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This version is current as of October 30, 2014.
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C.C.S.M. c. G20

The Garnishment Act

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

DEFINITIONS AND APPLICATION

Wages defined

1           In this Act the expression "wages" includes salary, commission and fees, and any other money payable by an employer to an employee in respect of work or services performed in the course of employment of the employee; but it does not include deductions therefrom made by the employer under any Act of the Legislature of any province or the Parliament of Canada.

Binds the Crown

2           This Act binds the Crown in right of Manitoba.

S.M. 1992, c. 6, s. 2.

Service of process

3           Every garnishment process under section 2 shall be served upon the Minister of Finance in his office.

DEBTS BOUND

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.

Procedure re garnishment of wages

4(2)        For the purpose of garnishment of wages under clause (1)(b),

(a) service of a garnishment order after 5 p.m., or at any time on a holiday, is deemed to have occurred on the next day that is not a holiday; and

(b) a garnishment order takes effect on the first Monday following the day it is served.

S.M. 1992, c. 6, s. 3; S.M. 2001, c. 32, s. 6.

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.

S.M. 2001, c. 32, s. 7.

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.

S.M. 2001, c. 32, s. 7.

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.

S.M. 2001, c. 32, s. 7.

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.

S.M. 2001, c. 32, s. 7.

EXEMPTIONS

Exemptions

5           Except as in this Act otherwise provided, 70% of any wages bound under section 4 is exempt from seizure or attachment under a garnishing order issued out of any court; but in no case shall the amount of the exemption allowed under this section be less than

(a) in the case of a person without dependants $250., or such greater amount as may be prescribed by regulation, per month or pro rata for a shorter period; and

(b) in the case of a person with one or more dependants $350., or such greater amount as may be prescribed by regulation, per month or pro rata for a shorter period.

S.M. 1992, c. 6, s. 4.

Where no exemption

6           Where a debt is contracted for board or room or both and, in the opinion of a judge of the court in which the action is brought, the exemption under this Act is not necessary for the support and maintenance of the debtor, or of his family or dependants depending upon him for support, the debtor has no right of exemption of any part of his wages, and the judge may order that no exemption be allowed.

Exemption re garnishment for maintenance

7           Notwithstanding section 5, but subject to section 8, where the wages of a person are seized or attached under a maintenance order as defined in section 13 or under a support order as defined in subsection 12.1(1) the exemption allowed to that person is $250., or such greater amount as may be prescribed by regulation, per month or pro rata for any part of a month.

S.M. 1995, c. 3, s. 16; S.M. 2004, c. 14, s. 9.

VARIATION OF EXEMPTIONS

Definition of "clerk"

8(1)        In this section, and in sections 9 and 10, "clerk" means

(a) where the Court of Queen's Bench has jurisdiction in the matter

(i) if the garnishing proceedings in the matter were begun in The City of Winnipeg, the Registrar of that court,

(ii) if the garnishment proceedings in the matter were begun in any other judicial centre, the deputy registrar of the court for the judicial centre in which the proceedings were begun, and

(iii) if it is an extra-provincial garnishing order under section 12.1, the deputy registrar of the court for the judicial centre where the designated officer filed the order; and

(b) where the Provincial Court (Family Division) has jurisdiction in the matter, the clerk of the Provincial Court (Family Division).

Variation of exemption

8(2)        A creditor who has initiated proceedings by way of seizure or attachment of the wages of a person under this Act or a debtor affected by such proceedings may make an application in writing supported by affidavit to the clerk of the court having jurisdiction in the matter for an increase or decrease, as the case may be, of the amount of exemption allowed under section 5 or 7.

Notice of hearing

8(3)        The clerk of the court shall, within three days after the receipt of an application in writing under subsection (2), notify the persons affected by the application of the date on which he will consider the matter, which date shall not be later than seven days after the receipt of the application.

Hearing and order

8(4)        On the date fixed by the clerk, he shall hear the matter, and after considering all the evidence adduced before him and having regard to the circumstances relating to the matter, may make an order

(a) confirming; or

(b) increasing; or

(c) reducing;

the exemption allowed under this Act.

