ORDERS
EFFECTIVE DATE
59.01 An order is effective from the date on which it is made, unless it provides otherwise.
ENDORSEMENT BY JUDGE OR OFFICER
59.02 (1) An endorsement of every order shall be made on the appeal book, record, notice of motion or notice of application by the court, judge or officer making it, unless the circumstances make it impractical to do so.
(2) Where written reasons are delivered,
(a) in an appellate court, an endorsement is not required;
(b) in any other court, the endorsement may consist of a reference to the reasons,
and a copy of the reasons shall be filed in the court file.
PREPARATION AND FORM OF ORDER
Preparation of Draft Formal Order
59.03 (1) Any party affected by an order may prepare a draft of the formal order and send it to all other parties represented at the hearing for approval of its form.
(2) [Revoked O. Reg. 739/94, s.3]
General Form of Order
(3) An order shall be in Form 59A (order), 59B (judgment) or 59C (order or certificate on appeal) and shall contain,
(a) the name of the judge or officer who made it-,
(b) the date on which it was made; and
(c) a recital of the particulars necessary to understand the order, including the date of the hearing, the parties who were present or represented by counsel and those who were not, and any undertaking made by a party as a condition of the order.
(4) The operative parts of an order shall be divided into paragraphs, numbered consecutively.
Order Directing Payment for Minor
(5) An order directing payment into court or to a trustee on behalf of a minor shall show the minor's birth date and full address and shall direct that a copy of the order be served on the Children's Lawyer.
Order for Costs
(6) An order for the payment of costs shall direct payment to the party entitled to receive the costs and not the party's solicitor.
Order on which Interest Payable
(7) An order for the payment of money on which postjudgment interest is payable shall set out the rate of interest and the date from which interest is payable.
Support Order
(8) An order for the payment of support shall set out, under the signature line, the last known address of the support creditor and debtor.
SIGNING ORDERS
General
59.04 (1) Every order shall be submitted in accordance with subrules (5) to (9) for the signature of,
(a) in the case of an order of the Court of Appeal, the Registrar of the court; or
(b) in any other case, the registrar at the place of hearing or where the proceeding was commenced,
unless the court, judge or officer who made the order has signed it.
(2) Where an order states that it may be signed only on the filing of an affidavit or the production of a document, the registrar shall examine the affidavit or document and ascertain that it is regular and sufficient before signing the order.
(3) Where a judge ceases to hold office or becomes incapacitated after making an order but before it is signed, another judge may settle and sign it.
(4) Where a master ceases to hold office or becomes incapacitated after making an order but before it is signed, another master or a judge may settle and sign it.
Signing Where Form of Draft Order Approved
(5) Where all the parties represented at the hearing have approved the form of the order, the party who prepared the draft order shall,
(a) file the approval of all the parties represented at the hearing, together with a copy of the order; and
(b) leave the order with the registrar for signing.
(6) [Revoked O. Reg. 739/94, s.4]
Support Order
(7) A party who leaves a support order with the registrar for signing shall also leave a copy of the order for filing in the office of the Director of the Family Responsibility Office.
Where Registrar Satisfied
(8) Where the registrar is satisfied that the order is in proper form, he or she shall sign the order and return it to the party who left it to be signed.
Where Registrar not Satisfied
(9) Where the registrar is not satisfied that the order is in proper form, he or she shall return the order unsigned to the party who left it to be signed and the party may,
(a) submit the order in proper form and, if required by the registrar, file the approval of the parties to the order in that form, together with a copy of the order; or
(b) obtain an appointment to have the order settled by the court, judge or officer that made it and serve notice of the appointment on all other parties who were represented at the hearing.
Appointment to Settle Where Form of Draft Order not Approved
(10) Where approval is not received within a reasonable time, a party may obtain an appointment to have the order settled by the registrar or, where the registrar considers it necessary, by the court, judge or officer that made it, and notice of the appointment shall be served on all other parties who were represented at the hearing.
Urgent Cases
(11) In a case of urgency, the order may be settled and signed by the court, judge or officer that made it without the approval of any of the parties who were represented at the hearing.
Appointment to Settle Disputed Order before Judge or Officer
(12) Where an objection is taken to the proposed form of the order in the course of its settlement before a registrar, the registrar shall settle the order in the form he or she considers proper and the objecting party may obtain an appointment with the court, judge or officer that made the order to settle the part of the order to which objection has been taken and serve notice of the appointment on all other parties who were represented at the hearing.
