5,483
edits
Difference between revisions of "Creditors' Remedies against Debtors (10:III)"
Jump to navigation
Jump to search
Creditors' Remedies against Debtors (10:III) (view source)
Revision as of 06:17, 11 June 2016
, 06:17, 11 June 2016→d) Procedure for Post-Judgment Garnishing Order
Desy Wahyuni (talk | contribs) |
Desy Wahyuni (talk | contribs) |
||
| Line 315: | Line 315: | ||
*d) the address of the garnishee’s residence in the jurisdiction (s 3(2)). | *d) the address of the garnishee’s residence in the jurisdiction (s 3(2)). | ||
The affidavit is filed in the court registry along with the form of order requested. Barring any technical problem resulting in the registry declining to issue the order, the garnishing order will usually be issued on the same day. The garnishee is then served with a copy of the order, which commands him or her to pay the money into court. A copy of the order is then served on the debtor as soon as possible after service on the garnishee. The garnishee may dispute indebtedness to the judgment debtor (see Section II.B: Legal Advice for Debtors Who are Garnished, below). Where the garnishee pays money, the court keeps the money until it is paid out to the judgment creditor under ss 11, 12, and 13. Funds held jointly to the credit of the defendant and another person, who is not a party to the action, cannot be garnished, except where a creditor bank exercises its right of offset: see 238344 BC Ltd. v Patriquin et al (1984), 57 BCLR 224. | The affidavit is filed in the court registry along with the form of order requested. Barring any technical problem resulting in the registry declining to issue the order, the garnishing order will usually be issued on the same day. The garnishee is then served with a copy of the order, which commands him or her to pay the money into court. A copy of the order is then served on the debtor as soon as possible after service on the garnishee. The garnishee may dispute indebtedness to the judgment debtor (see [[ # | Section II.B: Legal Advice for Debtors Who are Garnished]], below). Where the garnishee pays money, the court keeps the money until it is paid out to the judgment creditor under ss 11, 12, and 13. | ||
Funds held jointly to the credit of the defendant and another person, who is not a party to the action, cannot be garnished, except where a creditor bank exercises its right of offset: see 238344 BC Ltd. v Patriquin et al (1984), 57 BCLR 224. | |||
e)Payment by Instalments A debtor against whom a garnishing order has been made may apply for a release of the garnishing order, and for an order for the payment of the debt by instalments on the basis of hardship (see Bank of Montreal vMonsell (1994), 58 BCLR 11 (SC)). This order, if granted (it is rare), will bind the debtor’ s creditors, but will only continue for as long as the debtor is not in default on any payment for more than five days, and so long as no other garnishing order is issued against him or her for any other debt (s 5). The creditor may apply to have the order varied if new evidence of the debtor’ s finances comes to light. 5.Garnishment of Wages a)Judgment Required Garnishment of wages can only occur after a judgment (s 3(4)). b)Deductions and Exempt Wages 70 percent of any wages due by an employer to an employee is exempt from seizure or attachment under a garnishing order. Therefore, only 30 percent of wages after statutory deductions (i.e. Employment Insurance premiums, Canada Pension Plan, Income Tax, etc.) can be garnished (s 3(5)). However, a single person cannot be left with less than $100 per month (or calculated pro rata for a shorter period), and a person with dependants cannot be left with less than $200 per month (or calculated pro rata for a shorter period) (s 5). However, where wages are garnished to pay maintenance or support for the debtor’ s family, the exemptions allowed to that person are 50 percent of wages not exceeding $600 per month or 33 and 1/3 percent of wages exceeding $600 per month (COEA s.3(7)). These exemptions must not be less than $100 per month (s 4(6)). Garnishment by the Family Maintenance Enforcement Program is called a Notice of Attachment. The Family Maintenance Enforcement Act Regulation, BC Reg 346/88 | e)Payment by Instalments A debtor against whom a garnishing order has been made may apply for a release of the garnishing order, and for an order for the payment of the debt by instalments on the basis of hardship (see Bank of Montreal vMonsell (1994), 58 BCLR 11 (SC)). This order, if granted (it is rare), will bind the debtor’ s creditors, but will only continue for as long as the debtor is not in default on any payment for more than five days, and so long as no other garnishing order is issued against him or her for any other debt (s 5). The creditor may apply to have the order varied if new evidence of the debtor’ s finances comes to light. 5.Garnishment of Wages a)Judgment Required Garnishment of wages can only occur after a judgment (s 3(4)). b)Deductions and Exempt Wages 70 percent of any wages due by an employer to an employee is exempt from seizure or attachment under a garnishing order. Therefore, only 30 percent of wages after statutory deductions (i.e. Employment Insurance premiums, Canada Pension Plan, Income Tax, etc.) can be garnished (s 3(5)). However, a single person cannot be left with less than $100 per month (or calculated pro rata for a shorter period), and a person with dependants cannot be left with less than $200 per month (or calculated pro rata for a shorter period) (s 5). However, where wages are garnished to pay maintenance or support for the debtor’ s family, the exemptions allowed to that person are 50 percent of wages not exceeding $600 per month or 33 and 1/3 percent of wages exceeding $600 per month (COEA s.3(7)). These exemptions must not be less than $100 per month (s 4(6)). Garnishment by the Family Maintenance Enforcement Program is called a Notice of Attachment. The Family Maintenance Enforcement Act Regulation, BC Reg 346/88 | ||
p10-11 | p10-11 | ||