Limitation on variation of exemption

8(5)        No order shall be made by a clerk under subsection (4) or by a judge under subsection (8) which

(a) has the effect of increasing the exemption allowed under section 5 or 7 to more than 90% of the wages bound under section 4; or

(b) reduces the wages of the employee to an amount less than the exemption to which he is entitled under section 5 or 7.

Appeal

8(6)        Any person affected by an order made under subsection (4) may, not later than 14 days from the date of the order, by a notice of motion, appeal the order to a judge in chambers in the court having jurisdiction in the matter.

Service

8(7)        The notice of motion mentioned in subsection (6) shall be served by the appellant

(a) on the clerk of the court whose order is being appealed; and

(b) on every other person affected by the appeal;

at least three days before the date fixed for the hearing of the appeal.

Disposition of appeal

8(8)        The judge hearing the appeal may confirm, or, subject to subsection (5), vary the order appealed against.

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.

S.M. 1992, c. 6, s. 5; S.M. 2001, c. 32, s. 8; S.M. 2004, c. 14, s. 10.

RELEASE OF GARNISHMENT

Release of garnishment on terms

9(1)        Subject to sections 13.7 and 14.7, a debtor against whom a garnishing order has been made may apply to the clerk of the court in which the action is brought for the release of the garnishment and for the payment of the judgment by instalments and, if the clerk deems it proper in all the circumstances of the case, he or she may make the order, fixing therein the amounts and times of payment, and, so long as the debtor is not in default under the order, no further garnishment of the debtor's wages shall be had in respect of the judgment debt.

Ex parte order

9(2)        An order made under subsection (1) may be made ex parte, but the clerk may vary it at any time upon the application of the debtor or creditor with at least three days notice in writing to the other party.

Copy to judgment creditor

9(3)        Forthwith after an order is made under subsection (1), a copy thereof shall be sent by prepaid mail by the clerk of the court to the judgment creditor or his agent.

Variation of order

9(4)        Upon an application to a judge for the purpose, an order made under subsection (1) may be varied by the judge.

Procedure

9(5)        Subsections 8(6), (7) and (8) apply with such modifications as the circumstances require to an application under subsection (4).

S.M. 1995, c. 3, s.18; S.M. 2001, c. 32, s. 9.

Termination of order

10          Where, under section 9, an order is made by a clerk of the court or the order is varied by a judge, providing for the release of a garnishing order and the payment of the judgment by instalments, the order of the clerk or that of the judge, as the case may be, shall be terminated

(a) where the judgment debtor is in default in paying any of the instalments for more than five days; or

(b) by the issue of a judgment or garnishing order or both against the judgment debtor in a cause other than that with respect to which the instalment payments were ordered.

S.M. 1995, c. 3, s. 19.

GARNISHMENT OF WAGES

Garnishment of wages before judgment prohibited

11          The wages of a person shall not be seized or attached by a garnishing order until judgment has been entered against him; and no garnishing order to seize or attach the wages of a person shall be issued from a court until judgment has been entered against him.

Memo on garnishing order against wages

12(1)       Where the debt against which the garnishing order is issued is for wages, there shall be annexed to the garnishing order a memorandum

(a) showing the residence of the judgment debtor;

(b) indicating the nature and place of the occupation of the judgment debtor in the service of the garnishee at the time of the issue of the garnishing order;

(c) setting forth the provisions of section 8 and except where the garnishing process was issued by virtue of or under

(i) a maintenance order as defined in section 13,

(ii) and (iii)  repealed, S.M. 1995, c. 3, s. 21,

(iv) a judgment for board or room or both in respect of which a judge of the court in which the action is brought has made an order under section 6 ordering that no exemption be allowed,

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

(vi) a support order as defined in subsection 12.1(1),

setting forth the provisions of sections 4, 4.1, 4.2, 4.3, 4.4, 5 and 9;

(d) if the judgment is for board or room or both and a judge of the court in which the action is brought has made an order under section 6 ordering that no exemption be allowed, a statement indicating that that is the case and setting forth the provisions of sections 4, 4.1, 4.2, 4.3, 4.4 and 6;

(d.1) if it is an extra-provincial garnishing order under subsection 12.1(1), a statement indicating that that is the case and setting forth the provisions of sections 4, 4.1, 4.3, 4.4, 7, 8, 9, 10 and 12.1;

(e) if the garnishing process was issued by virtue of or under a maintenance order as defined in section 13, a statement indicating that that is the case and setting forth the provisions of section 7; and

(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.

