Federal Courts Rules (SOR/98-106)

Marginal note:Second writ where sum unascertained

443 Where the payment of an ascertained sum of money and an unascertained sum of money or costs is ordered, if, at the time when the ascertained sum becomes payable, the unascertained sum or costs have not been assessed, the person who is entitled to enforce the order may request the issuance of a writ of seizure and sale to enforce payment of the ascertained sum and, after the unascertained sum or costs have been assessed, may request the issuance of a second writ to enforce payment thereof.

Marginal note:Order under $200

444 Where an order for payment of less than $200 does not entitle the plaintiff to costs against the person against whom a writ of seizure and sale to enforce the order is issued, the writ may not authorize the sheriff to whom it is directed to levy any fees or costs of execution.

Marginal note:Sale of interest in property

445 Any interest of a judgment debtor in property may be sold under a writ of seizure and sale.

Marginal note:Sale of real property or immoveables

446 Real property or immoveables shall not be sold under a writ of seizure and sale within a shorter period than that provided for by the laws of the province in which the real property or immoveables are situated or any longer period ordered by the Court.

Marginal note:Property bound by writ

447 Property is bound for the purpose of execution of an order as of the date of the delivery to the sheriff of a writ of seizure and sale.

Marginal note:Laws of province apply

448 In seizing, advertising for sale or selling property, a sheriff shall, except as otherwise provided in the writ or in these Rules, follow the laws applicable to the execution of similar writs issued by a superior court of the province in which the property was seized.

Garnishment Proceedings

Marginal note:Notice of garnishment

• 449 (1) Subject to rules 452 and 456 and on requisition filed by a judgment creditor in Form 449A, a designated officer may issue a notice of garnishment, in Form 449B, for the attachment of the following debts to satisfy an order for the payment of money:

  • (a) a debt owing or accruing from a person in Canada to a judgment debtor; or

  • (b) a debt owing or accruing from a person outside Canada to a judgment debtor, if the debt is one for which the person might be sued in Canada by the judgment debtor.

• Marginal note:Requisition — notice of garnishment

  (2) The requisition shall be accompanied by a copy of the order for the payment of money and an affidavit that contains the following information:

  • (a) the date and amount of any payment received since the order was made;

  • (b) the amount owing, including postjudgment interest;

  • (c) the manner in which the amount owing and the postjudgment interest are calculated;

  • (d) the address of the judgment debtor;

  • (e) the name and address of each garnishee;

  • (f) a statement indicating that the judgment creditor believes that the garnishees are or will become indebted to the judgment debtor and the grounds for the belief;

  • (g) if a garnishee is not then indebted but will become indebted to the judgment debtor, details with respect to the date on and the circumstances under which the debt will arise;

  • (h) details of the debts; and

  • (i) any other information that is necessary to establish the amount awarded and the judgment creditor’s entitlement.

• Marginal note:Service

  (3) The judgment creditor shall serve on each garnishee and on the judgment debtor a copy of the notice of garnishment and a copy of the requisition.

• Marginal note:Debts bound as of time of service

  (4) Subject to rule 452, a notice of garnishment binds the debts attached as of the time of its service on the garnishee.

• Marginal note:No payment to judgment debtor

  (5) Subject to rule 452, a garnishee who has been served with a notice of garnishment shall not pay the judgment debtor any amount owing to the judgment debtor without leave of the Court.

• Marginal note:Sworn declaration of garnishee

  (6) Within 21 days after the day on which the garnishee is served with the notice of garnishment, the garnishee shall file and serve on the judgment creditor and judgment debtor a sworn declaration of garnishee, in Form 449C, that contains

  • (a) a list of all debts owing or accruing to the judgment debtor by the garnishee by reason of an obligation incurred on or before the day of the garnishee’s declaration; and

  • (b) if the garnishee disputes liability to pay a debt claimed to be owing or accruing to the judgment debtor or claims the debt is for a lesser amount than that set out in the notice of garnishment, any relevant information, including any supporting documents not contained in the requisition for the issuance of a notice of garnishment.

Marginal note:Order or certificate not to be contested

449.1 In a proceeding under any of rules 449 to 465, a judgment debtor shall not contest the order or certificate that gave rise to the garnishment.

Marginal note:Payment into Court by garnishee

450 A garnishee who admits liability for a debt due to a judgment debtor shall pay into court the debt, or as much of the debt as is sufficient to satisfy the judgment, and give notice of the payment to the judgment creditor.