(13) Where the order was made by a court that consisted of more than one judge, the appointment shall be with the judge who presided at the hearing or, where he or she is unavailable, any other judge who was present at the hearing.
(14) The judge with whom an appointment is obtained under subrule (11) may refer the settling of the order to the full court that made the order.
(15) Where an appointment is not obtained under subrule (12) or (13) within seven days after the registrar settles the order, a party may require the registrar to sign the order as settled by him or her.
(16) After an order has been settled under subrule (12) by the judge or officer who made it, or under subrule (13) or (14), the registrar shall sign it unless it was signed by a judge or officer at the time it was settled.
ENTRY OF ORDER
Every Order to be Entered and Filed
59.05 (1) Every order shall be entered in accordance with subrules (2) to (6) immediately after it is signed and the party having the order signed shall give to the registrar the original and a sufficient number of copies for the purpose of entering and filing it.
(2) The registrar shall enter an order by,
(a) noting at the foot of the original the entry book in which a copy is to be inserted or the microfilm on which the original is to be photographed, together with the date of the insertion or photograph; and
(b) inserting a copy in an entry book or microfilming the original.
Where Order to be Entered and Filed
(3) Every order shall be entered in the office of the registrar in which the action or application was commenced and a copy of the order as entered shall be filed in the court file.
(4) Where an order in a subsequent action or application affirms, reverses, sets aside, varies or amends an earlier order, it shall be entered not only in the office described in subrule (3) but also in the office in which the earlier order was entered.
(5) An order of the Court of Appeal shall be entered not only in the office described in subrule (3) but also in the office of the Registrar of the Court of Appeal.
(6) The certificate of the Registrar of the Supreme Court of Canada in respect of an order made on an appeal to that court shall be entered by the local registrar at Toronto and by the registrar in the office where the action or application was commenced, and all subsequent steps may be taken as if the order had been made in the court from which the appeal was taken.
AMENDING, SETTING ASIDE OR VARYING ORDER
Amending
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate, may be amended on a motion in the proceeding.
Setting Aside or Varying
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed.
SATISFACTION OF ORDER
59.07 A party may acknowledge satisfaction of an order in a document signed by the party before a witness, and the document may be filed and entered in the court office where the order was entered.
RULE 60 ENFORCEMENT OF ORDERS
DEFINITIONS
60.01 In rules 60.02 to 60.19,
"creditor" means a person who is entitled to enforce an order for the payment or recovery of money;
"debtor" means a person against whom an order for the payment or recovery of money may be enforced.
ENFORCEMENT OF ORDER FOR PAYMENT OR RECOVERY OF MONEY
General
60.02 (1) In addition to any other method of enforcement provided by law, an order for the payment or recovery of money may be enforced by,
(a) a writ of seizure and sale (Form 60A) under rule 60.07;
(b) garnishment under rule 60.08;
(c) a writ of sequestration (Form 60B) under rule 60.09; and
(d) the appointment of a receiver.
Recovery of Costs without Order Awarding Costs
(2) Where under these rules a party is entitled to costs on the basis of a certificate of assessment of costs without an order awarding costs, and the costs are not paid within seven days after the certificate of assessment of costs is signed, the party may enforce payment of the costs by the means set out in subrule (1) on filing with the registrar an affidavit setting out the basis of entitlement to costs and attaching a copy of the certificate of assessment.
Electronic Filing of Declaration
(3) Where a party may enforce payment of costs under subrule (2), payment may be enforced under the rule 60.07 by a writ of seizure and sale (Form 60A) by filing electronically under sub rule 4.05.1(2) a declaration setting out the basis of the entitlement to costs.
ENFORCEMENT OF ORDER FOR POSSESSION OF LAND
60.03 An order for the recovery or delivery of the possession of land may be enforced by a writ of possession (Form 60C) under rule 60.10.
ENFORCEMENT OF ORDER FOR RECOVERY OF PERSONAL PROPERTY
60.04 (1) An order for the recovery of possession of personal property other than money may be enforced by a writ of delivery (Form 60D), which may be obtained on filing with the registrar a requisition together with a copy of the order as entered.
(2) Where the property is not delivered up under a writ of delivery, the order may be enforced by a writ of sequestration (Form 60B) under rule 60.09.
ENFORCEMENT OF ORDER TO DO OR ABSTAIN FROM DOING ANY ACT
60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.
ENFORCEMENT BY OR AGAINST A PERSON NOT A PARTY
60.06 (1) An order that is made for the benefit of a person who is not a party may be enforced by that person in the same manner as if the person were a party.
