G. Garnishment; Attachment; Execution

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 455-457

Page 455

The British Columbia Court of Appeal²⁶has held that ordinary garnishment law should not be applied to the enforcement of support orders unless it is consistent with the "social purposes" of the British Columbia Family Maintenance Enforcement Act. Section 16(4) of the Family Maintenance Enforcement Act (B.C.) sets out only two instances wherein a court may set aside an attachment order: (i) where the attachee is no longer liable; (ii) where the Notice of Attachment contains or is based on a material error. Furthermore, the court’s power to increase the amount of salary exempt from attachment is also very limited. Section 13.1(3) of the regulation relating to the Family Maintenance Enforcement Act (B.C.) permits a court to increase the normal exemption only if such an increase is necessary to enable the debtor to meet her basic needs for food, shelter, or clothing.²⁷Failure to give notice of the filing

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of a maintenance order or to serve a notice of attachment on a defaulter, coupled with an incorrect statement of the amount of arrears, do not warrant intervention, if the Director of Family Maintenance Enforcement took reasonable steps to serve the respondent and no prejudice was suffered by the respondent as a result of the error in amount.²⁸Where there have been problems with the payment of support on time, with consequential budgeting and planning problems for the payee, and the payor undertakes to make timely payments through the court, an order of the court may direct that if any payment is late, a garnishee notice will be issued without further notice to the parties.²⁹Service of a notice of garnishment by ordinary mail pursuant to Rule 6(2)(a) of the Ontario Family Law Rules is prima facie evidence that the documents were received by the addressee. If the addressee satisfies the court on the balance of probabilities that the documents were not received, he is not liable to pay the support creditor the amount previously paid to the support debtor in ignorance of the mailed notice of garnishment.³⁰The Ontario Court of Justice has no jurisdiction to grant equitable relief nor any jurisdiction to determine the priorities of competing creditors by way of an interpleader motion or declaratory judgment, but a support debtor’s interest in a law partnership is garnishable under section 43 of the Partnerships Act.³¹An employer who fails to comply with an order garnishing a support defaulter’s wages is liable to make good the...