Garnishing Orders

Garnishing Orders

Garnishing Orders

garnishment order - Prepared by Glenn Gallins
Revised April 2008
Funded by the PLE Program of the Legal Services Society


WHAT IS IN THIS FACTSHEET



This factsheet describes what garnishment is. Then it tells how to:

    Garnish money owed to a Debtor before the Small Claims Court has made an order that the money is owed;
    Garnish wages owed to a Debtor after Small Claims Court has made an order that the Debtor owes money;
    Have money which has been paid into court as a result of a Garnishing Order, then be paid to the person entitled to the money.

WHAT IS A GARNISHING ORDER?



Let us suppose the person you have sued has money in a savings account in a bank. It is his money. The bank owes it to him and he could get it by going to the bank and withdrawing it. The effect of a Garnishing Order is to have that money paid into the court registry so it is available to be paid to you if you win the lawsuit.
SOME DEFINITIONS



Before going further, some words need to be defined. These words appear on the forms used to get a Garnishing Order.

A "Claimant" is the person who starts a lawsuit in Small Claims Court.

A "Defendant" is the person being sued.

"A Garnishing Order Before Judgment" is a Garnishing Order issued by the court before the Claimant has won the lawsuit.

"A Garnishing Order After Judgment" is a Garnishing Order issued by the Court after the lawsuit is over and the Court has declared money is owed.

A "Judgment Creditor," who is also called a "Creditor by Judgment (or Order)" is a person who has obtained a Court Order for money against another person.

A "Judgment Debtor," who is also called a "Debtor by Judgment (or Order)" is the person who has been declared by a Court Order to owe money to the Judgment Creditor.

A "Garnishee" is someone who owes money to a Defendant or Judgment Debtor.

"Attachment Proceedings" is another term used for garnishment.


WHEN CAN A GARNISHING ORDER BE GRANTED



If a lawsuit is for debt, that is, for a specific sum of money due under a contract, then a Garnishing Order can be obtained before the lawsuit is over. If the Claimant wins the lawsuit the money obtained as a result of the Garnishing Order will be available at the Court Registry and can be paid to the Claimant.

If the lawsuit is not for a debt, a Garnishing Order can only be obtained after a Court order has been granted declaring the amount of money due to the winner of the lawsuit.


WHAT MONEY CAN BE GARNISHED



To obtain a Garnishing Order, a Garnishee must be located in British Columbia.

After a Court Order is granted, any money payable by a Garnishee to a Judgment Debtor can be garnished including wages.

Before a Court Order is granted, wages can not be garnished.

The rest of this factsheet will tell you how to obtain Garnishing Orders. First, how to obtain a Garnishing Order Before Judgment will be described. Then, how to garnish wages with a Garnishing Order after Judgment will be described.


GARNISHING ORDERS BEFORE JUDGMENT



A Garnishing Order before Judgment is a special kind of order. This is because it is granted to one side of a lawsuit before the court has decided who should win the lawsuit. Since the Small Claims Court has jurisdiction in disputes for amounts up to $25,000 plus interest, it is possible for a Claimant to get a Garnishing Order for $25,000 plus interest if that is the value of the debt being claimed by the Claimant. So $25,000 plus interest owed by a Garnishee to a Defendant might be paid to the Court Registry (and sit and earn no interest) until trial.

Because the impact of a Garnishing Order before Judgment can be so great on a Defendant, the law requires the person seeking the order to follow the required procedure exactly. Errors in completing forms or not following other requirements might allow a Defendant to have the Garnishing Order set aside or permit a Garnishee to refuse to pay money owed to the Defendant to the Court Registry.



FIND OUT THE CORRECT NAME OF THE GARNISHEE



The first step to obtain a Garnishing Order is to find out the correct legal name of the Garnishee. This is because if you use the wrong name on the Garnishment documents, the Garnishee can refuse to pay to the Court money owed to the Defendant. If the Garnishee is a company, a search at the B.C. Corporate Registry Office would be useful. The way to do this search is described in Factsheet 2.


