How to Collect Your Judgement by Garnishee


The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you 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 a judgment by garnishee. All of the information provided below is current as of July 24, 2020. The garnishment process takes time and is complex; however, it is inexpensive and can be effective.

 

Garnishment

If a judgment has been given in your favor by the Small Claims Court, the Court of Queen’s Bench or Employment Standards, and it is determined that the other party (the debtor) owes you (the creditor) money, then garnishment can help you collect that money. If the debtor refuses to pay you, or is not able to pay you, garnishment allows you to intercept money which may be going to the debtor from a third party (the garnishee).

 

Examples of possible garnishees may include banks, or the debtor’s employer. For example, if you have a judgment against a debtor, their employer can serve as the garnishee. This will allow you to use garnishment to divert a portion of the debtor’s pay-check to your own hands before the debtor is paid.

 

STEP 1 – File and serve the court judgment 

 At the end of a court hearing, you will receive a court judgment. The judgment can be from the Provincial Court, Civil (also known as Small Claims Court), the Court of Queen’s Bench or Employment Standards. Upon receiving the judgment, make at least three copies and distribute them in the following way;

 

  • File one copy with the Court of Queen’s Bench;
    1. If you have obtained your judgment from a Provincial Court office that is not located in a Queen’s Bench Judicial Centre, the Clerk’s office will allow you to file your judgement by fax if you pay the required fee in advance.
  • Serve one copy on the other party, or parties;
  • Keep one copy for your file.

 

When you file your judgment at the Court of Queen’s Bench, the clerk will stamp all the copies, register the judgment, and provide you with a Court of Queen’s Bench file number.

 

STEP 2 – Send a Demand Letter

 Once you receive the action number, you will then need to send a Demand Letter to the other party (the debtor). A Demand Letter is a letter informing the other party that they owe you money for a specific reason, and requesting that they pay you by a specific date.

 

In this case, you will note that you have a judgment against the debtor, and request that they pay you the amount provided in the judgment. If the debtor complies with your request and pays you, there is no need to resort to garnishment, and the process stops here.

 

STEP 3 – File a Writ of Enforcement

 If the debtor does not respond to the Demand Letter, then you must file a Writ of Enforcement. The Writ of Enforcement forms are available online at the Alberta Courts website (https://www.albertacourts.ca/qb/areas-of-law/civil/forms). Use the same Court of Queen’s Bench file number on the Writ of Enforcement. This notifies other creditors that you have a claim against the debtor, and that the debtor owes you money.

 

Use one copy of this Writ of Enforcement as a draft and take it to a Clerk at the Court of Queen’s Bench to be sure it is filled out correctly. Once you know it is correct,  make at least four copies of the Writ of Enforcement. File all the copies with the Clerk of the Court of Queen’s Bench. They should be distributed in the following way:

 

  • The Clerk will retain one copy (the others will be returned to you);
  • Register one copy at the Personal Property Registry;
  • Register one copy at the Land Titles Office (if applicable); and
  • Keep one copy for your file.

 

When you have a judgment against a debtor, you are considered a creditor. 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.

 

It is also your responsibility to register a Status Report at the Personal Property Registry every two years in order to keep it active. This must be done prior to the Writ of Enforcement expiring. This Status Report will detail the judgment amount that is still owed to you. Importantly, you are also required to register a Status Report whenever you receive payment from the debtor outside of the garnishment process – as this payment will reduce the total amount that the debtor owes you.

 

STEP 4 – File a Garnishee Summons

 A “garnishee” is a third party that would be giving money to the debtor. For example, a garnishee may be an employer, a bank, or other third party. A Garnishee Summons notifies the garnishee that they should pay the amount of the judgment directly to you rather than to the debtor.

 

A Garnishee Summons form can be found on the Alberta Courts website (https://www.albertacourts.ca/qb/areas-of-law/civil/forms). When filling out the form, provide the same information contained in the judgment, described above. The Garnishee Summons must include the following items:

 

  • A Supporting Affidavit – this Affidavit must be sworn before a Commissioner for Oaths. This can be done at the Office of the Clerk when you file your Garnishee Summons.
  • A copy of the search that must be done at the Personal Property Registry to see if other Writs are registered against the debtor and the amount of those other Writs.
  • The value of all other registered Writs against the debtor.
  • The amount that the debtor owes to you, the creditor.
  • Any other costs incurred by you in the course of obtaining this judgment – such as search costs within the Personal Property Registry, or Land Titles Offices.
  • A total amount that the debtor owes you – this would be the amount listed in the judgment from step (4), plus the costs of any searches or services noted in step (5).