(2) An order that may be enforced against a person who is not a party may be enforced against that person in the same manner as if the person were a party.
WRIT OF SEIZURE AND SALE
Where Available Without Leave
60.07 (1) Where an order may be enforced by a writ of seizure and sale, the creditor is entitled to the issue of one or more writs of seizure and sale (Form 60A), on filing with the registrar a requisition setting out,
(a) the date and amount of any payment received since the order was made; and
(b) the amount owing and the rate of postjudgment interest,
together with a copy of the order as entered and any other evidence necessary to establish the amount awarded and the creditor's entitlement.
Electronic Issue of Writ
(1.1) Where an order may be enforced by a writ of seizure and sale, a creditor is entitled to the electronic issue of one or more writs of seizure and sale on filing electronically under subrule 4.05.1(2) a requisition setting out,
(a) the date and amount of any payment received since the order was made; and
(b) the amount owing and the rate of post judgment interest.
(1.2) Where the Workplace Safety and Insurance Board is entitled to file a certificate under section 139 of the Workplace Safety and Insurance Act, 1997, the Board is entitled to the electronic issue of one or more writs of seizure and sale on filing electronically a requisition setting out,
(a) the date and amount of any payment received since the order was made; and
(b) the amount owing and the rate of post judgment interest.
Order Deemed Entered
(1.3) Where a creditor files a requisition under subrule (1.1), the order to which the requisition relates shall be deemed to have been entered as an order of the Superior Court of Justice.
(1.4) Where the Workplace Safety and Insurance Board files a requisition under sub rule (1.2), the certificate referred to in that sub rule shall be deemed to have been entered as an order of the Superior Court of Justice.
Where Leave is Required
(2) If six years or more have elapsed since the date of the order, or if its enforcement is subject to a condition, a writ of seizure and sale shall not be issued unless leave of the court is first obtained.
(3) An order granting leave to issue a writ of seizure and sale ceases to have effect if the writ is not issued within one year after the date of the order granting leave, but the court may grant leave again on a subsequent motion.
Order for Payment into Court
(4) Where an order is for the payment of money into court, the writ of seizure and sale shall contain a notice that all money realized by the sheriff under the writ is to be paid into court.
Order for Payment at Future Time
(5) Where an order is for payment at or after a specified future time, the writ of seizure and sale shall not be issued until after the expiration of that time.
Duration and Renewal
(6) A writ of seizure and sale remains in force for six years from the date of its issue and for a further six years from each renewal.
(7) [Revoked O. Reg. 452/98, s. 5(2).]
(8) A writ of seizure and sale that is filed with a sheriff may be renewed before its expiration by filing a request to renew (Form 60E) with the sheriff, who shall record the date of renewal.
(8.1) A creditor may file electronically under subrule 4.05.1(2) a request to renew under sub rule (8).
(9) A writ of seizure and sale that is not filed with a sheriff may be renewed before its expiration by filing with the registrar who issued it a requisition to renew the writ, and the registrar shall renew the writ and record the date of renewal.
Change or Variation of Debtor's Name
(10) Where a debtor named in a writ of seizure and sale,
(a) changes his, her or its name after the writ is issued;
(b) uses an alias; or
(c) uses a variation of spelling of the name,
the creditor may on motion made without notice seek a change or variation to the writ.
(11) On a motion referred to in subrule (10), the court may order the
sheriff to,
(a) amend the writ by adding the words "now or also known as", followed by the new name of the debtor, the alias or the spelling variation;
(b) amend the index of writs to show the new name, the alias or the spelling variation; and
(c) if a copy of the writ was sent to the land registrar for filing under the Land Titles Act, send a copy of the amended writ to the land registrar.
(11.1) On a motion referred to in subrule (10), the court may grant the creditor leave to file an amendment to the writ electronically under subrule 4.05.1(2) to show the new name, the alias or the spelling variation.
Writ to Bear Creditor's Address
(12) Every writ of seizure and sale shall bear the name and address of the
creditor and the creditor's solicitor, if any.
Change of Address
(12.1) If the address of the creditor or the creditor's solicitor changes after the writ is issued, the creditor may have the new address noted on the writ by filing a requisition to that effect with the sheriff.
(12.2) If the address of the creditor or the creditor's lawyer changes after the writ is issued, the creditor may have the new address recorded by filing a change of address form electronically under subrule 4.05.1(2).
