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Difference between revisions of "Creditors' Remedies against Debtors (10:III)"
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Creditors' Remedies against Debtors (10:III) (view source)
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Garnishment by the Family Maintenance Enforcement Program is called a Notice of Attachment. The ''Family Maintenance Enforcement Act Regulation'', BC Reg 346/88 contains rules about exemptions from attachment. These rules are different than those found in the ''COEA''. | Garnishment by the Family Maintenance Enforcement Program is called a Notice of Attachment. The ''Family Maintenance Enforcement Act Regulation'', BC Reg 346/88 contains rules about exemptions from attachment. These rules are different than those found in the ''COEA''. | ||
==== c) Variation of Exemption ==== | |||
A debtor whose wages are garnished may apply under s 4 to have the exemption varied. The registrar or judge shall, within three days after receiving the application, notify persons affected by it and a hearing will be held within seven days. | |||
With respect to maintenance orders, under s 18(2) of the ''Family Maintenance Enforcement Act'', upon application by a creditor, the court can issue a garnishing order against the debtor without giving notice. | |||
A separate garnishing order must be sworn and issued for each payment of wages to the debtor, since one garnishing order is good for only one debt that is owed to the debtor. | |||
==== d) Employer’s Liability for Firing Employee ==== | |||
No employer may fire or demote an employee because that employee has their wages garnished. An employer who does so is liable on summary conviction to a fine of up to $500 or up to three months in jail or both, and an employee can be reinstated with back pay if they are fired for garnishment of wages (s 27). One should consider the fact that the garnishment may have been the final reason among others for termination, and may be difficult to prove. | |||
=== 6. Garnishment of Statutory Benefits === | |||
'''Benefits including Employment Insurance, Canada Pension Plan, Old Age Security, workers compensation, social assistance and provincial disability benefits are usually exempt from garnishment, seizure or attachment.''' The exemptions are found in the statutes that govern these respective benefit programs. | |||
However, this exemption from garnishment does not apply to offsets or to debts to the government. For example debts to the federal crown may be collected from Canada Pension Plan benefits. Canada Revenue Agency is now routinely offsetting CPP and other benefits. Social assistance (welfare) is the only statutory benefit that is truly exempt from garnishment. '''The client should also be advised that this protection against garnishment may not extend to a bank account into which the exempt income is deposited if it is commingled with other funds.''' | |||
=== 7. Enforcing a Judgment Outside of BC === | |||
It is possible to register a B.C. judgment in many foreign jurisdictions, including other Canadian provinces. The requirements for registration may differ from jurisdiction to jurisdiction, so the judgment creditor should consult with counsel in the destination jurisdiction to determine the specific requirements. | |||
It is also possible, and sometimes more efficient, to sue on the judgment in the province or country where the judgment debtor’s assets are located. Normally the foreign court requires a certificate. To obtain a certificate in BC, creditors must file an application to the court that asks for a certificate to be issued (''COEA'' s 30). | |||
== C. Unsecured Creditors: Remedies and Options Before Judgment (Liens) == | |||
A lien is a claim, encumbrance, or charge on property (real or personal) for payment of a debt, obligation, or duty. In many cases, a creditor is entitled to place a hold or lien over specific property that has benefitted from the individual’s material or labour. It acts as security from the individual’s material or labour and as security for the payment to the creditor. '''Property liens are complicated and potentially serious. Please refer clients to a lawyer.''' The most common liens are listed below. | |||
p10-15 | p10-15 | ||