OVERVIEW OF THE NEXT STEPS



To obtain a Garnishing Order you must then:

    Prepare and swear an Affidavit;
    Prepare a Garnishing Order form;
    File the Garnishing Order and Affidavit at the Court Registry and pay the required fee;
    Serve the Garnishing Order and Affidavit on the Garnishee and Defendant.


PREPARE AN AFFIDAVIT



There are two types of Affidavits. One is used if it is to be sworn before the Notice of Claim has been filed at the Small Claims Court Registry. This affidavit is called an Affidavit in Support of a Garnishing Order Before Action. If the Notice of Claim has already been filed, an Affidavit in Support of a Garnishing Order Before Judgment should be sworn and filed.

Because it is usually easier to start a lawsuit first by filing a Notice of Claim, only an Affidavit in Support of a Garnishing Order Before Judgment will be described.

Click here to view a sample of a completed Affidavit in Support of a Garnishing Order Before Judgment.

Click here to obtain a blank Affidavit in Support of a Garnishing Order Before Judgment which you can use.


The Affidavit should be completed by filling in:

    The court file number which will have been put on the Notice of Claim by the Court Registry staff when the Notice of Claim was filed;
    The name of the Registry such as the "Victoria Registry";
    The name of the Claimant and Defendant as they appear on the Notice of Claim;
    The name and address and occupation of the person who will swear the Affidavit (usually the Claimant);
    If the Claimant is swearing the Affidavit tick the box before the words "I am the above-named claimant";
    In paragraph 2 after the words "This Action is pending and was commenced on the" insert the date the Notice of Claim was filed (e.g., the 3rd day of April 2003).
    In paragraph 3 after the words "The nature of the course of action is," insert the words "as set out on the Notice of Claim, a copy of which is attached to this Affidavit and marked Exhibit 'A'";
    In paragraph 4 insert the name of the Defendant after the word " Defendant," then insert the amount owing to the Claimant after the words "the sum of";

    The amount owing should be the amount agreed to in the contract which is the basis of the lawsuit. Unless that contract provides for interest for late payments or other default by the Defendant, interest should not be included.

    Also, only the amount which is due on the date the Affidavit is sworn can be claimed. For example, let's suppose 3 payments of $200 each are due by installments as of April 1st, May 1st and June 1st. The Defendant has missed the April and May payments and the Claimant decides to sue on May 15th. The Claimant can only sue for $400 at this time, unless the contract contained what is known as an "acceleration clause." This clause would make the total remaining balance due if a default in payment occurred.

    Finally, if the Claimant owes money to the Defendant for some reason, that amount should be deducted from the amount claimed.
    In paragraph 5 list the name, address, and description of the Garnishee.

    For example:
    "Deep Cove Credit Union, 1000 Wharf Street, Mill Bay, B.C., a Credit Union";
    or
    "Stan Jones, 2110 High Road, Kamloops, Real Estate Agent";
    or
    "The Royal Bank of Canada, 9201 Kings Road, Victoria, B.C., a Chartered Bank".

Next make a photocopy of the Notice of Claim.


SWEAR THE AFFIDAVIT



The Affidavit must be sworn and the Notice of Claim must be attached as Exhibit "A". Affidavits can be sworn by a Notary, Lawyer or an authorized person at the Small Claims Court Registry. There will be a fee for swearing the Affidavit. The person who swears the Affidavit should stamp the Notice of Claim with an exhibit stamp, and should fill in the information on that stamp.

The exhibit stamp says:

"This is Exhibit "A" to the Affidavit of _______ sworn the _____ day of ____________ 200__."

Then there is a place for the person taking the oath to sign.

It is vital that all words crossed out and any corrected errors on the Affidavit be initialed by the person taking the oath. Remember, a Garnishing Order can be set aside if an Affidavit is not properly completed. The money paid to the Court Registry by a Garnishee might then be returned to the Defendant.


PREPARE A GARNISHING ORDER



Click here to view a sample of a completed Garnishing Order Before Judgment.
Click here to obtain a blank Garnishing Order Before Judgment form.