Direction to Enforce
(13) Where an order may be enforced by a writ of seizure and sale, a
creditor who has filed a writ of seizure and sale with a sheriff may file with the sheriff a copy of the order as entered, together with a direction to enforce (Form 60F) setting out,
(a) the date of the order and the amount awarded;
(b) the rate of postjudgment interest payable;
(c) the costs of enforcement to which the creditor is entitled under rule 60.19
(d) the date and amount of any payment received since the order was made; and
(e) the amount owing, including post judgment interest,
and directing the sheriff to enforce the writ for the amount owing, subsequent
interest and the sheriff's fees and expenses.
Sheriff may Decline to Enforce
(13.1) The sheriff may decline to enforce the writ of seizure and sale, and the creditor may make a motion to the court for directions, where the sheriff is uncertain whether the writ of seizure and sale has been properly issued or filed.
Property in Hands of Receiver
(14) A writ of seizure and sale shall not be enforced against property in
the hands of a receiver appointed by a court.
Seizure of Personal Property
(15) Where personal property is seized under a writ of seizure and sale,
the sheriff shall, on request, deliver an inventory of the property seized to the debtor or the debtor's agent or employee before or, where this is not practicable, within a reasonable time after the property is removed from the premises on which it was seized.
Sale of Personal Property
(16) Personal property seized under a writ of seizure and sale shall not be
sold by the sheriff unless notice of the time and place of the sale has been, (a) mailed to the creditor at the address shown on the writ or the creditor's solicitor and to the debtor at the debtor's last known address, at least ten days before the sale; and
(b) published in a newspaper of general circulation in the place where the property was seized.
Sale of Land
(17) A creditor may not take any step to sell land under a writ of seizure and sale until four months after the writ was filed with the sheriff or, where the writ has been withdrawn, four months after the writ was re-filed.
(18) No sale of land under a writ of seizure and sale may be held until six months after the writ was filed with the sheriff or, where the writ has been withdrawn, six months after the writ was re-filed.
(19) A sale of land shall not be held under a writ of seizure and sale unless notice of the time and place of sale has been,
(a) mailed to the creditor at the address shown on the writ or to the creditor's solicitor and to the debtor at the debtor's last known address, at least thirty days before the sale;
(b) published in The Ontario Gazette once at least thirty days before the sale and in a newspaper of general circulation in the place where the land is situate, once each week for two successive weeks, the last notice to be published not less than one week nor more than three weeks before the date of sale; and
(c) posted in a conspicuous place in the sheriff's office for at least thirty days before the sale.
(20) The notice shall set out,
(a) a short description of the property to be sold;
(b) the short title of the proceeding;
(c) the time and place of the intended sale; and
(d) the name of the debtor whose interest is to be sold.
(21) The sheriff may adjourn a sale to a later date where the sheriff considers it necessary in order to realize the best price that can be obtained in all the circumstances, and where the sale is adjourned, it may be conducted on the later date with such further notice, if any, as the sheriff considers advisable.
(22) Where notice of a sale of land under a writ of seizure and sale is published in The Ontario Gazette before the writ expires, the sale may be completed by a sale and transfer of the land after the writ expires.
Abortive Sale
(23) Where personal property or land seized under a writ of seizure and
sale remains unsold for want of buyers, the sheriff shall notify the creditor of the date and place of the attempted sale and of any other relevant circumstances.
(24) On receipt of a notice under subrule (23), the creditor may instruct the sheriff in writing to sell the personal property or land in such manner as the sheriff considers will realize the best price that can be obtained.
WARRENT ISSUED BY THE MINISTER OF FINANCE
Application of Rules
60.07.1 (1) These rules apply, with necessary modifications, to a warrant that is issued by the Minister of Finance under an Act and directed to a sheriff, as if the warrant were a writ of seizure and sale.
Electronic Filing
(2) A warrant described in subrule (1) may be filed electronically under subrule 4.05.1(3).
Direction to Enforce
(3) When a warrant described in subrule (1) has been filed with the sheriff, the Minister of Finance may file with the sheriff a direction to enforce setting out,
(a) the date and amount of the warrant;
(b) the rate of interest payable;
(c) the date and amount of any payment received since the warrant was issued; and
(d) amount owing under the warrant, including interest,
and directing the sheriff to enforce the warrant for the amount owing, subsequent interest and the sheriff's fees and expenses.
GARNISHMENT
Where Available
60.08 (1) A creditor under an order for the payment or recovery of money may enforce it by garnishment of debts payable to the debtor by other persons.
Joint Debts Garnishable
(1.1) Where a debt is payable to the debtor and to one or more co-owners, the greater of the debtor's ownership interest if known to the garnishee, or one-half of the indebtedness may be garnished.
