T-1762-84
Lynn Catharine Weniuk (Judgment Creditor)
and
Mike Matthews Weniuk (Judgment Debtor)
and
Wometco (B.C.) Limited (Garnishee)
Trial Division, Muldoon J.—Ottawa, September
14, 1984.
Matrimonial causes — Manitoba Queen's Bench issuing
order varying maintenance payments provided for in decree
nisi — Order becoming order of Federal Court, Trial Division
by virtue of registration pursuant to s. 15 Divorce Act and R.
1087 Federal Court Rules — Affidavit evidence complete —
S. 56 Federal Court Act providing Court may issue process of
same tenor and effect as issued out of superior courts of
province in which order to be executed — Garnishee and
judgment debtor in British Columbia, judgment creditor in
Manitoba — Provincial legislation providing for continuing
garnishment of wages of defaulting maintenance debtors —
Federal Court's processes and forms adaptable to tenor and
effect of garnishment proceedings found in B.C. Family Rela
tions Act and Court Order Enforcement Act — Ex parte
application in writing for garnishing order — Order granted
for three months — Federal Court not making maintenance
order and not able to make enduring attachment order —
Judgment debtor to have opportunity in person of showing
cause why maintenance order should not be enforced — Feder
al Court Act and Rules not permitting such course — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 56 — Federal
Court Rules, C.R.C., c. 663, RR. 1087, 2300(4) — Divorce
Act, R.S.C. 1970, c. D-8, ss. 5(2)(b), 11, 14, 15 — Constitution
Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix
II, No. S] (as am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 1), s. 101 —
Court Order Enforcement Act, R.S.B.C. 1979, c. 75, ss. 4(6),
29 — Family Relations Act, R.S.B.C. 1979, c. 121, ss. 66,
67, 68.
This is an ex parte application in writing for a garnishing
order disposed of without appearance by the parties. The
judgment creditor registered a certified copy of an order vary
ing the maintenance provisions of the decree nisi pronounced by
the Manitoba Court of Queen's Bench. By operation of section
15 of the Divorce Act and Rule 1087 of the Federal Court
Rules the order is now an order of the Federal Court, Trial
Division. Section 56 of the Federal Court Act provides that the
Court may issue process against the person or property of any
party of the same tenor and effect as may be issued out of any
of the superior courts of the province in which any judgment or
order is to be executed.
Held, the application for a garnishing order is allowed but
the order to endure for a three month period only.
At one time unheard of, various provincial legislatures have
in recent years enacted legislation providing for continuing
garnishment of wages so long as a maintenance debtor contin
ues in the employment of the garnishee or until further court
order. Such legislation has been passed in response to the
scandal resulting from the non-payment of maintenance orders,
the problems of enforcement and the consequent burden on
taxpayers for welfare payments to deserted spouses and their
children. Section 56 is useful where the order to be enforced is
made initially by a provincial superior court "for the better
administration of one "of the laws of Canada" (i.e. the
Divorce Act). Here the transprovincial presence and jurisdic
tion of the Federal Court can be conveniently invoked to
compensate for the limited territorial jurisdiction of the provin
cial superior courts in enforcing a statute which Parliament has
enacted for effect throughout Canada. Since the garnishee and
the judgment debtor are in British Columbia, resort may be
had to the laws of that Province, in addition to any process
which is prescribed by this Court's Rules for the enforcement of
its judgments or orders. The Court may choose the most
efficacious means of enforcement of its order. The detailed
provisions of the B.C. Court Order Enforcement Act and the
Family Relations Act cannot be followed precisely, although
the tenor and effect of the process which may be issued out of
the Supreme Court of British Columbia can be realized by
adaptation of the Federal Court's processes and forms. Except
for the feature of continuity of garnishment of wages and the
provision making it an offence to dismiss or demote an
employee solely by reason of the garnishment, the remedy is not
greatly at variance from that which is provided in the Federal
Court Rules. The Court cannot grant an enduring attachment
order of the same tenor and effect as that which may be issued
out of the Supreme Court of British Columbia because it is not
the court which made the maintenance order. Such an attach
ing order's existence is predicated upon the debtor having the
opportunity to show cause in person why the maintenance order
should not be enforced. Since the Federal Court Act and the
Federal Court Rules do not permit the course circumscribed by
provincial boundaries and legislation, the Federal Court is
unable to give the most efficacious remedy which is that
prescribed by the provincial legislation.