Presumption as to board and room

12(2)       Where no statement under clause 1(d) is included in a memorandum attached to a garnishing order, it shall be presumed by the garnishee that the exemption of the debtor has not been disallowed under section 6.

Presumption as to orders re alimony, etc.

12(3)       Where no statement under clause (1)(e) is included in a memorandum attached to a garnishing order, it shall be presumed by the garnishee that the garnishing process was not issued by virtue of or under a maintenance order as defined in section 13.

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.

S.M. 1995, c. 3, s. 21; S.M. 2001, c. 32, s. 10; S.M. 2004, c. 14, s. 11.

EXTRA-PROVINCIAL GARNISHING ORDERS

Definitions

12.1(1)     In this section,

"designated officer" means a designated officer as defined in Part VI of The Family Maintenance Act; (« fonctionnaire désigné »)

"extra-provincial garnishing order" means a document from a reciprocating jurisdiction that corresponds to

(a) a garnishing order under this Act, or

(b) a support deduction notice under Part VI of The Family Maintenance Act; (« ordonnance de saisie-arrêt extraprovinciale »)

"judgment debtor" means a person against whom a support order is made; (« débiteur judiciaire »)

"reciprocating jurisdiction" means a reciprocating jurisdiction as defined in The Inter-jurisdictional Support Orders Act; (« État pratiquant la réciprocité »)

"support" includes support, maintenance or alimony payable for a person, or for the child of a person, or for both; (« aliments »)

"support order" means a court order or an order made by an administrative body requiring the payment of support and includes the provisions of a written agreement requiring the payment of support if those provisions are enforceable in the jurisdiction in which the agreement was made as if they were contained in an order of a court of that jurisdiction, but does not include a maintenance order enforced by a designated officer under Part VI of The Family Maintenance Act. (« ordonnance alimentaire »)

Extra-provincial garnishing order filed

12.1(2)     The designated officer may file an extra-provincial garnishing order in the Court of Queen's Bench if

(a) it is issued by a competent authority in a reciprocating jurisdiction and directed to a garnishee in Manitoba;

(b) it is sent to the designated officer by a person in the reciprocating jurisdiction who, in the opinion of the designated officer, performs the same or similar functions as those performed by the designated officer;

(c) it states that it is issued in respect of a support order that is enforceable in the issuing jurisdiction, or is accompanied by a statement to that effect;

(d) it states the amount of arrears and the amount of ongoing support payments under the support order, if any, or is accompanied by a statement to that effect;

(e) it is accompanied by the support order for which it is issued; and

(f) it and any documents required under clauses (c), (d) or (e) are written in English or French or accompanied by a sworn or certified translation into English or French.

Converting amount into Canadian currency

12.1(3)     If an extra-provincial garnishing order refers to an amount not expressed in Canadian currency, the designated officer shall

(a) convert the amount to Canadian currency by applying a rate of exchange for the equivalent amount in Canadian currency that is set by a bank and applicable on the day the extra-provincial garnishing order is filed; and

(b) before filing the order, attach a statement to it setting out the equivalent amount in Canadian currency and the source of the quotation.

Amount due in Canadian currency

12.1(4)     The amount so determined under clause (3)(a) is deemed to be the amount payable under the order.

Service of extra-provincial garnishing order

12.1(5)     After filing an extra-provincial garnishing order, the designated officer shall serve two copies of it, each with the statement referred to in clause (3)(b), if applicable, on the garnishee by personal service or by an alternative to personal service in accordance with the Queen's Bench Rules.

Copy to judgment debtor

12.1(6)     The garnishee shall without delay deliver or mail a copy of the extra-provincial garnishing order to the judgment debtor at the last address known to the garnishee.

