain in force for up to 12 months and the order should specify the period of time the order is in force (Family Maintenance Enforcement Act, s. 18(3)).
Conclusion
A garnishing order is an effective means to obtain a court ordered support payment. In conclusion, obtaining a garnishing order Proceedings requires prudence and due diligence. This method of enforcing judgment is one of the most effective ways of recovering debts as opposed to threats and puffs. Click here for provincial court garnishing order instructions.
Vancouver Support Payment Garnishing Orders
The Creditor here is spared the agonizing process of listening to tales of the unavailability of funds and the endless wait for the fulfilment of a promise to pay. Instead, they recover the debt directly from a third party (the Garnishee), who is in possession of the Debtor’s money.
Call us if you have questions concerning:
- How do I enforce child support?
- How do I enforce spousal support?
We will share our strategies for fines, security, jail time, special costs and garnishing orders with you.
