We have blogged extensively on fraud recovery strategies and related topics in the past. This blog provides basic legal information on enforcing judgments and debt collection. Unless money is frozen at the commencement of a proceeding, judgement enforcement is required to recover monies after obtaining a civil judgment for damages. Unfortunately, the enforcement of judgments can be a time consuming and frustrating experience, especially if the judgment debtor has no assets.
The Basics of Judgment Enforcement
Two of the most common ways to enforce Judgments are writs of seizure and sale and garnishment. [i] A creditor is entitled to the issue of one or more writs of seizure and sale to be filed with the sheriff in the jurisdiction of the debtors’ assets. A notice of garnishment can be sent to any persons or corporations who hold any assets of the debtor, or otherwise owe a debt to the judgment debtor. This can includes banks, employers, trustees where the judgment debtor is a beneficiary under a Will or Trust, or even others where there are contractual debts and judgment debtor has an accounts receivable.
Writs of seizure and sale and Garnishment Orders can be requisitioned without leave of the court within six years of the date of Judgment. Both Writs and Garnishments remain in force for six years from the date of its issue and for a further six years from each renewal. If six years has expired since the date of the Judgment, or since the issuance of the Writ or Garnishment, a Judgment creditor has two options in which to proceed: a motion for leave to issue a Writ or Garnishment, or issue a new action on the Judgment.
Debtors without Assets – Long Term Projects
If the debtor has no current assets, but there is a likelihood that they will sometime in the future, through employment, inheritance or other means, the ability to enforce the judgment continues, absent bankruptcy of the debtor. If the judgment was obtained due to fraud, it is possible to obtain an order that the judgment survives bankruptcy. Further, a restitution order issued by the criminal court can be filed as a civil judgment for enforcement, and survives any bankruptcy by the debtor.
If a writ or garnishment has expired due to the passage of time, leave of the Court may be required to make it enforceable once again. The criterion of the court’s discretion is “the interests of justice”.[ii] The creditor has the onus of providing some evidence in which to explain the delay, though the threshold is not a high one.[iii] Where there is unexplained delay, the court can exercise its discretion and refuse to grant leave. This consideration of discretion is procedural and designed to permit the court to control its own process.[iv]
If leave is not granted, or there is little or no evidence in which to explain the delay, a judgment creditor continues to have the legal and substantive right of action to sue on a judgment. In Ontario, there is no longer a limitation period to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court.[v] The Divisional Court has recognized that this process may not be an efficient use of judicial resources; however, it provides continued protection for judgment creditors to enforce recovery.[vi]
In certain circumstances it may be advisable to wait to issue a Writ or Notice of Garnishment. If the judgment debtor has insufficient assets at the date of judgment but maintains an ability to accumulate or earn assets in the future, waiting to enforce a judgment can be very strategic.
Evidence Obtained Through Annual Examinations in Aid of Execution
The judgment debtor can be examined under oath once every twelve months in aid of execution unless the court orders otherwise, and where there is difficulty concerning enforcement, the court can order third parties be examined.[vii]
If it is ultimately learned that the judgment debtor has assets or income, an inheritance, or any other monies owing, a motion for leave to issue a Writ or Notice of Garnishment can be brought, or alternatively, an action on the judgment can be commenced. If a new action is commenced on the judgment, a summary judgment motion could be brought for a relatively quick and efficient result.
The removal of the limitation period for the enforcement of judgments can be of great assistance to victims of fraud and other judgment creditors where there is a likelihood that the defendant has the immediate ability or incentive to earn income, or may otherwise accumulate assets or benefit under a Will. At Investigation Counsel PC, we welcome inquiries to discuss a strategy for recovery on your judgment – regardless of through whom or how the judgment was obtained.
[iv] Supra, para 9