CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
Before the sheriff sells personal or real property that was seized pursuant to a writ, notice of the time and place of the sale must be provided to the creditor. Garnishment Garnishment is another common procedure to enforce a domestic judgment in Canada, and permits a credi - tor to seize money that is owed to the debtor by a third party (eg, wages, salaries, dividends and receivables). A creditor with a judgment for the payment of money can request that the local registrar issue a notice of garnishment. The creditor must provide particulars of the judgment and of the debts owed to the debtor by a third party. Writ of sequestration A writ of sequestration is another enforcement meth - od, although it is considered “extraordinary” and is rarely used. Pursuant to a writ of sequestration, the sheriff is directed to take possession of and hold a debtor’s property, and to collect and hold any income from the property until the debtor complies with the order. Where there is a writ of sequestration, the prop - erty is not sold. Receivers Finally, a receiver can be appointed by a court where it is “just or convenient to do so” (Section 101 of the Courts of Justice Act). The court may authorise a receiver to recover and sell the debtor’s property to satisfy the remaining judgment or debt. 2.3 Costs and Time Taken to Enforce Domestic Judgments The costs involved and the length of time taken in enforcing a judgment can vary dramatically, depend - ing largely on whether there are any known assets in the jurisdiction and how straightforward (or difficult) it is to obtain those assets. Although the simplest scenario would involve a vol - untary payment by the debtor, the most straightfor - ward enforcement scenario involves a debtor who has known, readily available assets (ideally cash) that are held in the debtor’s own name and are not immune from seizure and/or sale. In such a scenario, the costs are correspondingly minimal, with limited legal fees and only modest court filing fees.
If the creditor does not have knowledge of the extent or location of the debtor’s assets, the first step is often to conduct an examination in aid of execution to iden - tify exigible assets. Counsel fees will vary for such examinations, depending on the nature of the debtor (eg, examining fraudsters who are not expected to tell the truth will require more strategic thinking). The examination can also give rise to undertakings by the debtor to produce documents or further information, which – in turn – can give rise to a re-attendance to complete the examination at a later date. In Ontario, one examination in aid of execution is allowed in a 12-month period for the same proceed - ing. If the creditor seeks to re-examine a debtor (as opposed to continuing an existing examination to ask questions arising from undertakings) within one year, they will need an order from the court. A court order is also required if the creditor seeks to examine a third party in aid of execution. The timeframe and costs will increase where the debtor attempts to avoid or frustrate such examinations or the debtor attempts to transfer assets fraudulently to avoid enforcement. In the event of such a fraudulent transfer, fresh legal proceedings arising from the enforcement efforts will sometimes be required (eg, in order to name one or more new defendants who may have received trans - ferred assets from the debtor). Execution on a judgment itself can be complex; for example, if execution may give rise to a breach of the peace, the sheriff may require the assistance of the police. Seizing monies in a known bank account can be rela - tively swift, straightforward and inexpensive; seizing and selling real or personal property, appointing a receiver, liquidating business assets and securities are generally more complex and costly. If there are no known assets and the creditor cannot reliably discover assets by an examination in aid of execution, creditors will often hire an investigator or an asset-tracing firm. For simple investigative services involving local debtors, the fees are generally a few thousand dollars. However, more complex enforce - ment costs can involve significant international inves - tigations of corporate dealings, offshore trusts, etc,
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