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S.M. 2001, c. 32

THE ENHANCED DEBT COLLECTION (VARIOUS ACTS AMENDED) ACT


(Assented to July 6, 2001)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

THE EXECUTIONS ACT

C.C.S.M. c. E160 amended

1           The Executions Act is amended by this Part.

2           Section 19 is replaced with the following:

Priority of writs of execution

19          Subject to section 19.2, in respect of writs of execution in the hands of a sheriff, priority of claim upon what is seized or realized under such writs shall not be allowed.

3           The following is added after section 19:

Definitions

19.1        In section 19.2,

"fine" means a monetary penalty imposed on a person found guilty or convicted of a contravention of

(a) an Act or regulation of Manitoba, or

(b) the Criminal Code (Canada),

and includes

(c) any costs assessed against the person,

(d) a victim surcharge imposed under the Criminal Code (Canada), and

(e) a surcharge imposed under The Victims' Bill of Rights,

but does not include a restitution order; (« amende »)

"forfeited recognizance order" means an order requiring a person who has failed to comply with a condition of a recognizance, and all sureties of that person, to pay money to the government; (« ordonnance de confiscation d'engagement »)

"restitution order" means an order made against a person found guilty or convicted of a contravention of

(a) an Act or regulation of Manitoba, or

(b) the Criminal Code (Canada),

requiring that person to pay money to an individual or to a corporation, organization or other entity. (« ordonnance de dédommagement »)

Priority for recognizance orders, restitution and fines

19.2        Subject to section  3, a writ of execution that has been issued to enforce a forfeited recognizance order, a restitution order or an order imposing a fine has priority of claim over what is seized or realized under any other writ of execution.

4           Subsection 20(4) is amended by striking out "by distributing any balance amongst the execution creditors" and substituting ", subject to section 19.2, by distributing any balance among the remaining execution creditors".

PART 2

THE GARNISHMENT ACT

C.C.S.M. c. G20 amended

5           The Garnishment Act is amended by this Part.

6(1)        The centred heading "SERVICE" before section 4 is replaced with "DEBTS BOUND".

6(2)        Subsection 4(1) is replaced with the following:

Debts bound

4(1)        Subject to this Act, service of a garnishment order on a garnishee binds

(a) any debt due or accruing due at the time of service from the garnishee to the defendant or judgment debtor, other than wages; and

(b) all wages that become due and payable from the garnishee to the judgment debtor within one year from the date the garnishment order takes effect.

6(3)        The section heading for subsection 4(2) is replaced with "Procedure re garnishment of wages".

6(4)        Clauses 4(2)(a) and (b) are amended by striking out "garnishing process" and substituting "garnishment order".

7           The following is added after section 4:

DURATION AND PRIORITY OF GARNISHMENT AGAINST WAGES

Duration of notice of garnishment against wages

4.1         For the purpose of garnishment of wages under clause 4(1)(b), a garnishment order remains in effect until the earliest of the following occurs:

(a) the garnishee pays the amount shown in the garnishment order into court;

(b) the garnishment order is discontinued under section 4.4 or revoked by the court;

(c) the judgment debtor ceases to be employed by the garnishee and notice is provided by the garnishee in accordance with section 4.3;

(d) one year passes from the date the garnishment order takes effect.

Garnishee to remit garnished money

4.2(1)      Notwithstanding any other Act or any regulation made under an Act, if wages are garnished under clause 4(1)(b) the garnishee shall, subject to subsections (2) and (3), remit any amount payable under the garnishment order to the court that issued the order, as long as the order remains in effect.

Payment of higher priority notices of garnishment

4.2(2)      If garnishment orders of different priority under this Act are served on a garnishee attaching wages, the garnishee shall first comply with the payment request in the higher priority order, as long as that order remains in effect. If any wages can be garnished after the payment request in the higher priority order has been satisfied, the garnishee shall remit into court any amount payable under a lower priority garnishment order.

Payment of equal priority notices of garnishment

4.2(3)      If garnishment orders of equal priority under this Act — other than garnishment orders to enforce maintenance orders as defined in section 13 — are served on a garnishee attaching wages, the garnishee shall first comply with the payment request in the garnishment order that was served first as long as that order remains in effect. When it is satisfied, the garnishee shall remit into court any amount payable under the later garnishment order.

Notice if debtor leaves employment

4.3         Where wages are garnished under clause 4(1)(b) and the judgment debtor ceases to be employed by the garnishee while the garnishment order is in effect, the garnishee shall give written notice to the court that issued the order and mail a copy of the notice to the garnishor.

Garnishor may discontinue notice of garnishment

4.4         A garnishor who serves a garnishment order may discontinue it by filing a notice of discontinuance in the court that issued the order. The garnishor shall

(a) forthwith after filing the notice of discontinuance, serve a copy of it on the garnishee, who is from the time of service no longer required to comply with the garnishment order; and

(b) deliver or mail a copy of the notice of discontinuance to the judgment debtor.