To complete the form:

    Fill in the name of the Plaintiff (Claimant) and Defendant as they appear on the Notice of Claim;
    Fill in the correct name of the Garnishee;
    After the words "on reading the Affidavit of" fill in the name of the Claimant and the date the Affidavit was sworn;
    On the lines provided on the form, fill in the name and address of the Defendant;
    On the lines provided on the form, fill in the name and address of the Garnishee;
    On the line which says "Amount due," fill in the dollars and cents of the debt owed in the correct column;
    Leave blank the line dealing with cost of attachment proceedings. The Small Claims Court Registry Clerk will fill in this line. The Clerk may grant expenses for swearing the Affidavit and serving the Garnishing Order on the Garnishee and Defendant. After filling in how much to allow for expenses, the Registrar will also fill in the area for the "total amount attached."


TAKE THE DOCUMENTS TO THE COURT REGISTRY



Next the draft Garnishing Order and Affidavit should be taken to the Small Claims Court Registry. The Garnishing Order will be completed and signed by the Registrar. The Order and Affidavit can then be filed. A fee will be charged.


SERVE THE GARNISHING ORDER



The Garnishing Order must be served on the Garnishee and the Defendant. The goal is usually to surprise the Defendant so the Defendant does not defeat the garnishment by collecting his or her money first (for example, by withdrawing it from a bank account). So the Garnishee is usually served first, and then the Defendant is served.

Garnishing Orders can be served in the same way as a Notice of Claim, by giving it directly to the Garnishee or it may be served by mailing a copy to the person to be served by registered mail to the last known post office address of that person.

See Factsheet 6 called "Serving Documents" for more information.


WHAT THE GARNISHEE MUST DO



When a Garnishee receives a Garnishing Order the Garnishee is required by the

Court Order Enforcement Act

to pay to the Court Registry money the Garnishee owes to the Defendant, up to the amount required by the Garnishing Order. If the Garnishee does not owe any money to the Defendant, then the Garnishee should file Dispute Note at the Court Registry.

If money is paid to the Court Registry, a notice will be sent to the Claimant stating the amount paid into court.


SETTING ASIDE A GARNISHING ORDER



The Defendant can apply to have the Garnishing Order set aside, in whole or in part. For more information about how a Defendant can do this, see Factsheet 20 , which is called "Setting Aside Garnishing Orders."

Money garnished before judgment will be held at the Court Registry unless the Defendant is successful in having it released. The money will not draw interest. The money will then be available to be paid out to the party who wins the lawsuit.

A Garnishing Order for wages can only be obtained after an Order has been obtained against the person being sued.

A private employer and a government employer can be garnished.


MONEY EXEMPT FROM GARNISHMENT



Generally, 30% of a person's wage can be garnished, except that a single person must be left with at least $100 per month and a person with dependants, $200 per month.

Money due to a Defendant for income assistance from the Ministry of Human Resources or the Workers' Compensation Board CAN NOT be garnished.

The rest of this Factsheet will describe garnishing wages from a private employer, the B.C. Government and the Federal Government.


GARNISHING WAGES FROM A PRIVATE EMPLOYER OR THE B.C. GOVERNMENT



If you are garnishing wages from a private employer or from the Provincial Government, you must do the following:

    File a Judgment (which in Small Claims Court is often referred to as a "Payment Order");
    Prepare an Affidavit in Support of Garnishing Order After Judgment;
    Prepare a Garnishing Order After Judgment;
    Swear the Affidavit in Support of Garnishing Order After Judgment WITHIN seven (7) days of the Debtor's payday;
    Serve the Garnishing Order on the employer and on the Debtor within seven (7) days of the paydate;
    File at the Small Claims Court Registry an Affidavit of Service proving that a copy of the Garnishing Order was given to the Debtor.


OBTAIN A PAYMENT ORDER



The first step is to have a Payment Order completed and filed at the Small Claims Court Registry. If you have obtained a Default Order, you should see Factsheet 8 called "Default Orders" for instructions as to how to prepare the necessary document. If you obtained an Order from a Judge at trial, you will need to have a Payment Order completed.

