Instalment Payment Orders - Revision history

Drew Jackson: /* The procedure */

2018-10-12T16:06:04Z

The procedure

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	For Supreme Court actions, the best time to ask for an order is often in response to a motion by the creditor for a summary judgment or summary trial. The debtor files and delivers a Notice of Application and supporting affidavit in the creditor’s court action, asking for the application to be heard when the creditor’s application is heard.		For Supreme Court actions, the best time to ask for an order is often in response to a motion by the creditor for a summary judgment or summary trial. The debtor files and delivers a Notice of Application and supporting affidavit in the creditor’s court action, asking for the application to be heard when the creditor’s application is heard.

	Similarly, an application could be made in response to a garnishing order ([http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], section 5), an application to sell the debtor’s home (''Court Order Enforcement Act'', section 96), or a subpoena to debtor notice ([http://canlii.ca/t/8lld Supreme Civil ~~Court~~ Rule] 13-3(11)). These orders are somewhat flexible.		Similarly, an application could be made in response to a garnishing order ([http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], section 5), an application to sell the debtor’s home (''Court Order Enforcement Act'', section 96), or a subpoena to debtor notice ([http://canlii.ca/t/8lld Supreme Court Civil Rule] 13-3(11)). These orders are somewhat flexible.

	Small Claims Rule 17(3), section 5(3) of the ''Court Order Enforcement Act'' (in place of garnishment), and Supreme Court Civil Rule 13-3(11) provide authority for a debtor (and creditor) to apply to vary an instalment payment order once the order has been made, and where there is a change in the circumstances of the debtor.		Small Claims Rule 17(3), section 5(3) of the ''Court Order Enforcement Act'' (in place of garnishment), and Supreme Court Civil Rule 13-3(11) provide authority for a debtor (and creditor) to apply to vary an instalment payment order once the order has been made, and where there is a change in the circumstances of the debtor.

Drew Jackson: /* The procedure */

2018-10-12T16:05:32Z

The procedure

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	Similarly, an application could be made in response to a garnishing order ([http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], section 5), an application to sell the debtor’s home (''Court Order Enforcement Act'', section 96), or a subpoena to debtor notice ([http://canlii.ca/t/8lld Supreme Civil Court Rule] 13-3(11)). These orders are somewhat flexible.		Similarly, an application could be made in response to a garnishing order ([http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], section 5), an application to sell the debtor’s home (''Court Order Enforcement Act'', section 96), or a subpoena to debtor notice ([http://canlii.ca/t/8lld Supreme Civil Court Rule] 13-3(11)). These orders are somewhat flexible.

	Small Claims Rule 17(3), section 5(3) of the ''Court Order Enforcement Act'' (in place of garnishment), and Supreme Civil ~~Court~~ Rule 13-3(11) provide authority for a debtor (and creditor) to apply to vary an instalment payment order once the order has been made, and where there is a change in the circumstances of the debtor.		Small Claims Rule 17(3), section 5(3) of the ''Court Order Enforcement Act'' (in place of garnishment), and Supreme Court Civil Rule 13-3(11) provide authority for a debtor (and creditor) to apply to vary an instalment payment order once the order has been made, and where there is a change in the circumstances of the debtor.

	== Related topics and materials ==		== Related topics and materials ==

Drew Jackson: /* Is the remedy viable? */

2018-10-12T16:02:26Z

Is the remedy viable?

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	=== Is the remedy viable?===		=== Is the remedy viable?===
	Instalment payment orders are a useful remedy for debtors, but in limited circumstances:		Instalment payment orders are a useful remedy for debtors, but in limited circumstances:
	* '''There are only one or two major creditors:''' The client should not be in default to, or unable to pay, more than one or two major creditors. Applying for orders for several creditors is cumbersome; other remedies such as proposals are probably more efficient.		* '''There are only one or two major creditors''': The client should not be in default to, or unable to pay, more than one or two major creditors. Applying for orders for several creditors is cumbersome; other remedies such as proposals are probably more efficient.
	* '''The client has sufficient income:''' The client must have sufficient income to pay off the full amount owed, as well as other debts, within a reasonable time.		* '''The client has sufficient income''': The client must have sufficient income to pay off the full amount owed, as well as other debts, within a reasonable time.
	* '''There are special circumstances:''' The court must generally be persuaded that there are special circumstances to justify such an order. It is the responsibility of the debtor to demonstrate the justification.		* '''There are special circumstances''': The court must generally be persuaded that there are special circumstances to justify such an order. It is the responsibility of the debtor to demonstrate the justification.