CASE JUDICIALLY CONSIDERED
DISTINGUISHED:
Supeene v. Beech, judgment dated June 18, 1978, Federal
Court, Trial Division, T-1528-76, not reported.
COUNSEL:
G. Thomas Hodgson for judgment creditor.
SOLICITORS:
Morkin, Hayes & Dobrowolski, Winnipeg,
for judgment creditor.
The following are the reasons for order ren
dered in English by
MULDOON J.: The judgment creditor applies ex
parte for a garnishing order to attach all debts
owing or accruing to the judgment debtor by the
garnishee, which is his employer as shown by an
order varying a decree nisi pronounced by the
Court of Queen's Bench of Manitoba.
This type of application is a rarety in this Court.
An earlier application of this sort was made in
1976 in the matter of Supeene v. Beech, judgment
dated June 18, 1978, Federal Court, Trial Divi
sion, T-1528-76, not reported. That case is report
ed and mentioned in a study paper of the Law
Reform Commission of Canada, titled Practical
Tools to Improve Interprovincial Enforcement of
Maintenance Orders After Divorce written in 1979
by C. Myrna Bowman, Q.C., now a Judge of the
Court of Queen's Bench of Manitoba. The reasons
expressed by Associate Chief Justice Thurlow (as
he then was) in Supeene v. Beech for refusing the
application do not apply in the circumstances of
the present motion.
It will be convenient, first, to note the operative
provisions of the varying order pronounced by the
Queen's Bench on May 1, 1984 and signed on the
fifteenth day of that month. They are:
1. THIS COURT DOTH ORDER AND ADJUDGE THAT payment of
maintenance as provided in paragraph 3 of the Decree Nisi
announced by the Honourable Mr. Justice Hunt on the 9th day
of February, 1976 be varied as follows:
The Respondent do pay to the Petitioner, by way of mainte
nance for the children of the marriage the sum of $600.00
per month on the 1st day of each and every month commenc
ing the 1st day of May, 1984 and continuing thereafter until
further Order of this Court.
2. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE
THAT the motion for lump sum maintenance be adjourned sine
die with leave to the Petitioner to bring this matter on before
this Court upon serving the Respondent with 14 days' notice by
registered mail at the address of his employer, being:
WOMETCO (B.C.) LIMITED
2471 Viking Way
Richmond, British Columbia
V6V 1N3.
3. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE
THAT the Respondent do pay the costs of the Petitioner which
are hereby fixed at $350.00 plus $61.20 disbursements.
That order clearly grants corollary relief to the
(petitioner) judgment creditor pursuant to section
11 of the Divorce Act, R.S.C. 1970, c. D-8.
The Act further provides:
14. A decree of divorce granted under this Act or an order
made under section 10 or 11 has legal effect throughout
Canada.
The above-cited provision enacts that such an
order for corollary relief is to have a transprovin-
cial reach even although it may be pronounced by
a provincial superior court whose orders normally
have no extra-territorial effect. Obviously, this
analysis would be unnecessary if the order for
corollary relief were made by this Court exercising
the jurisdiction accorded to it pursuant to para
graph 5(2)(b) of the Divorce Act, but that provi
sion happens rarely to be invoked. However, the
way to enforcement would surely be clear, and
would be seen to be clear, in a case in which the
proceedings were all taken in the Federal Court.
Must it be otherwise when the substantive pro
ceedings are taken in a provincial superior court?
That is the question to be resolved here.
A certified copy of the above-mentioned order
was registered in this Court, on August 24, 1984,
pursuant to section 15 of the Divorce Act. That
section provides:
15. An order made under section 10 or 11 by any court may
be registered in any other superior court in Canada and may be
enforced in like manner as an order of that superior court or in
such other manner as is provided for by any rules of court or
regulations made under section 19.