Where Leave Required
(2) If six years or more have elapsed since the date of the order, or its enforcement is subject to a condition, a notice of garnishment shall not be issued unless leave of the courts is first obtained.
(3) An order granting leave to issue a notice of garnishment ceases to have effect if the notice is not issued within one year after the date of the order granting leave, but the court may grant leave again on a subsequent motion.
Obtaining Notice of Garnishment
(4) A creditor under an order for the payment or recovery of money who seeks to enforce it by garnishment shall file with the registrar where the proceedings was commenced a requisition for garnishment (Form 60G) together with a copy of the order as entered, any other evidence necessary to establish the amount awarded and the creditor's entitlement, and an affidavit stating,
(a) the date and amount of any payment received since the order was made;
(b) the amount owing, including postjudgment interest;
(c) details of how the amount owing and the prejudgment interest are calculated;
(c.1) the address of the debtor;
(d) the name and address of each person to whom a notice of garnishment is to be directed;
(e) that the creditor believes that those persons are or will become indebted to the debtor and the grounds for the belief;
(f) such particulars of the debts as are known to the creditor;
(g) where a person to whom a notice of garnishment is to be directed is not in Ontario, that the debtor is entitled to sue that person in Ontario to recover the debt, and the basis of entitlement to sue in Ontario; and
(h) where a person to whom a notice of garnishment is to be directed is not then indebted but will become indebted to the debtor, such particulars of the date on and the circumstances under which the debt will arise as are known to the creditor.
(5) The affidavit required by subrule (4) may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
(6) On the filing of the requisition and affidavit required by subrule (4), the registrar shall issue notices of garnishment (Form 60G) naming as garnishees the persons named in the affidavit and shall send a copy of each notice of garnishment to the sheriff of the county in which the debtor resides or, if the debtor resides outside Ontario, to the sheriff of the county in which the proceeding was commenced.
(6.1) A notice of garnishment issued under subrule (6) shall name one debtor and one garnishee.
Service of Notice of Garnishment
(7) The creditor shall serve the notice of garnishment,
(a) on the debtor, together with a copy of the affidavit required by subrule (4); and
(b) on the garnishee, with a blank garnishee's statement (Form 60H) attached.
(8) The notice of garnishment shall be served by ordinary mail, or by personal service or an alternative to personal service under rule 16.03.
(9) A notice of garnishment may be served outside Ontario if the debtor would be entitled to sue the garnishee in Ontario to recover the debt.
(10) If the garnisheee is a financial institution, the notice of garnishment and all further notices required to be served under this rule shall be served at the branch at which the debt is payable, unless subrule (10.1) applies.
(10.1) If the garnishee is a financial institution to which the Bank Act (Canada), the Cooperative Credit Associations Act (Canada) or the Trust and Loan Companies Act (Canada) applies and the garnishment enforces an order described in subsection 34(1) of the Family Law Act or a support order as defined in subsection 2(1) of the Divorce Act (Canada) or in section 1 of the Family Responsibility and Support Arrears Enforcement Act, 1996, the notice of garnishment and all further notices required to be served under this rule,
(a) shall be served at the designated office of the institution established for this purpose; and
(b) shall be accompanied by a statement to garnishee financial institution re support in Form 29J of the Family Law Rules
Garnishee Liable from Time of Service
(11) The garnishee is liable to pay to the sheriff any debt of the garnishee to the debtor, up to the amount shown in the notice of garnishment or supplementary notice of garnishment, less $10 for the cost of making each payment, within ten days after service on the garnishee or ten days after the debt becomes payable, whichever is later.
(12) For the purposes of subrule (11), a debt of the garnishee to the debtor includes a debt payable at the time the notice of garnishment is served and a debt,
(a) payable within six years after the notice is served; or
(b) payable on the fulfilment of a condition within six years after the notice is served.
(13) For the purposes of subrule (11), a debt of the garnishee to the debtor does not include,
(a) if the garnishee is a finanicial institution, money in an account opened after the notice of garnishment is served;
(b) if the garnishee is an employer, a debt arising out of employment that commences after the notice is served; or
(c) if the garnishee is an insurer, a debt payable under an insurance policy that is entered into after the notice is served.
Payment by Garnishee to Sheriff
(14) A garnishee who admits owing a debt to the debtor shall pay it to the sheriff in the manner prescribed by the notice of garnishment, subject to section 7 of the Wages Act.