	Advocates should take the initiative to propose an instalment repayment agreement with the creditor, whether or not legal action has been started, rather than simply relying on the possibility that the court will make such an order. An application for any instalment payment order should probably be made only if the advocate cannot negotiate an arrangement directly with the creditor.		Advocates should take the initiative to propose an instalment repayment agreement with the creditor, whether or not legal action has been started, rather than simply relying on the possibility that the court will make such an order. An application for any instalment payment order should probably be made only if the advocate cannot negotiate an arrangement directly with the creditor.

Drew Jackson: /* Information gathering */

2018-10-12T16:01:53Z

Information gathering

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	== Information gathering==		== Information gathering==
	There are two important aspects of fact gathering when a debtor applies for an instalment payment order:		There are two important aspects of fact gathering when a debtor applies for an instalment payment order:
	* The financial circumstances of the client: Obtain a complete financial picture of the client, including income and expenses, and assets and liabilities. It is particularly important to determine whether there are any other creditors, the extent of the debtor’s assets, and the amount the debtor could pay each month on the judgment.		* '''The financial circumstances of the client''': Obtain a complete financial picture of the client, including income and expenses, and assets and liabilities. It is particularly important to determine whether there are any other creditors, the extent of the debtor’s assets, and the amount the debtor could pay each month on the judgment.
	* The court in which the creditor is making the claim: Information about the court involved will govern what procedures to follow when applying for the instalment payment order.		* '''The court in which the creditor is making the claim''': Information about the court involved will govern what procedures to follow when applying for the instalment payment order.

	If the client has been sued, obtain all relevant court documents from the client or from the court registry. If the client has not been sued, determine the amount owing to anticipate in which court an action might be brought.		If the client has been sued, obtain all relevant court documents from the client or from the court registry. If the client has not been sued, determine the amount owing to anticipate in which court an action might be brought.

Drew Jackson: /* Specific situations */

2018-10-12T16:00:54Z

Specific situations

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	==== Specific situations====		==== Specific situations====
	Because of the broad provisions of the rules of court in both Supreme Court and Small Claims Court, additional authority may not be needed. However, the following provisions may give added weight to arguments in favour of instalment payment orders and may be more efficient to use:		Because of the broad provisions of the rules of court in both Supreme Court and Small Claims Court, additional authority may not be needed. However, the following provisions may give added weight to arguments in favour of instalment payment orders and may be more efficient to use:
	* '''Where a garnishing order has been made:''' Under section 5 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], a judgment debtor who has been [[Garnishment and Set-offs\|garnished]] can apply to have the garnishing order set aside and the judgment ordered payable in instalments. So long as the order is in good standing, the creditor cannot issue any further garnishing orders. Section 5 outlines the procedure for applying for an order, and for applying to vary the order if the debtor’s circumstances change. Section 5 also says that if the judgment debtor is in default of the instalment payment order for more than five days, the order is terminated.		* '''Where a garnishing order has been made''': Under section 5 of the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act''], a judgment debtor who has been [[Garnishment and Set-offs\|garnished]] can apply to have the garnishing order set aside and the judgment ordered payable in instalments. So long as the order is in good standing, the creditor cannot issue any further garnishing orders. Section 5 outlines the procedure for applying for an order, and for applying to vary the order if the debtor’s circumstances change. Section 5 also says that if the judgment debtor is in default of the instalment payment order for more than five days, the order is terminated.
	* '''Where a creditor is seeking to have the debtor’s home sold to pay debts:''' Under section 96 of the ''Court Order Enforcement Act'', a judgment debtor can ask the court to defer the sale of the “home of the debtor” if the creditor is applying to have the home sold to satisfy a judgment. Section 96 says the deferral can be made subject to terms and conditions (including instalment payments) that the court orders.		* '''Where a creditor is seeking to have the debtor’s home sold to pay debts''': Under section 96 of the ''Court Order Enforcement Act'', a judgment debtor can ask the court to defer the sale of the “home of the debtor” if the creditor is applying to have the home sold to satisfy a judgment. Section 96 says the deferral can be made subject to terms and conditions (including instalment payments) that the court orders.
	* '''At a subpoena to debtor hearing:''' Under the [http://canlii.ca/t/8lld Supreme Court Civil Rules], a judgment debtor can ask the court to make an instalment payment order at a subpoena to debtor hearing (Rule 13-3(11)).		* '''At a subpoena to debtor hearing''': Under the [http://canlii.ca/t/8lld Supreme Court Civil Rules], a judgment debtor can ask the court to make an instalment payment order at a subpoena to debtor hearing (Rule 13-3(11)).