 

Use one copy as a rough draft and take it to a Clerk at the Court of Queen’s Bench to ensure that it is filled out properly. Once you know that it is correct, make at least five copies of the Garnishee Summons. File all of the copies with the Court of Queen’s Bench. They should be distributed in the following way:

 

  • The Clerk will retain one copy (the other copies will be returned to you);
  • Keep one copy for your file; and
  • Three copies are to be served on the garnishee.

 

STEP 5 – Serve a Garnishee

A $25.00 administration fee must be paid to the garnishee along with the Garnishee Summons at the time of service.

 

Serving a garnishee with a Garnishee Summons may differ depending on if the garnishee is an individual, or a corporation. For individuals, a Garnishee Summons may be served through personal service, or through recorded mail addressed to the individual’s personal or business address (where applicable). For corporate garnishee’s, the creditor must serve an officer or director of the corporation. Alternatively, one can serve another person with authority within the corporation, or serve the corporation via recorded mail to their registered corporate office.

 

In most cases, the Garnishee Summons is effective for two years. A Garnishee Summons can be renewed after it expires if necessary. If only a portion of the debt is paid to Court, the garnishee must continue to garnish and pay future amounts to Court for two years or until the debt is satisfied.

 

Garnishee’s Response

 Within 15 days of being served with a Garnishee Summons, a garnishee is required to serve the debtor with a copy of the Garnishee Summons and complete the Certificate of Service on the debtor. They must then forward the money and Certificate of Service to the Clerk of the Court. If the garnishee is unable to serve the debtor, they must inform the Clerk of that.

 

If the garnishee does not serve the debtor and complete the Certificate of Service, you will also be advised by the Clerk’s office. You will then have to serve a copy of the Garnishee Summons on the debtor either personally, or by recorded mail.

 

When making payments to the Court, a garnishee must pay the amount of money required by the Garnishee Summons within 5 days following the end of the debtor’s last pay period. If there is no money payable, the garnishee must provide reasons to the Court why money will not be paid.  For example, if the garnishee is a bank, there may not be any money available in the debtor’s bank account. Alternatively, if the garnishee is the debtor’s employer, the employer may not have owed money to the debtor on the day that you served the summons.

 

Payments

 When the money is paid to the Court, a Clerk will send out a Proposed Distribution. This sets out the amount to be paid to each creditor. A Proposed Distribution is required by law when there is not enough money to pay all creditors. There is a process available to object to the Proposed Distribution.

 

Money will first be used to pay any fees, expenses, and costs incurred in setting up the fund. Next, those with statutory entitlements (such as money owed through Worker’s Compensation Benefit or Maintenance) will be paid. Then, the creditor who issued the Garnishee Summons is entitled to the first $2,000.00 collected under the Summons. After that, the balance of the money is then divided amongst all creditors in proportion to the amount they are owed.

 

If the Garnishee is the Debtor’s Employer

 If the garnishee is the debtor’s employer, ensure that a Garnishee’s Worksheet is delivered to the employer along with the Garnishee Summons, which is available at the Clerk’s Office or online (https://www.albertacourts.ca/qb/areas-of-law/civil/forms).

 

The law recognizes that a creditor is not entitled to seize all of a debtor’s money. Rather, the debtor is entitled to keep a certain amount of their money for living expenses. With that in mind, the Garnishee Summons will outline the various employment earnings exemptions that the debtor may use to retain some of their earnings. If the debtor has no dependents, the first $800.00 of the debtor’s earnings per pay period cannot be seized via garnishment. For every dependent that the debtor has, an additional $200 cannot be seized by the creditor.

 

The following persons are considered to be dependents;

 

  • Any person identified as a dependent by an Order of the Court;
  • Any child of the debtor who is under 18 years of age & lives with the debtor;
  • The spouse or adult interdependent partner of the debtor; or
  • Any relative of the debtor (or of the debtor’s spouse/adult interdependent partner) who lives with the debtor and depends financially on the debtor because of mental or physical infirmity.

 

Additionally, any amount which is garnished (after the $800 minimum, plus $200 per dependent) can only be garnished up to 50%. For example, if a given debtor had one minor child and earned an income of $1800 per month, $1000 of that would be protected and the creditor could only garnish 50% of the remaining $800 – working out to $400 per month. The law also notes that in any example (not just the example listed previously), net income exceeding $2400 per month may be garnished in its entirety. Exemptions will also apply for judgments regarding alimony or maintenance.

 

If the Garnishee is the Debtor’s Bank

 Garnishee Summons issued on bank accounts will expire 60 days from the date issued. If a bank account is held jointly with someone else, the Garnishee Summons is only good on the day the Garnishee Summons is served.

 

The money garnished from a jointly held bank account is only that portion considered to belong to the debtor. This is presumed to be one half of the account balance (unless the other joint holders of the account obtain a Court Order stating that they are entitled to a different amount).

 

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.