8           The following is added after subsection 8(8):

Procedure after variation

8(9)        Where the amount required to be paid under a garnishment order against wages under clause 4(1)(b) is varied under subsection (4), the garnishor shall obtain an amended garnishment order that complies with the varied order and serve it on the garnishee and the judgment debtor.

9           Subsection 9(1) is amended by striking out "section 13.7" and substituting "sections 13.7 and 14.7".

10(1)       Subsection 12(1) is amended

(a) in clause (c), by striking out "or" at the end of subclause (i), by adding "or" at the end of subclause (iv) and by adding the following after subclause (iv):

(v) a forfeited recognizance order, a restitution order, or an order imposing a fine, as those terms are defined in section 14.4,

(b) in the part of clause (c) after subclause (v), by striking out "sections 4, 5 and 9" and substituting "sections 4, 4.1, 4.2, 4.3, 4.4, 5 and 9";

(c) in clause (d), by striking out "the provisions of section 6" and substituting "the provisions of sections 4, 4.1, 4.2, 4.3, 4.4 and 6", and by striking out "and" at the end;

(d) in clause (e), by adding "and" at the end and by adding the following after clause (e):

(f) if the garnishment order was issued to enforce a forfeited recognizance order, a restitution order or an order imposing a fine, as those terms are defined in section 14.4, a statement indicating that this is the case and setting forth the provisions of sections 4, 4.1, 4.2, 4.3, 4.4 and 5.

10(2)       The following is added after subsection 12(3):

Presumption as to orders re fines, etc.

12(4)       Where no statement under clause (1)(f) is included in a memorandum attached to a garnishment order, it shall be presumed by the garnishee that the garnishment order was not issued to enforce a forfeited recognizance order, a restitution order or an order imposing a fine, as those terms are defined in section 14.4.

11           The following is added after section 14.3:

ENFORCEMENT OF FINES, FORFEITED RECOGNIZANCE ORDERS AND RESTITUTION ORDERS

Definitions

14.4        In sections 14.5 to 14.7,

"collection officer" means a person employed under The Civil Service Act and designated by the Minister of Justice to enforce payment of forfeited recognizance orders and fines; (« agent de recouvrement »)

"fine" means a monetary penalty imposed on a person found guilty or convicted of a contravention of

(a) an Act or regulation of Manitoba, or

(b) the Criminal Code (Canada),

and includes

(c) any costs assessed against the person,

(d) a victim surcharge imposed under the Criminal Code (Canada), and

(e) a surcharge imposed under The Victims' Bill of Rights,

but does not include a restitution order; (« amende »)

"forfeited recognizance order" means an order requiring a person who has failed to comply with a condition of a recognizance, and all sureties of that person, to pay money to the government; (« ordonnance de confiscation d'engagement »)

"judgment debtor" means a person who has failed to comply with the provisions of a forfeited recognizance order, a restitution order or an order imposing a fine; (« débiteur judiciaire »)

"restitution order" means an order made against a person found guilty or convicted of a contravention of

(a) an Act or regulation of Manitoba, or

(b) the Criminal Code (Canada)

requiring that person to pay money to an individual or to a corporation, organization or other entity. (« ordonnance de dédommagement »)

Priority for enforcement of fines, etc.

14.5        Subject to subsection 13.5(1) (priority of garnishment orders to enforce maintenance orders), a garnishment order issued to enforce a forfeited recognizance order, a restitution order or an order imposing a fine has priority over any other garnishment order served on the garnishee and any debt owed by the judgment debtor to the garnishee.

Garnishment of jointly held money

14.6(1)     A collection officer may enforce a forfeited recognizance order or an order imposing a fine by garnishing money that is held jointly by the judgment debtor and one or more other persons, and where such a garnishment order is served on a garnishee,

(a) all the money is presumed for the purpose of the garnishment order to be owned by the judgment debtor; and

(b) the garnishment order binds all the money owing or payable by the garnishee to the judgment debtor on the day of service.

Garnishee to deliver or mail copy of order

14.6(2)     When a garnishment order referred to in subsection (1) is served, the garnishee must be provided with at least two copies of the garnishment order, and the garnishee shall without delay deliver or mail a copy of the garnishment order to each person who holds the garnished money jointly.

Application by joint holders to determine interests

14.6(3)     Notwithstanding clause (1)(a), the judgment debtor or any person who holds money jointly with the judgment debtor may apply to the court that issued the garnishment order for an order that

(a) the interest of the judgment debtor in the garnished money is less than the amount garnished; and

(b) the part of the garnished money in excess of the judgment debtor's interest be distributed to the other joint holder or holders in accordance with their interests.

Burden of proof

14.6(4)     In a proceeding under subsection (3), the burden of establishing that the interest of the judgment debtor is less than the amount garnished is on the person who makes the application.