When Garnishee Must Serve Statement
(15) A garnishee who wishes for any reason to dispute the garnishment or who pays to the sheriff less than the amount set out in the notice of garnishment because the debt is owed to the debtor and to one or more co-owners or for any other reason shall, within ten days after service of the notice of garnishment, serve on the creditor and the debtor and file with the court a garnishee's statement (Form 60I) setting out the particulars.
Notice to Co-owner of the Debt
(15.1) When a creditor is served with a garnishee's statement that indicates that the debt is owed to the debtor and to one or more co-owners, the creditor shall forthwith serve the co-owners with a notice to co-owner of the debt (Form 60I.1) and a copy of the garnishee's statement.
(15.2) The notice to co-owner of the debt and the copy of the garnishee's statement shall be served by personal service or an alternative to personal service under Rule 16.03.
Garnishment Hearing
(16) On motion by a creditor, debtor, garnishee, co-owner of the debt or any other interested person, the court may,
(a) where it is alleged that the debt of the garnishee to the debtor has been assigned or encumbered, order the assignee or encumbrancer to appear and state the nature and particulars of his or her claim;
(b) determine the rights and liabilities of the garnishee, the debtor, any co=owner of the debt and any assignee or encumbrancer;
(c) vary or suspend periodic payments under a notice of garnishment; or
(d) determine any other matter in relation to a notice of garnishment,
and the court may proceed in a summary manner, but where the motion is made to a master and raises a genuine issue of fact or law, it shall be adjourned to be heard by a judge.
Enforcement against Garnishee
(16.1) A copy of a notice of motion for a garnishment hearing shall be served on the sheriff by ordinary mail, or by personal service or an alternative to personal service under rule 16.03.
Time for Motion
(16.2) A person who has been served with a notice to co-owner is not entitled to dispute the enforcement of the creditor's order for the payment or recovery of money or a payment made in accordance with the Creditor's Relief Act unless the person moves for a garnishment hearing within 30 days after being served with the notice.
(17) Where the garnishee does not pay to the sheriff the amount set out in the notice of garnishment as owing by the garnishee to the debtor and does not serve and file a garnishee's statement, the creditor is entitled on motion to the court, on notice to the garnishee, to an order against the garnishee for payment of the amount that the court finds is payable to the debtor by the garnishee, or the amount set out in the notice, whichever is less.
Payment by Garnishee to Person other than Sheriff
(18) Where, after service of a notice of garnishment, the garnishee pays a debt attached by the notice to a person other than the sheriff, the garnishee remains liable to pay the debt in accordance with the notice.
Effect of Payment to Sheriff
(19) Payment of a debt by a garnishee in accordance with a notice of garnishment is a valid discharge of the debt, as between the garnishee and the debtor and any co-owner of the debt, to the extent of the payment, including the amount deducted for the cost of making payment under subrule (11). (Amended Reg 194, December 28, 1996)
Creditor to Give Notice when Order Satisfied
(20) When the amount owing under an order that is enforced by garnishment has been paid, the creditor shall forthwith serve a notice of termination of garnishment (form 60J) on the garnishee and on the sheriff.
Payment when Debt Jointly Owned (Added Reg 194, December 28, 1996)
(21) Where a payment of a debt owed to the debtor and one or more co-owners has been made to the sheriff, no notice of motion for a garnishment hearing is delivered and the time for doing so has expired, the creditor may file with the sheriff, within 30 days thereafter,
(a) proof of service of the notice to co-owner; and
(b) an affidavit stating that the creditor believes that no co-owner of the debt in a person under disability and the grounds for the belief.
(22) The affidavit required by subrule (21) may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
(23) Where the creditor does not file the material referred to in subrule (21), the sheriff shall return the money to the garnishee.
WRIT OF SEQUESTRATION
Leave Required
60.09 (1) A writ of sequestration (Form 60B), directing a sheriff to take possession of and hold the property of a person against whom an order has been made and to collect and hold any income from the property until the person complies with the order, may be issued only with leave of the court, obtained on motion.
(2) The court may grant leave to issue a writ of sequestration only where it is satisfied that other enforcement measures are or are likely to be ineffective.
(3) In granting leave to issue a writ of sequestration, the court may order that the writ be enforced against all or part of the person's real and personal property.
Variation or Discharge
(4) The court on motion may discharge or vary a writ of sequestration on such terms as are just.
WRIT OF POSSESSION
Leave Required
60.10 (1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion without notice or at the time an order entitling a party to possession is made.
(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.