The registration of such an order is specifically
countenanced by the Rules of this Court, thus:
Rule 1087. (1) Where an order has been made by any other
superior court in Canada under section 10 or 11 of the Divorce
Act, the registration of such order in the Federal Court of
Canada, pursuant to section 15 of the Act, shall be effected by
filing an exemplification or certified copy of the order in the
Registry, whereupon it shall be entered as an order of the Trial
Division.
So, although that order of the Court of Queen's
Bench of Manitoba was not pronounced by this
Court in the first place, by operation of section 15
of the Divorce Act and of this Court's Rule 1087,
it has now become an order of the Trial Division of
this Court.
According to the judgment creditor's affidavit,
filed in support of her application herein, the
payments ordered by the Court of Queen's Bench
together with the awarded costs remain wholly
unsatisfied. This affidavit does not evince the
deficiencies perceived by Chief Justice Thurlow in
the affidavit sworn by the judgment creditor in
Supeene v. Beech. Although Mrs. Weniuk swears
that she is informed and believes that the garni
shee is indebted to the judgment debtor, the order
which she seeks to enforce demonstrates a finding
by the Queen's Bench Judge of the judgment
debtor's employment by the garnishee. It does
seem quite likely that she has a personal knowl
edge of it which is as positive as that of most
deponents in garnishment proceedings. Moreover,
the affidavit clearly demonstrates the debt's origin
and nature by detailed reference to the order
pronounced by the Queen's Bench Judge. Such
detailed reference includes the amount still
owing—it remains wholly unsatisfied—and of
course the judgment creditor has a keen knowledge
of the judgment debtor's failure to pay mainte
nance for the children of his now dissolved mar
riage. The debt owing by the garnishee to the
judgment debtor is obviously inter alia for wages,
but indebtedness for other reasons is not excluded.
In recent years the notion of continuing garnish-
ment of wages having effect for as long as the
maintenance debtor remains employed by the gar
nishee, or else until further order of the court, is
not so unheard of as it used to be. In recent years
several provincial legislatures have enacted such
provisions so as to minimize the notorious scandal
of unpaid maintenance due to expensive and cum
bersome laws relating to enforcement of mainte
nance and, incidentally, so as to aid in placing the
primary responsibility for maintenance payments
where it belongs instead of on provincial and
municipal taxpayers through the payment of wel
fare to deserted spouses and their children.
In surveying the legal tools available to this
Court for the enforcement of its orders, one notes
that the Court may resort, by analogy, to provin
cial laws. Thus, section 56 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10] provides as
follows:
56. (1) In addition to any writs of execution or other process
that are prescribed by the Rules for enforcement of its judg
ments or orders, the Court may issue process against the person
or the property of any party, of the same tenor and effect as
those that may be issued out of any of the superior courts of the
province in which any judgment or order is to be executed; and
where, by the law of that province, an order of a judge is
required for the issue of any process, a judge of the Court may
make a similar order, as regards like process to issue out of the
Court.
The above-cited provision is of great utility par
ticularly where, as here, this Court's order to be
enforced is made initially by a provincial superior
court pursuant to, and "for the better administra
tion" of, one "of the laws of Canada" (the Divorce
Act) as those expressions are understood in section
101 of the Constitution Act, 1867 [30 & 31 Vict.,
c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as
am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 1)].
Here, the transprovincial presence and jurisdiction
of the Federal Court can be invoked conveniently
to compensate for the limited territorial jurisdic
tion of the provincial superior courts in enforcing a
statute which Parliament has enacted for effect
throughout Canada. This procedure takes nothing
away from the provincial superior courts but,
rather, extends the reach of their maintenance
orders through the good offices of the Federal
Court of Canada.
In this instance, the garnishee and the judgment
debtor are both to be found in British Columbia.
Therefore, resort by analogy may be had to the
laws of that Province, in addition to any process
which is prescribed by this Court's Rules for the
enforcement of its judgments or orders. Accord
ingly, the Court may choose the apparently most
efficacious means of enforcement of its recently
registered order. Of course the detailed provisions
of the provincial legislation cannot be followed
precisely. They must be adapted rather than
adopted because of the frequent divergence of
provincial procedures, offices and institutions from
those available to the Trial Division of this Court.