	=== Effect of instalment payment orders===		=== Effect of instalment payment orders===

Drew Jackson at 14:45, 9 October 2018

2018-10-09T14:45:14Z

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	{{REVIEWEDPLS \| reviewer = [[Alison Ward]]\|date= August 2018}}{{Consumer and Debt Law TOC\|expanded = ~~going court~~}}		{{REVIEWEDPLS \| reviewer = [[Alison Ward]]\|date= August 2018}}{{Consumer and Debt Law TOC\|expanded = goingcourt}}
	In court actions, judges have the authority to order that a '''judgment be paid in instalments'''.		In court actions, judges have the authority to order that a '''judgment be paid in instalments'''.

Drew Jackson at 14:41, 9 October 2018

2018-10-09T14:41:13Z

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	{{REVIEWEDPLS \| reviewer = [[Alison Ward]]\|date= August 2018}}{{Consumer and Debt Law TOC\|expanded = ~~goingcourt~~}}		{{REVIEWEDPLS \| reviewer = [[Alison Ward]]\|date= August 2018}}{{Consumer and Debt Law TOC\|expanded = going court}}
			In court actions, judges have the authority to order that a '''judgment be paid in instalments'''.

	~~In court actions, judges have the authority to order that a '''judgment be paid in instalments'''.~~
	== Client problems==		== Client problems==
	* Creditor has threatened to sue or has sued the client in court. Client does not deny the claim and says they can make reasonable monthly payments on the debt but cannot pay off the whole debt.		* Creditor has threatened to sue or has sued the client in court. Client does not deny the claim and says they can make reasonable monthly payments on the debt but cannot pay off the whole debt.
	* Client has been sued and is concerned that their assets will be taken or wages will be garnished.		* Client has been sued and is concerned that their assets will be taken or wages will be garnished.

	== Summary of the law==		== Summary of the law==
	[[File:Consumer_Law_and_Debt_-_Instalment_Payment_Orders.jpg\|thumb\|275px\|right\| link=\| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]		[[File:Consumer_Law_and_Debt_-_Instalment_Payment_Orders.jpg\|thumb\|275px\|right\| link=\| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]

Elena Renderos at 04:47, 21 September 2018

2018-09-21T04:47:35Z

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	== Summary of the law==		== Summary of the law==
			[[File:Consumer_Law_and_Debt_-_Instalment_Payment_Orders.jpg\|thumb\|275px\|right\| link=\| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]
	Most credit agreements call for a debtor to make monthly payments to repay the total amount borrowed. So long as the debtor makes the payments, the creditor generally cannot demand any more. Except in the case of specific types of “demand” credit agreements (for example, demand promissory notes or demand lines of credit), a creditor cannot suddenly simply decide to demand the full balance due.		Most credit agreements call for a debtor to make monthly payments to repay the total amount borrowed. So long as the debtor makes the payments, the creditor generally cannot demand any more. Except in the case of specific types of “demand” credit agreements (for example, demand promissory notes or demand lines of credit), a creditor cannot suddenly simply decide to demand the full balance due.

Elena Renderos at 19:44, 19 September 2018

2018-09-19T19:44:23Z

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	== Related topics and materials ==		== Related topics and materials ==
	See the other sections on going to court:		See the other sections on going to court:
	* Court Process in Consumer and Debt ~~Matters~~		* [[Court Process in Consumer and Debt Matters]]
	* ~~Limitations~~		* [[Limitations]]
	* Foreign Claims and ~~Judgments~~		* [[Foreign Claims and Judgments]]
	* Contempt of ~~Court~~		* [[Contempt of Court]]

	See related topics:		See related topics:
	* Assignments in ~~Bankruptcy~~		* [[Assignments in Bankruptcy]]
	* Contract Remedies		* [[Contract Remedies]]
	* Garnishment and Set-~~offs~~		* [[Garnishment and Set-offs]]

Elena Renderos at 00:41, 17 September 2018

2018-09-17T00:41:31Z

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	* Contract Remedies		* Contract Remedies
	* Garnishment and Set-offs		* Garnishment and Set-offs


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