For more information see Factsheet 13 called "Preparing for Trial."


PREPARE AN AFFIDAVIT IN SUPPORT



Click here to view a sample of a completed Affidavit in Support of Garnishing Order After Judgment.

Click here to obtain a blank Affidavit in Support of a Garnishing Order After Judgment form which you can use.


To complete the Affidavit, fill in the following information:

    The Court file number as it appears on the Notice of Claim;
    The name of the Registry where the lawsuit took place;
    The name of the person awarded judgment should be inserted before the words "Judgment Creditor";
    The name of the person against whom judgment was granted should be inserted before the words "Judgment Debtor";
    The name, address and occupation of the person who is swearing the Affidavit;
    If you are going to swear that the contents of the Affidavit are true, tick the box before the words "make oath and say that." If you are going to affirm that the contents of the Affidavit are true, tick the box in front of the words "solemnly affirm that";
    Most likely you will leave the words "I am the person entitled to enforce the Judgment or Order referred to in this affidavit." Put a line through the words "I am the solicitor for the person entitled to enforce the judgment or order hereafter referred to in this affidavit." Also put a line through the words "I am acting for the person entitled to enforce the judgment or order hereafter referred to in this affidavit, and I am aware of the facts hereafter referred to in this affidavit";
    In paragraph two on the form, fill in the amount of money which the Court found owing to you;
    Then fill in the amount of money still owing;
    Then fill in the name of the Debtor;
    Then insert your name (as Creditor);
    In paragraph three fill in the name and address and description of the Garnishee. The description might be: employer, credit union, bank, etc.

Once you have completed the Affidavit, you should take it to a notary public or a lawyer, or an authorized person at the Small Claims Court Registry so that it may be sworn. There will be a fee for swearing the Affidavit. Lawyers and notaries are listed in the Yellow Pages. Telephone first to find out the fee for this service. Some people charge much more than others do for the same service.


PREPARE A GARNISHING ORDER



Click here to view a sample of a completed Garnishing Order (After Judgment).

Click here to obtain a blank Garnishing Order (After Judgment) form which you can use.


To complete a Garnishing Order fill in the following information:

    The Court number as it appears on the Notice of Claim;
    The name of the Registry where the lawsuit took place;
    Your name before the words "Judgment Creditor";
    The name of the person you obtained the Judgment against before the words "Judgment Debtor";
    The name of the Garnishee. If you wish to garnish wages, the Garnishee is going to be the employer of the Judgment Debtor. If the employer is a Limited Company, you must be sure to use the exact legal name of the employer. This will require you to do a search at the B.C. Corporate Registry Office. The way to do this search is described in Factsheet 2;

    If the Garnishee is the Provincial Government, the name of the Garnishee is "Her Majesty the Queen in the Right of the Province of British Columbia";
    After the word "before" leave a blank so that this area can be completed by the Registrar;
    After the words "on reading the Affidavit of" insert your name as the person who swore the Affidavit in Support of the Garnishing Order;
    After the words "sworn on" insert the date on which the Affidavit was sworn;
    Insert the Judgment Debtor's name and address in the box provided on the form;
    Insert the Garnishee's name and address in the box provided on the form;

    Note: If the Garnishee is Her Majesty The Queen in the Right of the Province of British Columbia, insert the address:

    Government Payroll Office
    Office of the Comptroller General
    Ministry of Finance
    617 Government Street
    Victoria, B.C. V8V 4R8

    Under the address line you should also indicate the name of the Ministry the Judgment Debtor works for if you know it. For example, you could write: "Judgment Debtor works for the Ministry of Health." This information will help ensure that the right person's wages get garnished.
    Then in the lower portion of the form, insert the amount due on the Order or the balance owing.


You should now have completed the following forms:

    A Payment Order;
    An Affidavit in Support of a Garnishing Order After Judgment; and
    A Garnishing Order (After Judgment).