Amount remitted by garnishee to reciprocating jurisdiction

12.1(7)     Despite subsection 4.2(1) of this Act and any other Act or any regulation made under an Act, a garnishee who has been served with an extra-provincial garnishing order pursuant to this section shall, subject to subsections 4.2(2) and (3), remit any amount payable under it in accordance with the order.

Recognition of extra-provincial garnishing order

12.1(8)     An extra-provincial garnishing order under this section has the same force and effect as a garnishing order issued under section 4.

Application

12.1(9)     This section applies whether or not the support order could be or has been registered in Manitoba under The Inter-jurisdictional Support Orders Act.

Terminology

12.1(10)    If, in a proceeding under this section, a document from a reciprocating jurisdiction contains terminology different from the terminology in this Act or contains terminology or is in a different form than that customarily in use in the Court of Queen's Bench, the court must give a broad and liberal interpretation to the terminology or form so as to give effect to the document.

S.M. 2004, c. 14, s. 12; S.M. 2010, c. 28, s. 30.

ENFORCEMENT OF MAINTENANCE ORDERS

Garnishment of Money and Wages

Definitions

13          In sections 13.1 to 14.3,

"designated officer" means designated officer as defined in Part VI of The Family Maintenance Act; (« fonctionnaire désigné »)

"judgment debtor" means a person against whom a maintenance order is made; (« débiteur judiciaire »)

"maintenance order" means

(a) an order or interim order for maintenance or alimony, including an order made under

(i) The Child and Family Services Act,

(ii) The Child Welfare Act (now repealed),

(iii) The Family Maintenance Act,

(iv) The Wives' and Children's Maintenance Act (now repealed), or

(v) the Divorce Act (Canada),

(b) the maintenance provisions of a separation agreement filed under Part VI of The Family Maintenance Act,

(c) a maintenance order, provisional maintenance order or interim maintenance order made in a jurisdiction outside Manitoba and registered or confirmed in Manitoba under The Reciprocal Enforcement of Maintenance Orders Act (now repealed) or The Enforcement of Judgments Conventions Act, or a support order or support variation order made in Manitoba or in a reciprocating jurisdiction outside Manitoba and registered in Manitoba under The Inter-jurisdictional Support Orders Act, or

(d) the maintenance or support provisions of a written agreement made in a reciprocating jurisdiction outside Manitoba and registered in Manitoba under The Reciprocal Enforcement of Maintenance Orders Act (now repealed) or The Inter-jurisdictional Support Orders Act. (« ordonnance alimentaire »)

S.M. 1992, c. 6, s. 6; S.M. 1995, c. 3, s. 22; S.M. 2001, c. 33, s. 47; S.M. 2004, c. 14, s. 13.

Continuing effect of garnishment for maintenance

13.1        A garnishing order that is obtained by a person entitled to maintenance under a maintenance order or by the designated officer on behalf of the person and that is served on the garnishee binds, for as long as the garnishing order remains in force,

(a) in respect of money other than wages, all money owing or payable to the judgment debtor by the garnishee at the time of service, and all such money that becomes owing or payable from time to time after the day of service to the judgment debtor by the garnishee; and

(b) wages that are due and payable by the garnishee to the judgment debtor on and after the first day other than a holiday after the day of service.

S.M. 1995, c. 3, s. 22.

Garnishment of jointly held money

13.2(1)     Subject to subsection (2), a maintenance order may be enforced by garnishment of money that is held jointly by the judgment debtor and one or more other persons, and where such a garnishing order is served on a garnishee,

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

(b) the garnishing order binds all the money owing or payable by the garnishee on the day of service, and all such money that becomes owing or payable from time to time after the day of service to the judgment debtor by the garnishee for as long as the garnishing order remains in force.

Only designated officer may obtain order

13.2(2)     A garnishing order pursuant to subsection (1) may be obtained only by the designated officer acting on behalf of a person entitled to maintenance under a maintenance order.

Application to court to determine interests

13.2(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 garnishing 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

13.2(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

13.2(5)     Notice of an application made under subsection (3) must be served on the designated officer and each person who holds the garnished money jointly within 21 days after the garnishing order is served on the garnishee.