Marginal note:Garnishment order

• 451 (1) If a garnishee does not file a declaration of garnishee under subsection 449(6) or make the payment into court under rule 450, the Court may, on motion by the judgment creditor, order the garnishee to pay the amount owing to the judgment creditor as if the garnishee were the judgment debtor.

• Marginal note:Future payment

  (2) If a debt owed to a judgment debtor is payable at a future time or is subject to a condition when a notice of garnishment is issued, an order under subsection (1) may require that the garnishee pay the debt to the judgment creditor when the debt becomes payable or the condition is fulfilled.

• Marginal note:Enforcement

  (3) An order under subsection (1) may be enforced in the same manner as any other order for the payment of money.

Marginal note:Exemption from seizure

452 If a debt owing or accruing to a judgment debtor is in respect of wages or salary, no portion of the wages or salary that is exempt from seizure or attachment under the law of the province where the debt is payable shall be attached under a notice of garnishment.

Marginal note:Summary determination of liability

• 453 (1) If a garnishee disputes liability to pay a debt claimed to be owing or accruing to the judgment debtor or claims that the debt is for a lesser amount than that set out in the notice of garnishment, the Court may, on motion, summarily determine the garnishee’s liability or order that it be determined in any manner that the Court directs.

• Marginal note:Service and filing

  (2) The party bringing the motion shall serve and file the notice of motion on all other parties within the following time limit:

  • (a) in the case of a motion brought by the judgment creditor or judgment debtor, within 21 days after the day on which that party is served with the declaration of garnishee; and

  • (b) in the case of a motion brought by the garnishee, within 21 days after the day on which the judgment creditor or judgment debtor is served with the declaration of garnishee, whichever is the earlier.

Marginal note:Discharge of liability

454 A payment made by a garnishee under rule 450 or in compliance with a notice of garnishment issued under subsection 449(1) or an order under rule 451 or 453, and any execution levied against a garnishee under such a notice of garnishment or order, constitutes a valid discharge of the garnishee’s liability to the judgment debtor to the extent of the amount paid or levied, even if the attachment is later set aside or the order or notice of garnishment from which it arose is later reversed.

Marginal note:Other interested person

• 455 (1) A person, other than a judgment debtor, who claims to have an interest in the debt sought to be attached may, by motion, state the nature of their interest and the relief sought.

• Marginal note:Determination of validity of claim

  (2) On motion brought under subsection (1), the Court may summarily determine the questions at issue between the claimants or order that they be determined in any manner that it directs.

Marginal note:Order for payment

• 456 (1) A judgment creditor shall not file a requisition under subsection 449(1) in respect of money that is standing to the credit of the judgment debtor in court. However, they may bring a motion for an order that the money, or a lesser amount sufficient to satisfy the order sought to be enforced and the costs of the motion, be paid to the judgment creditor.

• Marginal note:Limitation

  (2) If a motion is brought under subsection (1), the money to which the motion relates shall not be paid out of court until after the determination of the motion.

• Marginal note:Service of notice of motion

  (3) Unless the Court directs otherwise, the notice of a motion brought under subsection (1) shall be served on the judgment debtor and filed at least seven days before the day fixed for the hearing of the motion.

Marginal note:Costs related to requisition

457 Unless the Court directs otherwise, the costs of a requisition under subsection 449(1) and any related proceedings shall be retained by the judgment creditor out of the money recovered and be in priority to the judgment debt.

Charging Orders

Marginal note:Order for interim charge and show cause

• 458 (1) On the ex parte motion of a judgment creditor, the Court may, for the purpose of enforcing an order for the payment of an ascertained sum of money,

  • (a) make an order imposing an interim charge for securing payment of that sum and any interest thereon

    • (i) on real property or immoveables, or on an interest in real property or a right in immoveables, if the judgment debtor, directly or indirectly, owns the real property or immoveables, holds an interest in the real property, including a beneficial interest, or holds an immoveable right or has a claim to the immoveables, including as beneficiary under a trust or succession, in Form 458A, or

    • (ii) on any interest or right, including a beneficial interest, in any shares, bonds or other securities specified in the order, to which the judgment debtor is directly or indirectly entitled, in Form 458B; and

  • (b) order the judgment debtor to show cause, at a specified time and place, why the charge should not be made absolute.

• Marginal note:Service of show cause order

  (2) Unless the Court directs otherwise, an order made under subsection (1) shall be served on the judgment debtor and, where the order relates to property referred to in subparagraph (1)(a)(ii), on the corporation, government or other person or entity by whom the securities were issued, at least seven days before the time appointed for the hearing.