Indeed, section 56 of the Federal Court Act per
mits the Court to "issue process ... of the same
tenor and effect as those that may be issued out of
... the superior courts of the province in which
any ... order is to be executed;" (emphasis
added): it does not exact the very same process in
every respect.
In both Manitoba and British Columbia the
respective legislatures have provided for the endur
ing or continuing garnishment of wages in order to
satisfy maintenance debts created by decrees nisi
providing for the payment of periodic sums
ordered pursuant to the Divorce Act. Although the
precise conditions of the debtor's default required
to trigger such on-going garnishment of wages
may differ as between the respective laws of those
two provinces, the legislators in each province have
expressed the same principle of enforcement
against defaulting maintenance debtors. In this
instance the maintenance debtor has removed him
self from Manitoba and into British Columbia, but
he has not thereby removed himself from exigibili-
ty to the process of continuing garnishment of his
wages for the maintenance of his children. He
may, of course, take the advantage of provisions
for exemption from garnishment enacted in the
province where the order is to be executed.
The Court Order Enforcement Act, R.S.B.C.
1979, c. 75 provides, in section 4, the following
principle:
4....
(6) Notwithstanding any other provision of this Part, where
the wages of a person are seized or attached under
(a) a court order for alimony or maintenance;
(b) a duly executed separation agreement; or
(c) an order under the Family Relations Act,
the exemption allowed to that person is 50% of any wages due
where the wages due do not exceed $600 per month, and is
33 1 / 2 % for wages in excess of $600 per month; but in no case
shall the amount of the exemption allowed under this subsec
tion be less than $100 per month, or proportionately for a
shorter period.
The Family Relations Act, R.S.B.C. 1979, c.
121 provides, albeit in the institutional context of
that legislation, certain processes of enforcement
which are nevertheless adaptable, in their tenor
and effect, for the enforcement of the maintenance
order which has, through registration now become
an order of the Trial Division of this Court. Thus,
the Family Relations Act of British Columbia
provides as follows:
Garnishment
66. (1) For the purposes of this section, "garnishee" means a
person, or the Crown or a Crown agency, named in an order
made under subsection (2) as, or likely to be, a debtor of a
person against whom an order under sections 56 to 62 is made.
(2) The court may, on ex parte application by a person
affected by an order made under sections 56 to 62 other than
the person against whom it was made, make an order that shall,
subject to subsection (3), be deemed to be an order made under
section 4 of the Court Order Enforcement Act.
(3) Notwithstanding Part 1 of the Court Order Enforcement
Act, an order made under subsection (2) shall, if provided in
the order, remain in force for a period of 3 months, unless the
court earlier discharges it, to seize and attach any debt that
becomes owing, payable or due at any time while the order
remains in force without further application or further order.
(4) Where the garnishee admits a debt, he shall promptly
pay to the court the amount of the debt or the amount limited
by the order, to be applied for the support and maintenance of
the person for whose benefit the order under sections 56 to 62
was made.
(5) Payment under subsection (4) by a garnishee is, to the
extent of the amount paid, a valid discharge of the garnishee as
against the person who is the creditor of the garnishee.
Show cause on default
67. (1) Where a person defaults and is in arrears under an
order made under sections 56 to 62, the court that made the
order may, as often as default occurs, issue a summons requir
ing the person to appear at a time and place mentioned in the
summons, or issue a warrant for the apprehension and presen
tation in court of the person in default, to show cause why the
order should not be enforced under this section.
(2) At a hearing under this section, the court shall inquire
into the circumstances of the person in default, and may, by
order that may be subsequently varied to meet changed circum
stances, enforce payment of the arrears by ordering, notwith
standing section 72 of the Offence Act, that the person in
default be imprisoned for a period of not more than 30 days if
the arrears or a specified portion of them are not paid by a date
specified in the enforcement order.