S.M. 1995, c. 3, s. 22.

Garnishee to remit garnished money

13.3(1)     Notwithstanding any other Act or regulation made under an Act, a garnishee who has been served with a garnishing order pursuant to section 13.1 or subsection 13.2(1) shall, for as long as the garnishing order remains in force, remit any amount payable under it to the person to whom the order requires the money to be paid or, where the order has no such requirement, to the court that issued the order.

Garnishee to serve extra copy of order

13.3(2)     At the time of service of a garnishing order upon a garnishee, the garnishor shall also serve the garnishee with

(a) in the case of an order under section 13.1, an extra copy of the order which the garnishee shall deliver or mail to the judgment debtor without delay; and

(b) in the case of an order under subsection 13.2(1), at least two copies of the order, and the garnishee shall without delay deliver or mail a copy to each person who holds the garnished money jointly.

Garnishee's entitlement to costs

13.3(3)     A garnishee on whom a garnishing order is served under section 13.1, subsection 13.2(1) or section 13.4 is not entitled to costs for complying with the garnishing order except

(a) any costs to which he or she is entitled when a garnishing order is originally served on him or her; and

(b) a fee of $1. for each payment remitted in compliance with subsection (1).

S.M. 1995, c. 3, s. 22; S.M. 2004, c. 14, s. 14.

Procedure after variation under section 8

13.4        Where the amount required to be paid under a garnishing order against wages under clause 13.1(b) is varied under section 8, the garnishor shall obtain a garnishing order that complies with the varied order and serve the order and an extra copy of it on the garnishee, who shall then comply with section 13.3.

S.M. 1995, c. 3, s. 22.

Priority and duration of garnishing order

13.5(1)     A garnishing order obtained pursuant to section 13.1, subsection 13.2(1) or section 13.4 has priority over any other garnishing order served on the garnishee or any debt owed by the judgment debtor to the garnishee and remains in force until

(a) the order is superseded by another garnishing order based on the same maintenance order;

(b) the order is discontinued under section 13.6 or revoked by the court;

(c) the debt for which the order is issued is satisfied, if the order was obtained by

(i) a person entitled to maintenance, whether as periodic payments or otherwise, or

(ii) the designated officer, on behalf of a person entitled to maintenance other than periodic payments of maintenance;

(c.1) there is no further obligation on the judgment debtor to make periodic payments of maintenance, if the order was obtained by the designated officer on behalf of a person entitled to periodic payments of maintenance;

(d) the termination date that is specified in the order; or

(e) in the case of an order against wages, the judgment debtor ceases to be employed by the garnishee.

Garnishee to notify court if debtor leaves employment

13.5(2)     Where a garnishee is served a garnishing order against wages obtained under clause 13.1(b) or section 13.4 and the judgment debtor ceases to be employed by the garnishee while the garnishing order is in force, the garnishee shall give written notice to the court that issued the garnishing order and mail a copy of the notice to the garnishor.

S.M. 1995, c. 3, s. 22; S.M. 2004, c. 14, s. 15.

Garnishor may discontinue garnishing order

13.6        A garnishor who serves a garnishing order under section 13.1, subsection 13.2(1) or section 13.4 may discontinue the order by filing a notice of discontinuance in the court that issued the garnishing order, in which case the garnishor shall

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

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

S.M. 1995, c. 3, s. 22.

No release of garnishing order on terms

13.7        Section 9 does not apply to a garnishing order obtained to enforce a maintenance order.

S.M. 1995, c. 3, s. 22.

Garnishment of Pension Benefits

Garnishment of pension benefits

14(1)       Notwithstanding that the garnishment of a pension benefit is prohibited by or under an Act of the Legislature or a collective or other agreement, the pension benefit is subject to garnishment if the garnishing order whereby the garnishment is sought to be effected is obtained as provided in clause 13.1(b) or section 13.4.

Exemptions apply to pension benefits

14(2)       Where a pension benefit is subject to garnishment, either by virtue of subsection (1) or otherwise, this Act applies thereto, with such modifications as the circumstances require but subject to subsection (3), to all intents and purposes as if the pension benefit were wages.