FILE THE DOCUMENTS



These forms should be taken to the Small Claims Registry for filing. The Small Claims Registry will then give you a copy of the Garnishing Order for service on the Garnishee.


SERVE THE AFFIDAVIT AND GARNISHING ORDER



The Affidavit and Garnishing Order should then be served on the Garnishee.

If the Garnishee is a private employer, the Affidavit and Garnishing Order may be given to the private employer in several ways:

    It can be given personally to the employer;
    It can be mailed registered to the last known address of the employer. For more information on service see Factsheet 6 called "Serving Documents."

If the Garnishee is the B.C. Government, the Court Order Enforcement Act says the Garnishing Order should be served on the Deputy Minister of Finance. In fact the Affidavit and Garnishing Order may be served on:

Government Payroll Office
Office of the Comptroller General
Ministry of Finance
617 Government Street
Victoria, B.C. V8V 4R8

Service can be done by registered mail. Service can also be done by having a person over 19 years old serve the Affidavit and Garnishing Order personally. The Government Payroll Office is located at 617 Government Street on the second floor of the South Wing.


SERVE THE JUDGMENT DEBTOR



In addition to serving the Garnishee, the Judgment Debtor must also be served with the Garnishing Order.

The Judgment Debtor must be served before money will be paid out of Court to you.

Service of the Garnishing Order on the Judgment Debtor can be done in three ways:

    By giving the Judgment Debtor a copy;
    By mailing a copy by registered mail to the Judgment Debtor's last known post office address;
    By an alternate method of service ordered by the Registrar. See Factsheet 6 called "Serving Documents" for the procedure.


WHAT THE GARNISHEE MUST DO



If wages were due and owing within 7 days of the date of the serving of the Garnishing Order and Affidavit in Support on the Garnishee, 30% of the wages of the Judgment Debtor should be paid into Court by the Garnishee.


GARNISHING WAGES OF FEDERAL EMPLOYEES



The garnishment of wages of Federal employees is governed by a Federal statute called the Garnishment, Attachment and Pension Diversion Act and the regulations made under that statute.


OVERVIEW OF THE PROCEDURE



    Obtain a copy of the Consent Order, Default Order or the Order obtained after a Settlement Conference or trial (sometimes called a Payment Order) which states how much money is owed to the Judgment Creditor;
    Obtain a Garnishing Order following the same steps described above for obtaining such an order;
    Prepare an Application Under Part 1 of the Garnishment, Attachment and Pension Diversion Act (GAPDA);
    Serve the Application, Garnishing Order and the Order which states how much money is owed to the Judgment Creditor. Service of these documents on the Federal Government must be done within 30 days of the date the Garnishing Order was issued by the Small Claims Registry.


OBTAIN A COPY OF THE ORDER WHICH STATES HOW MUCH MONEY IS OWED TO THE JUDGMENT CREDITOR



If you do not have a copy of this Order you can obtain one from the Small Claims Court Registry.


OBTAIN A GARNISHING ORDER FOLLOWING THE SAME STEPS DESCRIBED ABOVE FOR OBTAINING SUCH AN ORDER



Click here to view the steps for obtaining a Garnishing Order.


PREPARE AN APPLICATION UNDER PART 1 OF THE GARNISHMENT, ATTACHMENT AND PENSION DIVERSION ACT (GAPDA)



Click here to obtain a blank Application Under Part 1 of the GAPDA which you can use.

At the top of the form you will see that it requires you to include a copy of the "garnishee summons" with the Application. A garnishee summons is another term for a Garnishment Order.

The Application form requests a great deal of information to help identify the correct federal employee whose wages are to be garnished. You may not know some of the required information. Complete the form with as much information as you can. For example, you may not know the Debtor's date of birth, social insurance number, occupation or home telephone number. All this information can be left blank if you do not know the answers.

