The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses the enforcement of your judgment by garnishee. The garnishee process takes time and is somewhat complex, but it is inexpensive and can be effective.
If you have a judgment in your favor from Small Claims Court, the Court of Queen’s Bench or Employment Standards and been unable to collect from the other party, there are legal remedies or procedures you can use to collect your money. The remedies most often used to collect are Writ of Enforcement, Garnishment and Seizure.
When you receive your Court judgment or Order to pay from small claims Court of the Provincial Court, the Court of Queen’s Bench or Employment Standards, make several copies before you file your Order at the Court of Queen’s Bench. You will need 1 copy to file with the Court of Queen’s Bench, 1 to serve on the other party or each of the other parties, and 1 for your own copy. When you file your judgment, the clerk will stamp your copies, register your judgment, and provide you with a new Court action number. Send out a Demand Letter to the debtor requesting payment.
Once you have filed your Court judgment or Order to pay and the debtor failed to respond to your demand to pay, file a Writ of Enforcement against the Debtor. Use the same action number on your Writ of Enforcement. The Writ of Enforcement will notify other creditors that you have a claim against that person. The forms for a Writ of Enforcement are available from the Queen’s Printer Bookstore for a small fee. You may ask to have the forms mailed to you or you can purchase them from the internet. You will require at least 5 copies of the Writ. Use 1 copy for a draft, 1 copy for your files and 1 copy to file at the Court of Queen’s Bench and 1 copy each for registration at the Personal Property Registry and the Land Titles office. Registration at the Personal Property Registry and the Land Titles Office will serve as Notice to other creditors that you have a claim against the debtor. Registration will ensure that the property cannot be disposed of until you are considered for payment.
You will also need to purchase a Garnishee Summons form. You will need at least 6 copies. Use 1 copy for a rough draft and take the draft to the Clerk of the Queen’s Bench to be sure it is filled out correctly before you complete the other copies. Provide the same information contained in your Court judgment or Order to pay on your Garnishee Summons. Use the correct names of all persons involved. A search must be done at the Personal Property Registry to see if other Writs are registered against the Debtor. The information of other registered Writs of Enforcement against the same debtor must be written on the Garnishee Summons. You will also require an Affidavit in Support of Garnishee Summons. The affidavit must be sworn before a Commissioner for Oaths. This can be done at the Office of the Clerk of the Court at the time you file your Garnishee Summons.
Serve 3 copies of the complete Garnishee Summons on the debtor and the garnishee. The garnishee is the person who will be collecting the money from the debtor. You must provide a $25 administration fee to the garnishee with the Summons. When the Garnishee Summons is for employment earnings, include a Garnishee’s Worksheet with the Summons. This form is available at the Clerk’s Office. Serve the Garnishee Summons by handing the documents to the garnishee or by registered mail. The Debtor must be served with the Garnishee Summons within 15 days of service to the garnishee.
The Garnishee Summons will outline the employment earnings exemptions available to the Debtor. If the Debtor has no dependents the minimum employment earnings exemption is $800 and the maximum exemption is $2400. The minimum and maximum employment earnings exemption is increased by $200 for each dependent. The following persons are considered to be dependents:
- Any person identified as a dependent by an Order of the Court;
- Any person for whom a Debtor is entitled to claim a spousal amount for the purposes of the Income Tax Act;
- Any child of the Debtor who is under 18 years of age and lives with the Debtor;
- Any relative of a Debtor or of the Debtor’s spouse or spousal equivalent who lives with the Debtor, and, by reason of mental or physical infirmity, is financially dependent on the Debtor.
In the case of judgments for alimony or maintenance, the Maintenance Enforcement Actemployment exemptions apply. The exemption for earnings is $525 plus 30% of net wages or salary over that amount.
The garnishee must pay the money to the Court or provide reasons to the Court why the money is not paid. For example, there may not be any money available in the debtor’s bank account or the employer owed no money to the debtor on the day you served the summons. If the money is paid into the Court, the Clerk will pay the money to you or send out a Proposed Distribution for your share. A Proposed Distribution is required by law when there is not enough money to pay all creditors. Any prior registrations made before you registration at the Personal Property Registry or Land Titles office must be paid first. The balance of the money is then divided amongst all creditors in proportion to the amount they are owed. Those owed the most money by the Debtor will receive a greater portion. As the creditor conducting garnishment, you will be entitled to receive up to the first $2,000 that is collected to compensate you for your time and effort.
A Garnishee Summons issued on bank accounts will expire 60 days from the date it was issued. If the bank account is held jointly with someone else, the garnishee summons is only good on the day the garnishee summons is served. The money garnisheed from a jointly held bank account is only that portion considered to belong to the Debtor. This is usually one half of the account balance. In most other cases, the Garnishee Summons is effective for 1 year. If only a portion of the debt is paid into Court, the garnishee must continue to garnishee and pay future amounts into Court for the entire year or until the debt is satisfied. A garnishee Summons can be renewed for a further 1 year term if necessary.