Calculation of exemptions

14(3)       Where a judgment debtor receives both wages and pension benefits, whether or not both are payable by the same garnishee or on the same dates, both shall be lumped together for purposes of calculating any exemption to which the judgment debtor may be entitled under this Act.

"Pension benefit" defined

14(4)       In this section, "pension benefit" includes any benefit, whether in the form of a periodic payment or in the form of a lump sum payment, that is payable under or for which payment may be requested under a pension scheme or plan, prescribed plan as defined in The Pension Benefits Act, superannuation scheme or plan, life or fixed term annuity policy, or accident, sickness or disability insurance policy

(a) established or administered by or for the government or by or for a person, group, society, organization, association, corporation or body other than the government, or in which the government or the person, group, society, organization, association, corporation or body is a participant;

(b) repealed, S.M. 1995, c. 3, s. 23;

but does not include any deductions made therefrom under an Act of the Legislature of a province of Canada or the Parliament of Canada.

S.M. 1991-92, c. 36, s. 63; S.M. 1992, c. 6, s. 7; S.M. 1995, c. 3, s. 23; S.M. 2005, c. 2, s. 35.

Garnishment of Pension Benefit Credits

Definitions

14.1(1)     In this section and sections 14.2 and 14.3,

"garnishee" means an administrator or trustee of a pension plan and includes

(a) an employer who establishes or administers a pension plan for employees, and

(b) a financial or other institution that issues, underwrites or is a depository of a prescribed plan as defined in The Pension Benefits Act; (« tiers saisi »)

"net pension benefit credit" means a pension benefit credit adjusted in the manner prescribed by a regulation made under clause 37(s.1) of The Pension Benefits Act; (« crédit net de prestations de pension »)

"pension benefit credit" means a pension benefit credit as defined in The Pension Benefits Act; (« crédit de prestations de pension »)

"pension plan" means a pension plan as defined in The Pension Benefits Act and includes a prescribed plan as defined in that Act. (« régime de retraite »)

Garnishment of pension benefit credit

14.1(2)     A maintenance order may be enforced by garnishment of the pension benefit credit of a judgment debtor in a pension plan.

Credit bound as of date order is served

14.1(3)     Service on a garnishee of a garnishing order obtained to enforce a maintenance order binds, to the extent of the amount specified in the garnishing order, the net pension benefit credit of a judgment debtor in the pension plan on the day the garnishing order is served.

Entitlement

14.1(4)     For the purpose of this section, the judgment debtor is entitled to receive, in accordance with section 31.1 of The Pension Benefits Act, the pension benefit credit in his or her pension plan on the day the garnishing order is served.

Valuation

14.1(5)     The net pension benefit credit of a judgment debtor in a pension plan is to be determined in the manner provided for in a regulation made under clause 37(s.1) of The Pension Benefits Act.

Only designated officer may obtain order

14.1(6)     A garnishing order for a pension benefit credit may be obtained only by a designated officer acting on behalf of a person entitled to maintenance under a maintenance order.

Order delivered to the judgment debtor

14.1(7)     When a garnishing order for a pension benefit credit is served on the garnishee, the designated officer shall deliver a copy of the order to the judgment debtor or mail it to the last address of the judgment debtor shown in the designated officer's records.

Payment within 90 days

14.1(8)     Except as provided in section 14.2, the garnishee shall, within 90 days after a garnishing order is served, remit the amount shown in the order to the person to whom the order requires it to be paid or, if the order has no such requirement, to the court that issued it.

Garnishment available despite other Acts

14.1(9)     This section applies notwithstanding that the garnishment of pension benefit credits is prohibited by or under an Act of the Legislature or a collective or other agreement.

S.M. 1995, c. 3, s. 24; S.M. 2005, c. 2, s. 35.

Marriage breakup division — exemption

14.2(1)     When a garnishing order is served under section 14.1 and the garnishee has notice that a person is entitled to a division of the judgment debtor's pension benefit credit under subsection 31(2) of The Pension Benefits Act as of the day of service, the amount of the entitlement is exempt from attachment under the garnishing order.