Duration
(3) A writ of possession remains in force for one year from the date of the order authorizing its issue, and may, before its expiry, be renewed by order for a period of one year from each renewal.
CONTEMPT ORDER
Motion for Contempt Order
60.11 (1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
(2) The notice of motion shall be served personally on the person against whom a contempt order is sought, and not by an alternative to personal service, unless the court orders otherwise.
(3) An affidavit in support of a motion for a contempt order may contain statements of the deponent's information and belief only with respect to facts that are not contentious, and the source of the information and the fact of the belief shall be specified in the affidavit.
Warrant for Arrest
(4) A judge may issue a warrant (Form 60K) for the arrest of the person against whom a contempt order is sought where the judge is of the opinion that the person's attendance at the hearing is necessary in the interest of justice and it appears that the person is not likely to attend voluntarily.
Content of Order
(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if he or she fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under rule 60.09 against the person's property.
Where Corporation is in Contempt
(6) Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation and may grant leave to issue a writ of sequestration under rule 60.09 against his or her property.
Warrant of Committal
(7) An order under subrule (5) for imprisonment may be enforced by the issue of a warrant of committal (Form 60K).
Discharging or Setting Aside Contempt Order
(8) On motion, a judge may discharge, set aside, vary or give directions in respect of an order under subrule (5) or (6) and may grant such other relief and make such other order as is just.
Order that Act be done by Another Person
(9) Where a person fails to comply with an order requiring him or her to do an act, other than the payment of money, a judge on motion may, instead of or in addition to making a contempt order, order the act to be done, at the expense of the disobedient person, by the party enforcing the order or any other person appointed by the judge.
(10) The party enforcing the order and any person appointed by the judge are entitled to the costs of the motion under subrule (9) and the expenses incurred in doing the act ordered to be done, fixed by the judge or assessed by an assessment officer in accordance with Rule 58.
FAILURE TO COMPLY WITH INTERLOCUTORY ORDER
60.12 Where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by these rules,
(a) stay the party's proceeding;
(b) dismiss the party's proceeding or strike out the party's defence; or
(c) make such other order as is just.
DISPUTE OF OWNERSHIP OF PROPERTY SEIZED BY SHERIFF
60.13 (1) A person who makes a claim in respect of property or the proceeds of property taken or intended to be taken by a sheriff in the execution of any enforcement process against another person shall give notice to the sheriff of the claim the address for service of the person making the claim.
(2) On receiving a claim, the sheriff shall forthwith give notice of claim (Form 60M) to every creditor of the debtor who has filed an enforcement process with the sheriff, by mail addressed to the creditor at the address shown on the enforcement process, and the creditor shall within seven days after receiving the notice give the sheriff notice in writing stating whether he or she admits or disputes the claim.
(3) Where the sheriff,
(a) receives a notice admitting the claim from every creditor; or
(b) receives a notice admitting the claim from the creditor at whose direction the sheriff took or intended to take the property and does not receive a notice disputing the claim from any other creditor,
he or she shall release the property in respect of which the claim is admitted.
Interpleader Proceedings
(4) Where the sheriff,
(a) does not receive a notice disputing the claim; or
(b) does not receive a notice disputing the claim from the creditor at whose direction the sheriff took or intended to take the property and receives a notice admitting the claim from every other creditor,
the sheriff shall give notice to every creditor who has filed an enforcement process with the sheriff, by mail addressed to the creditor at the address shown on the enforcement process that, unless the creditor seeks an interpleader order under Rule 43 within 60 days of the date of the notice, the sheriff will release the property.
(5) Where the sheriff receives a notice disputing the claim, the sheriff shall give notice to the person making the claim by mail addressed to the person's address for service that, unless the person seeks an interpleader order under Rule 43 within 60 days of the date of the notice, the sheriff shall proceed as if the claim had been abandoned.
SHERIFF'S REPORT ON EXECUTION OF WRIT
60.14 (1) A party or solicitor who has filed a writ with a sheriff may in writing require the sheriff to report the manner in which he or she has executed the writ and the sheriff shall do so forthwith by mailing to the party or solicitor a sheriff s report (Form 60N).
(2) Where the sheriff fails to comply with a request made under subrule (1) within a reasonable time, the party serving the request may move before a judge for an order directing the sheriff to comply with the request.
REMOVAL OR WITHDRAWAL OF WRIT FROM SHERIFF'S FILE
Executed and Expired Writs
60.15 (1) When a writ has been fully executed or has expired, the sheriff shall so indicate in his or her file, and the writ shall be transferred to a separate file of executed and expired writs and be retained there.
