Garnish the Debtor’s Wages
Garnish means “attach”, as in garnishing the debtor’s wages. Garnishment is a way to get the debtor’s money, like wages or money in the bank, paid to you. For example, if you know that the debtor is employed, you might garnish their salary. This means that money from the judgment debtor’s paycheque goes into court, and then to you.
Garnishment of wages is an effective and less expensive remedy when the debtor is employed, and you should consider this option before taking other steps to collect the money owed to you on your judgment. Garnishment of a debtor’s wages often prompts the debtor to negotiate a repayment schedule.
The typical procedure for garnishing the debtor’s wages is as follows:
- Prepare an affidavit to support your garnishing order. The Affidavits sets out:
- The details of the court order you are enforcing
- The amount owing
- That someone else (e.g., an employer) owes money to the debtor
- That person or company is in BC (including the address)
- Fill out the garnishing order (Form D to Schedule 1)
- File the garnishing order and your affidavit in the court registry. (There is a filing fee.) The registry will give you the copies you need for service. You are entitled to some expenses in addition to the money that is owed to you (e.g., the filing fee; service fees; fees for swearing the affidavits)
- Serve the garnishing order on the garnishee (i.e., the employer)
- The garnishee pays the money into court
- Serve the garnishing order on the debtor, and file an affidavit of service.
- The money will be paid into court
- Serve a “notice of payment out” on the debtor. This notice says that you will ask the court to pay the money to you. If the debtor does not respond for 10 days, you can file proof that you served the debtor with the notice of payment and apply to the court for the money
- The court will then pay the money to you. You do not have to use a special form to ask the court to pay the money out to you. You can write a letter, setting out what money has been paid into court and what is owed to you. If the debtor agrees that you are entitled to the money, they can sign a consent form and it will be paid to you immediately
There is a limit on the amount of wages that can be garnished. It is usually a maximum of 30% of the debtor’s net income after statutory deductions. Employment insurance and social assistance payments cannot be garnished.
Note also that a garnishing order only applies to wages that become payable within 7 days from the date the affidavit in support was sworn. So, the order must be timed to coincide with the debtor’s pay period and a new order must be prepared for every subsequent pay period. For example, if the debtor is paid twice a month, and their next payday is July 15, your affidavit must be sworn no earlier than July 8th. When you deliver the garnishing order to the debtor’s employer, you will be able to get some money only from the July 15th paycheque. You will have to go through the procedure again for every pay period, and this could take a very long time.
Garnish the Debtor’s Bank Account
Money in the debtor’s chequing or savings account can be garnished as long as it is not held jointly with someone who does not owe you money. For example, if the debtor’s savings account is held jointly with their wife, you are not entitled to money from that account. The debtor’s RRSP account cannot be garnished.
The garnishment procedure is described above in garnishment of wages. The garnishing order only applies to money in the accounts at the bank branch that is served. So, for example, if the debtor has bank accounts at the Royal Bank at 123 Main Street, the garnishing order does not apply to another bank account that the debtor has at the Royal Bank on Central Street.