In the past, judgment enforcement law was found in many uncoordinated and dated statutes. Changes to Saskatchewan legislation modernized and centralized the rules into one “code”, The Enforcement of Money Judgments Act.
One notable improvement is at the preliminary fact finding stage. Judgment enforcement is limited by the information you have about the judgment debtor, especially their assets and sources of income. The changes reduce some of the weaknesses in the present system by providing more options, varying in their degree of coerciveness. A judgment creditor will have more flexibility to tailor its approach to the specific situation, based on the cooperation it is receiving from the judgment debtor.
Arguably the biggest change is eliminating different remedies for different types of property. Formerly, the two most common enforcement options were garnishment (used to confiscate money owing to the judgment debtor by a third party) and seizure of property under a writ of execution (used for tangible property such as vehicles or land). These two remedies were distinct, with different procedures contained in separate pieces of legislation. The drafters of the new legislation realized there was no need to maintain different systems. Therefore, the EMJA eliminates the distinction between garnishment and execution and provides one single remedy, called an “enforcement charge”, which attaches to all types of property. The judgment creditor registers its judgment to create the enforcement charge, and then instructs the Sheriff to “seize” the property of the judgment debtor pursuant to the charge. There are some differences in the method of seizing the property depending on the type of property involved, but the overall process simplifies and centralizes judgment enforcement under one system.
The EMJA also addresses some specific limitations of the former law. For example, the Act allows enforcement of the judgment against joint property. Until now, a judgment creditor could not seize or force the sale of assets the debtor held jointly with a third party. You can imagine a creditor’s frustration to learn, for example, that a judgment debtor owns a significant amount of land and a bank account which cannot be seized because the property is owned jointly with the debtor’s spouse.
The EMJA addresses this. An enforcement charge severs the joint interest with the third party and allows the judgment creditor to seize and sell the judgment debtor’s portion of the property.
The EMJA also makes it much easier to seize the wages of the judgment debtor. The former system for the garnishment of wages was cumbersome and often ineffective. Money owed to the debtor was“seized” by serving a garnishee summons on the third party. The process had to be repeated every time a new payment was due to the debtor (i.e. every single payday). Unless the creditor is able to obtain some solid information about when the debtor’s payday is, it probably had to engage in a process of trial and error and serve several garnishee summons before hitting the right day.
The EMJA addresses this by making the enforcement charge of continuing effect. Therefore, once the Sheriff has served notice on the third party, all amounts due to the judgment debtor for the next 12 months are “seized” as soon as they become payable. There are exceptions to the continuing nature of the enforcement charge (for example, bank accounts), but for wages at least, the continuing nature of the enforcement charge is a significant time and cost saver for a judgment creditor.
These features of The Enforcement of Money Judgments Act will significantly improve a creditor’s chances of recovery on a court judgment. At the risk of sounding like a broken record, however, judgment enforcement is still something to be avoided where possible through solid lending practices at the outset.