Marriage breakup division — statement to court

14.2(2)     When a garnishing order is served under section 14.1 and the garnishee has notice that there might be a person who is entitled to a division of the judgment debtor's pension benefit credit under subsection 31(2) of The Pension Benefits Act as of the day of service but is uncertain about that entitlement, the garnishee shall, within 90 days after the garnishing order is served,

(a) file with the court that issued the garnishing order a statutory declaration in the prescribed form setting out

(i) the amount of the judgment debtor's pension benefit credit,

(ii) the name and address, if known to the garnishee, of any person who might be entitled to a division of the pension benefit credit,

(iii) if the garnishee cannot provide the information referred to in subclause (ii), a description of the efforts the garnishee has made to ascertain whether a person is entitled to a division of the pension benefit credit and the person's name and address, and

(iv) any other relevant information; and

(b) provide a copy of the statutory declaration to the designated officer.

Payment suspended

14.2(3)     A garnishee who files a statutory declaration with the court under subsection (2) shall not make a payment under the garnishing order until the court determines payment under subsection (5).

Designated officer may require information

14.2(4)     The designated officer may require the judgment debtor or any other person to disclose to the officer details of the whereabouts of any person who is or might be entitled to a division of the judgment debtor's pension benefit credit under subsection 31(2) of The Pension Benefits Act.

Hearing to determine right to pension benefit credit

14.2(5)     On motion by the designated officer, after notice to the persons described in paragraph 1, the court may do one or more of the following:

1.

Determine the rights and liabilities of the garnishee, the judgment debtor, the person entitled to maintenance under the maintenance order, and any person entitled to a division of the judgment debtor's pension benefit credit under subsection 31(2) of The Pension Benefits Act as of the day the garnishing order is served.

2.

Determine any other matter relating to the garnishing order.

3.

Make any order that is just and necessary to give effect to its determinations.

Garnishee not required to pay into court

14.2(6)     When a motion is made under subsection (5), the garnishee is not required to deposit the amount of the judgment debtor's net pension benefit credit with the court before the court determines the matter.

S.M. 1995, c. 3, s. 24.

Protection from liability

14.3        When an amount is paid in good faith under a garnishing order in accordance with sections 14.1 and 14.2, whether pursuant to a court order or otherwise,

(a) the pension plan from which the amount is paid has no further obligation in respect of that amount to the judgment debtor or to any person who was or might have been entitled to a division of the pension benefit credit under subsection 31(2) of The Pension Benefits Act as of the day the garnishing order was served;

(b) in respect of the amount paid, no person may commence an action or proceeding of any kind against the pension plan, the garnishee who made the payment or the person entitled to payment under the maintenance order; and

(c) the amount paid to the person entitled to payment under the maintenance order is the exclusive property of that person.

S.M. 1995, c. 3, s. 24.

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 court costs assessed against the person,

(c.1) a justice services surcharge imposed under The Summary Convictions Act,

(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 »)

S.M. 2001, c. 32, s. 11; S.M. 2003, c. 4, s. 137.

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.

S.M. 2001, c. 32, s. 11.

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.

S.M. 2001, c. 32, s. 11.

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.

S.M. 2001, c. 32, s. 11.

REGULATIONS AND FORMS

Regulations

15          The Lieutenant Governor in Council may make regulations and orders

(a) prescribing a greater minimum amount than that set out in section 5 for any exemption allowed thereunder;

(b) prescribing a greater amount than that set out in section 7 for any exemption allowed thereunder;

(c) prescribing the form and content of documents relating to the garnishment process;

(d) respecting the manner of serving garnishing orders and notices of discontinuance by the designated officer, as defined in section 13.

S.M. 1995, c. 3, s. 25; S.M. 2004, c. 14, s. 16.

Form of documents

16          Documents relating to the garnishment process shall be in the form prescribed by the rules of the court issuing the garnishing process or in the form prescribed under clause 15(c).

S.M. 1995, c. 3, s. 26.

SCHEDULE A

Repealed.

S.M. 1992, c. 6, s. 8; S.M. 1995, c. 3, s. 27.

 

 


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