Withdrawal of Writ
(2) A party or solicitor who has flied a writ with a sheriff may withdraw it as against one or more of the debtors named in it by giving the sheriff written instructions to that effect.
(2.1) A party who has flied a writ with a sheriff may withdraw it as against one or more of the debtors named in it by filing a withdrawal of writ electronically under subrule 4.05.1(2).
(3) When a writ is withdrawn, the sheriff shall record the date and time of the withdrawal, and where the writ is withdrawn as against all the debtors named in it, shall remove it from his or her active file.
DUTY OF PERSON FILING WRIT WITH SHERIFF
60.16 (1) Where a writ of seizure and sale has been filed with a sheriff and any payment has been received by or on behalf of the creditor, the creditor shall forthwith give the sheriff notice of the payment.
(2) Where an order has been satisfied in full, the creditor shall withdraw all writs of execution relating to the order from the office of any sheriff with whom they have been filed.
(3) Where the creditor fails to withdraw a writ as required by subrule (2), the court on motion by the debtor may order that the writ be withdrawn.
MOTION FOR DIRECTIONS
60.17 Where a question arises in relation to the measures to be taken by a sheriff in carrying out an order, writ of execution or notice of garnishment, the sheriff or any interested person may make a motion for directions,
(a) to the judge or officer who made the original order, at any place;
(b) to a judge or officer who had jurisdiction to make the original order, in the sheriff's county, notwithstanding rule 37.03 (place of hearing of motions); or
(c) where an appeal has been taken from the original order, to a judge of the court to which the appeal has been taken, at any place.
EXAMINATION IN AID OF EXECUTION
Definitions
60.18 (1) In subrules (2) to (6),
"creditor" includes a person entitled to obtain or enforce a writ of possession, delivery or sequestration;
"debtor" includes a person against whom a writ of possession, delivery or sequestration may be or has been issued.
Examination of Debtor
(2) A creditor may examine the debtor in relation to,
(a) the reason for nonpayment or nonperformance of the order;
(b) the debtor's income and property;
(c) the debts owed to and by the debtor;
(d) the disposal the debtor has made of any property either before or after the making of the order;
(e) the debtor's present, past and future means to satisfy the order;
(f) whether the debtor intends to obey the order or has any reason for not doing so; and
(g) any other matter pertinent to the enforcement of the order.
(3) An officer or director of a corporate debtor, or, in the case of a debtor that is a partnership or sole proprietorship, a partner or sole proprietor against whom the order may be enforced, may be examined on behalf of the debtor in relation to the matters set out in subrule (2).
(4) Only one examination under subrule (2) or (3) may be held in a twelve month period in respect of a debtor in the same proceeding, unless the court orders otherwise.
(5) Where it appears from an examination under subrules (2) to (4) that a debtor has concealed or made away with property to defeat or defraud his or her creditors, a judge may make a contempt order against the debtor.
Examination of Person other than Debtor
(6) Where any difficulty arises concerning the enforcement of an order, the court may,
(a) make an order for the examination of any person who the court is satisfied may have knowledge of the matters set out in subrule (2); and
(b) make such order for the examination of any other person as is just.
Service on Debtor
(7) Despite clause 34.04(1)(a) a party who is to be examined in aid of execution shall be served with a notice of examination personally or by an alternative to personal service.
COSTS OF ENFORCEMENT
60.19 (1) A party who is entitled to enforce an order is entitled to the costs of the following steps on a partial indemnity scale, unless the court orders otherwise.
1. An examination in aid of execution.
2. The issuing, service, enforcement and renewal of a writ of execution and notice of garnishment.
3. Any other procedure authorized by these rules for enforcing the order.
(2) A party entitled to costs under subrule (1) may include in or collect under a writ of execution or notice of garnishment,
(a) the amounts prescribed in the regulations under the Administration of Justice Act and in determined in accordance with Part I of Tariff A for issuing, renewing and filing with the sheriff the writ of execution or notice of garnishment;
(b) disbursements paid to a sheriff, registrar, official examiner, court reporter or other public officer and to which the party is entitled under subrule (1), on filing with the sheriff or registrar a copy of a receipt for each disbursement;
(c) and amount determined in accordance with the costs grid established by Part I of Tariff A for conducting an examination in aid of execution, on filing with the sheriff or registrar an affidavit stating that the examination was conducted; and
(d) any other costs to which the party is entitled under subrule (1), on filing with the sheriff or registrar a certificate of assessment of the costs.