What is a garnishing order
A garnishing order is an order a creditor can ask the court to make requiring a third party (referred to as the garnishee) who owes money to the debtor, to pay that money into court to the credit of the creditor’s lawsuit.
For example, say you have a judgment against John Doe for $10,000 and you find out that he has a bank account at the Royal Bank with a balance of $20,000. You can obtain a garnishing order requiring the Royal Bank (the garnishee) to pay $10,000 into court to the credit of your action.
Garnishing orders can be used to attach money in banks, receivables, rent payments and wages owing to a debtor.
Needless to say, they can be extremely useful and effective methods of getting paid when the debtor has money or is owed money and is simply refusing to pay.
Are there different kinds of garnishing orders?
There are two main kinds of garnishing orders.
The first is a garnishing order after judgment. As the name implies, this is used when a creditor has already obtained a judgment. The creditor does not have to give notice to the debtor that a garnishing order is being made. The creditor (or the creditor’s lawyer) must swear an affidavit in support of the garnishing order which states a judgment has been recovered, that it hasn’t been paid and that they believe the garnishee is indebted to the debtor (the proper name and address of the garnishee is required). The garnishing order is then filed along with the affidavit in the court registry and the creditor then arranges to have the garnishing order served on the garnishee. If the garnishee owes any money to the debtor at the time the garnishing is served then the garnishee must pay that money into court. Thus the timing when the garnishing order is served on the garnishee is critical because if there is no money owing at the time when it is served then the garnish order will not attach to any funds.
The act states that:
(2) A judge or a registrar may, on an application made without notice to any person by
(a) a plaintiff in an action, or
(b) a judgment creditor or person entitled to enforce a judgment or order for the payment of money,
on affidavit by himself or herself or his or her solicitor or some other person aware of the facts, stating,
(c) if a judgment has been recovered or an order made,
(i) that it has been recovered or made, and
(ii) the amount unsatisfied, or
(d) if a judgment has not been recovered,
(i) that an action is pending,
(ii) the time of its commencement,
(iii) the nature of the cause of action,
(iv) the actual amount of the debt, claim or demand, and
(v) that it is justly due and owing, after making all just discounts,
and stating in either case
(e) that any other person, hereafter called the garnishee, is indebted or liable to the defendant, judgment debtor or person liable to satisfy the
judgment or order, and is in the jurisdiction of the court, and
(f) with reasonable certainty, the place of residence of the garnishee,
order that all debts due from the garnishee to the defendant, judgment debtor or person liable to satisfy the judgment or order, as the case may be,
is attached to the extent necessary to answer the judgment recovered or to be recovered, or the order made, as the case may be.
(3) A similar order for the attachment of debts due from a garnishee to a defendant may be made by a judge or registrar on application by or on
behalf of a plaintiff who has
(a) filed an affidavit in or to the effect of Form A in Schedule 1, and
(b) issued a writ or a summons, as the case may be, for the amount of his or her claim against the defendant.
(4) An order must not be made under this Part for the attachment of a debt due to an employee for the employee's salary or wages before a
judgment or order for the payment of money has been obtained against the employee in the proceeding.
(5) Except as otherwise provided in this Part, 70% of any wages due by an employer to an employee is exempt from seizure or attachment under a garnishing order issued by a judge or registrar, but the amount of the exemption allowed under this subsection must not be less than
(a) in the case of a person without dependants, $100 per month, or proportionately for a shorter period, and
(b) in the case of a person with one or more dependants, $200 per month, or proportionately for a shorter period.
(6) Subsection (5) (a) does not apply if the debt is contracted for board or lodging and subsection (5) (b) does not apply if
(a) the debt is contracted for board or lodging, and
(b) in the opinion of the judge or registrar, the exemption set out in subsection (5) (b) is not necessary for the support and maintenance of the debtor's dependants.
(7) Despite any other provision of this Part, if the wages of a person are seized or attached under
(a) a court order for alimony or maintenance,
(b) a duly executed separation agreement, or
(c) an order under section 18 (2) of the Family Maintenance Enforcement Act,
the exemption allowed to that person is 50% of any wages due if the wages due do not exceed $600 per month and 33 1/3% for wages in excess of $600 per month but the amount of the exemption allowed under this subsection must not be less than $100 per month, or proportionately for a shorter period.
(8) The definition of "debts, obligations and liabilities" in subsection (1) applies to the use of that expression or the use of any of the words composing it in an order made under this section.
The second type of garnishing order that can be obtained is one obtained prior to judgment. These are only available in limited circumstances