To complete the form:

    In answer to Question 1  insert the Debtor's name as it appears in the Garnishment Order;
    In answer to Question 5 tick the box that indicates in what capacity the Debtor is employed by the Federal Government. Most likely they will be an employee of a department of the Federal Government or a Crown Corporation;
    In answer to Question 15, you may not know whether the Debtor receives a salary or remuneration. If the Debtor is an employee of a federal department or Crown Corporation, tick the salary box;
    Tick the box in answer to Question 21. Then insert the amount of the debt that remains unpaid. This should be the same amount as indicated in the Garnishing Order;
    Be sure to complete the information in the Declaration section of the form, including signing and dating the form.


SERVE THE APPLICATION, GARNISHING ORDER AND THE ORDER



The GAPDA says that service of the documents on the Federal government in connection with garnishment proceedings must be effected at the place specified in the regulations. According to the regulations:

(a) If the garnishment proceedings are in respect of a debtor who receives salary or remuneration from the Department of Justice, the Public Prosecution Service of Canada or a court, is a judge to whom the Judges Act applies or is a person appointed by a Minister under section 128 of the Public Service Employment Act, service of documents must be effected at the following place:

Garnishment Registry
Department of Justice
284 Wellington Street
Ottawa, Ontario  K1A 0H8

(b) If the garnishment proceedings are in respect of a debtor who receives salary or remuneration from Canada Post, The Royal Canadian Mint, Telefilm Canada or The Canadian Dairy Commission Crown, service of documents must be effected at the head office of the corporation.

If neither (a) nor (b) apply, then the regulations specify that in British Columbia service of the documents must be effected at:

Garnishment Registry
Department of Justice
British Columbia Regional Office
Suite 900
840 Howe StreetStreet
Vancouver, B.C. V6Z 2S9

Service of documents can be can be done by personally delivering them or by sending them by registered mail to the appropriate address listed above.

Thirty percent of the wages of the Judgment Debtor should be paid into Court by the Federal Government.

The Judgment Debtor might try to reduce the amount available by bringing an application to the Court. For information about how this might be done see Factsheet 20, which is called "Setting Aside Garnishing Orders."


HOW TO GET MONEY PAID OUT OF COURT



If the Judgment Debtor does not try to reduce the amount available to the Judgment Creditor then there are three possible ways to get the money which has been paid into court, paid out.



        If you obtained a Default Order (because the Defendant did not file a Reply) a special rule applies. You can merely file an Affidavit of Service of the Garnishment Order on the Judgment Debtor and wait until 3 months after the money was paid into Court before requesting it be paid to you. Click here to obtain a blank Affidavit of Service form. It is printed on the back of the Garnishment Order.

        You can then go to the Small Claims Court Registry where the money is and request that it be forwarded to you. Usually the Court will request the Ministry of Finance to forward a cheque to you. It may take up to 4 weeks to get the money.
        A faster way to get the money out of Court is to have the Judgment Debtor consent in writing to have the money paid to you.

        Click here to view a sample completed Consent to Payment Out of Court.
        Click here to obtain a blank Consent to Payment Out of Court that you can use.



    The last way to get the money out of Court is to give the Judgment Debtor a Notice of Payment Out. If the Judgment Debtor doesn't dispute that Notice within 10 days, you can apply to the Court to have the money paid out to you.

    Click here to view a sample completed Notice of Payment Out.
    Click here to obtain a Notice of Payment Out which you can use.

    The Notice may be served personally on the Judgment Debtor. Section 13 (3) of the Court Order Enforcement Act also permits service of the Notice on the Judgment Debtor by mailing a copy of the Notice registered mail to the last known post office address of that person. If the Judgment Debtor can not be served personally and there is no known address for the Judgment Debtor, you may have to make an application for substitutional service of the Notice. For more information about this procedure see sections 12(2), 13(2) and 9(5) of the Court Order Enforcement Act and Factsheet 6.

    After the Notice has been given to the Judgment Debtor, you must wait 10 days. If the Judgment Debtor does not file a dispute to the paying out of the money, you can then go to the Small Claims Registry and ask to have the money paid to you. You must provide the Registry with an Affidavit of Service to prove that the Judgment Debtor was served with the Notice.

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