Getting Your Judgment Paid (Script 169)

From Clicklaw Wikibooks

Winning in small claims court does not guarantee you will be paid. What can you do if the person you sued refuses to pay you? This script explains that you have 5 options:

  • a payment hearing
  • an order for seizure and sale of goods
  • a garnishment order
  • a default hearing
  • registration of a payment order against land

But first, you must file your payment order or default order (explained below). You are called the creditor after you win a judgment. The defendant who you sued is called the debtor. If the person you sued has no assets and no job, or if they became bankrupt or moved out of the country, you may never get paid.

File your court order

After a judge makes a payment order at the end of a trial or settlement conference, you must go to the court registry, fill in a Payment Order form (Form 10), and give it to the court registry.

If the defendant did not reply to your claim by the deadline, you can ask the court for a default order. You must complete an Application for a Default Order (Form 5). If the amount you claimed is a specific, easily calculated amount, a judge can make an order for you to start collecting it immediately. The default order will require the debtor to pay the amount you claimed plus interest and expenses. In some cases, you will have a hearing with a judge to prove the amount of your claim. A default order isn’t automatic, and you must be prepared to give evidence and show supporting documents to prove the amount owing.

A small claims court order lasts for 10 years. After that, you will have to ask the court to extend the order. The court can do that if:

  • the debtor confirms the cause of action (the thing you sued for); or
  • you sue again based on the previous order, before the first 10 years are over.

Write and ask the debtor to pay you

After filing your payment order or default order, send a copy of it to the debtor with a letter asking them to pay you. Make the letter short and clear, warning that you will take further action if they don’t pay by a certain date. Set a reasonable deadline (for example, 14 days from the date you send your letter). Include the address where to send the payment. Send the letter by registered mail.

If there's a payment schedule

A payment order might include a payment schedule that tells the debtor how much they must pay and how often they must pay it. If the debtor makes the payments following the schedule, you can’t collect the full amount all at once. But if there’s no payment schedule or if the debtor doesn’t follow the schedule, they will owe you the full amount immediately and you can take steps to collect it.

The five options if the debtor doesn't pay you

1. Payment hearing

The purpose of a payment hearing is to get information about the debtor's financial situation. At the hearing, the debtor can be required to produce income tax returns, recent pay stubs and other documents that show their assets, income, and debts. At the hearing, the judge considers whether the debtor can pay the payment order, and whether it should include a payment schedule.

At the hearing, be ready to ask the debtor about their employment, bank accounts, and other assets and sources of income. You can use the information you get at the payment hearing to help collect your judgment. And the costs of your application for the payment hearing will be added to the amount the debtor must pay you.

If the debtor doesn’t attend the payment hearing, you can ask the judge to issue an arrest warrant, forcing the debtor to attend. But that’s rarely done. Debtors usually get many chances to pay.

2. Order for seizure and sale of goods

An order for seizure and sale of goods allows a court bailiff to take and sell the debtor’s property. The order lasts for one year. This option can be useful if the debtor doesn’t have any income but has valuable assets, such as an expensive car, a boat, or shares in a profitable company. But you cannot seize certain things. The Court Order Enforcement Act lets a debtor keep the following things:

  • $4,000 of household furnishings and appliances,
  • A vehicle worth up to $5,000; and
  • $10,000 worth of tools and other personal property that the debtor uses to earn income for work.

And the bailiff will be paid first from the sale of the goods, so you should be sure that the debtor has goods worth taking and selling at a court-ordered auction.

If you get an order for the seizure and sale of goods, give a copy of the payment order or the default order to the Insurance Corporation of British Columbia (ICBC) to see if the debtor has any motor vehicles registered in their name. You can also search the debtor’s name in the BC Manufactured Home Registry and the Personal Property Registry to see if the debtor owns any personal property worth more than the things they can keep.

If you seek an order for seizure and sale, you will need to pay a deposit to cover the bailiff’s estimated costs.

A related option is to ask a bailiff to search the court’s records to see if any other creditors are trying to collect a debt against the same debtor. If so, you may be able to share in some of the recovery from the debtor. But some creditors, such as the Canada Revenue Agency, may have priority over assets.

3. Garnishment order

If you get a garnishing order from the court, you can give it to the debtor’s employer or the bank where the debtor has an account, and the wages owed or bank money belonging to the debtor will be paid to the court instead. Once the court receives the money, you can apply to have it paid out to you.

Normally, only 30% of a debtor’s wages can be garnished. And there are some technical rules and steps that you must follow. Discuss the procedure with the court registry staff before starting garnishment.

Script 251 has more on garnishment.

4. Default hearing

You can ask for a default hearing from the registrar (Form 5) if the debtor doesn’t obey a payment schedule. At a default hearing, the court asks the debtor why they have not made payments the court already ordered, at trial, in a settlement conference, or after a payment hearing.

At the default hearing, the debtor must explain to a judge why they have not followed the payment schedule. The judge can either confirm the original payment schedule or change it. If the judge decides that the debtor’s explanation for not paying shows contempt of court, the judge can send the debtor to jail for up to 20 days, and the debtor must still pay the money.

For the hearing, you must decide what items the debtor must bring to court, including banking records, tax returns, utility bills and credit card statements. If the debtor does not attend the default hearing, you can ask the judge to issue an arrest warrant.

5. Registration of payment order against land

You can register your payment order against any land the debtor owns in British Columbia. This will severely restrict the debtor’s ability to sell or mortgage the land until they pay the judgment. To find out if the debtor owns land in BC, do a name search at the Land Title Office through BC OnLine.

To register your payment order, you must get a certificate of judgment from the small claims court registry and file it with the Land Title Office that has the records of the debtor’s land. The registration is good for 2 years, and can be renewed every 2 years up to 10 years.

You can also ask the BC supreme court to force a sale of the property, so you can recover the amount you are owed from the proceeds of the sale. But this process is expensive and complicated. And it’s not normally used to enforce small claims court judgments.

More information

[updated August 2017]

The above was last reviewed for accuracy by Anna Kurt and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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