Notice of application to court

14.6(5)     Notice of an application made under subsection (3) must be served on the collection officer and each person who holds the garnished money jointly within 21 days after the garnishment order is served on the garnishee.

No release of garnishing order on terms

14.7        Section  9 does not apply to a garnishment order obtained to enforce a forfeited recognizance order, a restitution order or an order imposing a fine.

PART 3

THE SUMMARY CONVICTIONS ACT

C.C.S.M. c. S230 amended

12           The Summary Convictions Act is amended by this Part.

13           Section 1 is amended by adding the following definitions in alphabetical order:

"forfeited recognizance order" means an order requiring a person who has failed to comply with a condition of a recognizance, and all sureties of that person, to pay money to the government; (« ordonnance de confiscation d'engagement »)

"restitution order" means an order made against a person found guilty or convicted of a contravention of an Act or regulation of Manitoba requiring that person to pay money to an individual or to a corporation, organization or other entity; (« ordonnance de dédommagement »)

"victim" means an individual, corporation, organization or other entity to whom an amount was to be paid under a restitution order, and

(a) where the victim is an individual who is deceased, means his or her estate, and

(b) where the victim is an individual who is a minor or is incapable of handling his or her affairs, means the person — other than the person against whom the restitution order was made — who is the victim's parent, guardian, committee or substitute decision maker. (« victime »)

14           Section 12.1 is replaced with the following:

Certificate of default

12.1(1)     If a person has failed to comply with the payment provisions of a forfeited recognizance order or an order imposing a fine, the clerk of the court, or an authority that was entitled to payment under the order, may complete a certificate as to the making of the order and the amount remaining unpaid and file the certificate in the Court of Queen's Bench. Once filed, the certificate is deemed to be a judgment of that court for the purpose of enforcement.

Restitution default

12.1(2)     If a person has failed to comply with the payment provisions of a restitution order, a victim to whom the order required payment to be made may, by filing the order in the Court of Queen's Bench, enter the order as a judgment of that court. The order is enforceable in the same manner as if it were a judgment of the court in civil proceedings.

PART 4

CONDITIONAL AMENDMENTS AND COMING INTO FORCE

Conditional amendment

15          If, during the Second Session of the 37th Legislature, Bill 35 entitled The Improved Enforcement of Support Payments (Various Acts Amended) Act ("Bill 35") is assented to, then

(a) section 2 of this Act is repealed; and

(b) section 19 of The Executions Act is replaced with the following:

Priority of writs of execution

19          Subject to sections 19.1 and 19.3, in respect of writs of execution in the hands of a sheriff, priority of claim upon what is seized or realized under such writs shall not be allowed.

Conditional amendment

16          If, during the Second Session of the 37th Legislature Bill 35 is assented to, then

(a) section 3 of this Act is repealed; and

(b) the following is added after section 19.1 of The Executions Act as enacted by Bill 35:

Definitions

19.2        In section 19.3,

"fine" means a monetary penalty imposed on a person found guilty or convicted of a contravention of

(a) an Act or regulation of Manitoba, or

(b) the Criminal Code (Canada),

and includes

(c) any costs assessed against the person,

(d) a victim surcharge imposed under the Criminal Code (Canada), and

(e) a surcharge imposed under The Victims' Bill of Rights,

but does not include a restitution order; (« amende »)

"forfeited recognizance order" means an order requiring a person who has failed to comply with a condition of a recognizance, and all sureties of that person, to pay money to the government; (« ordonnance de confiscation d'engagement »)

"restitution order" means an order made against a person found guilty or convicted of a contravention of

(a) an Act or regulation of Manitoba, or

(b) the Criminal Code (Canada),

requiring that person to pay money to an individual or to a corporation, organization or other entity. (« ordonnance de dédommagement »)

Priority for recognizance orders, restitution and fines

19.3        Subject to sections 3 and 19.1, a writ of execution that has been issued to enforce a forfeited recognizance order, a restitution order or an order imposing a fine has priority of claim over what is seized or realized under any other writ of execution.

Conditional amendment

17          If, during the Second Session of the 37th Legislature, Bill 35 is assented to, then

(a) section 4 of this Act is repealed; and

(b) subsection 20(4) of The Executions Act is replaced with the following:

Distribution of money 14 days after notice

20(4)       The sheriff shall hold the money for a period of 14 days from the publication of the notice, and thereupon shall distribute it and any other money later seized or realized under the same or any other writ of execution against the same judgment debtor (as to which no notice need be published)

(a) by paying the costs of all the execution creditors as preferential claims pro rata; and

(b) subject to sections 19.1 and 19.3, by distributing any balance among the remaining execution creditors in proportion to the several respective claims of those creditors, not including costs.

Coming into force

18          This Act comes into force on a day fixed by proclamation.

 

 
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