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Script 169 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
Getting a Small Claims Court judgment – whether at the end of a trial or settlement conference, or by default – is one thing. But getting it paid is something else. What you can do if the person you sued refuses to pay your judgment? I’ll call that person the debtor, and I’ll call you the creditor.
Once you get a judgment, the first thing to do is put it in writing.
If the debtor has defended your claim, then after the judge has made a Payment Order at the end of your trial or settlement conference, you must go to the Small Claims Court registry and fill in a Payment Order form (Form 10). It will be signed by the appropriate person and “filed” or entered in the court records. If the debtor hasn’t responded to your claim, then you must complete an Application for Default Order (Form 5) instead.
Next, consider writing and asking the debtor to pay you.
You might want to send a copy of the Payment Order or Default Order to the debtor with a letter asking the debtor to pay you. Set a reasonable deadline (for example, within 14 days from the date of your letter), and be sure to include the address where the payment can be made.
What if there’s a Payment Schedule?
Now, a Payment Order might include a Payment Schedule, which tells how often and how much the debtor must pay you to pay off the order. As long as the debtor makes the payments according to the schedule, you can’t take any steps to collect the full amount right away. But if there’s no payment schedule included in the Order, or if the debtor doesn’t pay according to the schedule, the debtor will owe you the whole amount immediately and you can take steps to collect it.
What if you have a Default Order?
If the Default Order is for a debt, you can go ahead and take steps to collect it immediately. If your claim is not for a debt, a hearing before a judge will first be set to determine how much your judgment should be.
At this point, you now have five options if the debtor doesn’t pay.
If the debtor hasn’t paid your Payment Order or Default Order, your options are:
- a payment hearing,
- seizure and sale of goods by the court bailiff,
- garnishing wages or bank accounts,
- a default hearing (if the debtor doesn’t obey a Payment Schedule), and
- registration against land.
Your first option is a payment hearing.
Go to the Small Claims Court registry or write and tell them you want a payment hearing. The purpose of the hearing is to find out information about the debtor’s financial situation. For the hearing, the debtor can be required to bring income tax returns, recent pay stubs and other documents which show the debtor’s assets, income and debts. At the hearing, the judge considers the debtor’s ability to pay the Payment Order (and whether a Payment Schedule should be included), so you should come prepared to question the debtor about his or her employment, bank accounts and so on.
Another option is to apply for an Order for Seizure and Sale.
This allows a court bailiff to take and sell the debtor’s goods or property. You may decide to go this route if the debtor doesn’t appear to have any cash income, but has valuable assets, like a good car or boat or worthwhile company shares.
Before proceeding, however, be aware that the Court Order Enforcement Act of BC allows a debtor to keep $4,000 of personal assets plus a vehicle worth up to $5,000. Also, the bailiff gets paid first from the sale of the goods. So you’ll want to make sure that the debtor has goods worth taking and selling at a court-ordered auction.
If you decide to go ahead, ask the Small Claims Court registry for the forms to complete for an Order for Seizure and Sale. You’ll have to pay a deposit to cover the bailiff’s estimated time and costs.
Your third option is called garnishing.
Let’s assume you have a Payment Order for $1,000, and you know where the debtor works or has a bank account. You can go to the Small Claims Court registry and apply for a Garnishing Order. You then present the Garnishing Order to the debtor’s employer or the branch of the bank where the debtor has an account, whichever you are going after, and the wages owed or bank money belonging to the debtor will be paid to the court. Once the court receives the money, you can apply to have it paid out to you. This process is called garnishing the debtor’s wages or bank accounts. There are some fairly technical rules and the steps have to be followed properly, so discuss the procedure with the registry staff right at the beginning.
Another option is to ask the registry for a default hearing.
If a Payment Schedule was made after the trial or settlement conference or following a payment hearing, and the debtor hasn’t paid you as required, you can ask for a default hearing. The debtor must explain to a judge why he or she hasn’t obeyed the Payment Schedule. After listening to the debtor, the judge can either confirm the original Payment Schedule or change the terms. If the judge decides that the debtor’s explanation for not paying shows contempt of court, the judge can send the debtor to jail for up to 20 days, and the debtor must still pay the money.
A fifth option is to register your Payment Order against any land owned by the debtor.
This will make it very difficult for the debtor to sell or mortgage the land unless he or she pays your judgment first. What this means is that you might not get paid immediately, but the Payment Order can stay registered against the land for some time, then when the debtor sells or mortgages the land, your judgment will have to be paid. To register your Payment Order, you must get a Certificate of Judgment from the Small Claims Court registry. Then you take it to the Land Titles Office where the debtor owns the land, and register your judgment against the title to the debtor’s land. The registration is good for two years, but can be renewed as long as necessary.
You can also ask the Supreme Court to force a sale of the property, but this is an expensive and complicated procedure and not often used to enforce a Small Claims Court judgment.
Let’s summarize what we’ve covered.
Once you have a filed Payment Order or Default Order, you have five options for getting your judgment paid. A payment hearing is useful to find out more about the debtor’s financial situation and to get the information you’ll need for pursuing other options. Getting an Order for Seizure and Sale is useful if the debtor owns valuable goods such as an expensive car. Garnishing the debtor’s wages or bank accounts can be useful if the debtor works or has money in an account. A default hearing can be used if there’s already a Payment Schedule and the debtor isn’t paying as scheduled. And if the debtor owns land, registering your order against the land is likely to get you money eventually.
Where can you get more information?
You’ll find most of the instructions you need on the forms available at the Small Claims Court registry. If you have any questions, talk to the Small Claims Court staff or read over one of the Small Claims Court booklets available at the registry, at your local public library and on the Attorney General’s website at www.ag.gov.bc.ca/courts/civil/smallclaims. Also refer to the other Dial-A-Law scripts in this Small Claims Court series.
[updated February 2007]
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