Judgements, enforcement, contempt and costs Flashcards
What is a judgement?
A one of a kind order that a court might issue at the end of a proceeding, a decision that finally disposes of an action on its merits and includes a judgement entered in consequence of the default of a party
What is the difference between final and interlocutory orders?
A final order of the Small Claims Court is appealable to the Divisional Court
Interlocutory orders are not appealable
What is the periodof time used to calculate prejudgement interest?
The date that the cause of action arose to the date of the order
A final order of the Small Claims Court may be appealed to the Divisional Court only if
the amount of money, excluding costs or the value of personal property claimed in the action exceeds $3,500
Where an order requires the judgement debtor to make periodic payments is in force, the creditor is not permitted to
take or continue any steps to enforce the order, with the exception of issuing a writ of seizure and sale of land and filing it with the sheriff
an affidavir for enforcement request is Form
20P
What is stated in an affidavit for enforcement request?
states the amount outstanding under the order, taking into account money received since the date of the order.
A certificate of judgement is form
20A
A writ of delivery is Form
20B
What isa writ of delivery?
Issed by the clerk of the court to a bailiff at the creditor’s request where there has been default under an order requiring the delivery of personal property. Filed by the party owed outstanding property per the order
Writ of seizure and sale of personal property is Form
20C
A writ of seizure and sale of personal property is issued by
the clerk of the court at the creditor’s request where there is a default under an order for the payment or recovery of money
A writ of seizure and sale of personal property remains in force for
6 years after the date of issuance. May be renewed by filing a request to renew with the bailiff (Form 20N)
A creditor who has received a writ of seizure and sale of personal property may file for enforcement by
filing a direction to enforce with the bailiff (Form 20O) detailing the propert to be seized amd its location
Writ of seizure and sale of land is Form
20D
A writ of seizure and sale of land can be filed
electronically, without a supporting affidavit
A writ of seizure and sale of land remains in force for
6 years after the date of issuance
For sale of personal property, notice of the time and place of sale must be
mailed by the bailiff to the debtor and the creditor at least 10 days prior to the sale, and must be published in a newspaper of general circulation in the place where the property is seized
For sale of real property, no steps may be taken to sell under the writ until
4 months after the writ was filed or re-filed if it was withdrawn,
Notice of the time and place of sale of real property must be
mailed to the debtor and the creditor and published in the Ontario Gazette at least 30 days before any sale
For the sale of real property, the sheriff must place two notices in
the newspaper with general circulation in the place where the land is situated, the last such notice not more than 3 weeks and not less than 1 week before the sale, and must post a notice prominently in the sherrif’s office
Notices of garnishment are issued by
the clerk of the court in the territorial jurisdiction where the judgement debtor resides or carries on business
For garnishment, the creditor must file an
affidavit for enforcement Form 20P stating:
- the amount outstanding, after accounting for any payments and postjudgement interest
- the name and address of the person that the judgement creditor believes is or will become indebted to the judgement debtor
- the particulars of such debts known to the judgement creditor
A notice of garnishment is Form
20E
A notice of garnishment shall name only
one debtor adn one garnishee.
The notice of garnishment and a copy of the affidavit used to obtain the notice is served by
the judgement creditor on the debtor within 5 days of service on the garnishee
What must a garnishee do when served with a notice of garnishment?
pay any amounts it owes to the judgement debtor, subject to any exemptions, to the clerk of the court up to the amount of the judgement debt within 10 days after service of the notice or within 10 days after the debt becomes due, whichever is later.
if the garnishee denies owing the judgement debtor the amount the judgement creditor believes was owing as stated in the notice of garnishment, or pays a less amt to the clerk, the garnishee must
serve and file with the court a garnishee’s statement (Form 20 F) within 10 days after the service of the notice of garnishment and set out the particulars of the dispute
What are the exemptions from garnishment?
- necessary clothing of the debtor and dependants
- household furniture & appliances up to $14,180
- tools and assets used in business up to $14,105 or $31,379 for farmers
- single motor vehicle of up to $7,117
-aids and devices owned by debtor or debtor’s family to assist with disability or medical or dental conditions - 80% of the employee’s net wages, some payment benefits under government programs
In 2010, the exemption of ____ was added
the equity value of the principal residence of a debtor as long as the value does not exceed $10,783
When may a person who has been served a notice of examination be cited in contempt of court/ordered to attend a contempt hearing?
- the person attends the examination but refuses to answer questions or to produce records/documents
- the person fails to attend an examination respecting a default by a debtor under an order for the payment/return of money despite having been personally served with the notice of examination
a notice of contempt hearing must be served
at least 7 days before the hearing
A judge may find contempt at a hearing where they are satisfied that:
- the person was required to attend the examination
- the person was personally served with the notice to attend
- the person failed to attend
- the failure to attend was wilful
Where a finding of contempt is made, a judge may make an order that the person in contempt:
- attend an examination under Rule 20.10
- be jailed for a period of not more than 5 days
- attend an additional contempt hearing, or
- comply with any other order that the judge considers necessary or just
What is issued to apprehend a person who has been found in contempt?
Form 20J
Section 29 of the CJA states that (costs)
costs shall not exceed 15% of the amount claimed or the value of the property sought to be recovered, unless considered necessary due to unreasonable behaviour/for the sake of justice
Costs per S29 CJA does not include
disbursements