(3) Where an enforcement order under subsection (2) is in
force, money paid by the person in default shall be credited in
the following manner:
(a) an amount that became due and owing under the mainte
nance order after the date of the enforcement order shall
be paid first;
(b) a balance remaining after the amount referred to in para
graph (a) has been paid shall be applied against the
arrears.
(4) Imprisonment under this section does not discharge the
arrears referred to in the enforcement order.
Attachment orders
68. (1) Where, at the conclusion of a hearing under section
67, the court finds that the person in arrears is receiving
sufficient remuneration from employment or other sources to
comply with the order made under sections 56 to 62 but has not
so complied, the court may make an attachment order directing
every employer from time to time of the person in arrears, for
so long as the order remains in force, promptly to deduct and
pay to the court from that employee's remuneration as it
becomes due and owing from time to time an amount specified
in the attachment order, not exceeding the amount prescribed
in Part 1 of the Court Order Enforcement Act for a garnishing
order.
(2) Where an attachment order is made under subsection
(1), it is binding on every current or subsequent employer who
is served with a copy of the order.
(3) Money paid into court by the employer under subsection
(1) shall be credited in the manner set out in section 67(3) and
applied against the arrears and future maintenance payments
as they become due and owing.
Except for the feature of continuity of garnish-
ment of wages, and that other feature of the
British Columbian legislation (section 29 of the
Court Order Enforcement Act) which makes it an
offence to dismiss or demote an employee solely by
reason of the garnishment, the remedy is not
greatly at variance from that which is provided in
the Rules of this Court. The tenor and effect of the
process which may be issued out of the Supreme
Court of British Columbia can be realized by
adaptation of the Federal Court's process and
forms. In such a case, of course, since the Divorce
Act is one of "the laws of Canada" it would be
possible to provide for standard enforcement
procedures in this Court for effect throughout
Canada, but no such standardization is available
in the instant matter.
The garnishee will be obliged to show cause if
no sums be actually owing to the judgment debtor,
otherwise it shall promptly remit payments to the
judgment creditor at the office of this Court in
Vancouver [Rule 2300(4)] whose address will be
shown on the garnishing order. The order shall not
be served on the judgment debtor, and shall
remain in force for a period of three months. With
the exemptions allowed to the judgment debtor
under subsection 4(6) of the Court Order Enforce
ment Act, the maintenance due at the rate of $600
per month from May 1, 1984, together with costs,
is unlikely to be recovered unless the judgment
debtor in the meanwhile makes the effort to place
himself in good standing. He is already six months
in default.
The garnishing order above-mentioned responds
to and allows the judgment creditor's motion in
part, that is "... for an order that all debts owing
or accruing from Wometco (B.C.) Limited ... to
the judgment creditor shall be attached to answer
the judgment debt", but the garnishing order will
endure only three months and the maintenance
payments are exacted and will continue until fur
ther order of the Court of Queen's Bench of
Manitoba. The judgment debtor has already
defaulted and under the provincial family relations
legislation, after facing "the court that made the
order", if that court were to find that he is receiv
ing sufficient remuneration from employment or
other sources to comply with the order, he could be
made exigible to an attachment order as provided
in section 68 of the Family Relations Act.
In order to grant an enduring attachment order
of the same tenor and effect as that which may be
issued out of the Supreme Court of British
Columbia, this Court would have to be the court
which made the maintenance order, but it is not.
The attaching order's existence is predicated upon
certain conditions. The court which made the
maintenance order must first have the debtor
before it either on summons or warrant; he must
be permitted in person to show the court cause, if
any, why the maintenance order should not be
enforced; and at the conclusion of the hearing, if
the court concludes that the debtor is receiving
sufficient remuneration, then the court may make
the attachment order. Since the constituting stat
ute and procedures of this Court do not, in their
present form, permit the course circumscribed by
provincial boundaries and the particular provincial
legislation, this Court is unable to give the most
efficacious remedy which is that prescribed by the
provincial legislation.
Nothing herein should be taken to prevent the
judgment creditor from attempting to pursue other
avenues of enforcement which may be open to her
under the Rules of this Court and advised by her
solicitors.
The application for a garnishing order of three
months' duration, as mentioned herein, is allowed
with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.