Civil Enforcement of Restitution Orders and Probation Orders With Outstanding Restitution Information For Victims of Crime

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1 Civil Enforcement of Restitution Orders and Probation Orders With Outstanding Restitution Information For Victims of Crime

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3 Civil Enforcement of Restitution Orders and Probation Orders with Outstanding Restitution: Information for Victims of Crime Table of Contents 1.0.Introduction What if my restitution order is a Section 738 order issued by the Court? What if my restitution is a condition of a Probation Order or Conditional Sentence Order? What is Sheriff Services? Contact Information Glossary of Terms Sample form Request for Judgment...13 This brochure has been prepared for information purposes only, and should not be considered a substitute for the law. If information in this brochure conflicts with statutes, the statutes are correct.

4 1.0 Introduction Obtaining restitution can be difficult and sometimes unsuccessful. While the steps outlined below are intended to assist you through the process of enforcing your restitution order, following the steps does not guarantee that you will be compensated for your loss. The criminal and civil justice systems are complex, so this information booklet can only convey a summary of the proceedings. If you have questions or concerns, contact the appropriate authority such as the Provincial or Supreme Court Administration offices, Sheriff Services or Victim Services. Contact information can be found in Section What if my restitution order is a Section 738 Order Issued by the Court? When a Judge issues a S. 738 order, the Court will prepare a Minute of Judgment and Writ of Execution (or Writ of Seizure and Sale of Personal Property). The Minute of Judgment will be registered with the Supreme Court on your behalf, and the Writ will be forwarded to Sheriff Services. The Clerk of the Court will send a copy of the S. 738 order, the Minute of Judgment and the Writ to the victim. All fees for filing the Minute of Judgment and the Writ will be waived; however, the applicable Sheriff fees are added to the outstanding amount owed by the debtor. Additionally, fees incurred by way of execution are payable by the victim and recoverable if able to execute on the Writ (see information on Sheriff Services in Section 4.0). The Minute of Judgment expires in 10 years unless renewed by the victim prior to the expiration of the 10 years. It can be renewed for an additional 10 years. It is up to the victim to request renewal. If you wish to renew the Minute of Judgment, please contact the originating court. 1

5 If the restitution amount is under $16,000, the Writ of Seizure and Sale of Personal Property is good for one year and renewed automatically by Sheriff Services. If the restitution amount is over $16,000, the Writ of Execution expires with the Minute of Judgment. If you request a renewal of the Minute of Judgment, the Writ will be renewed at that time. You are advised to contact Sheriff Services on an ongoing basis to provide any information that could assist in the enforcement of this judgment. 3.0 What if my restitution is a condition of a Probation Order or Conditional Sentence Order? If restitution was ordered as a condition of a Probation Order or Conditional Sentence Order, and the offender has not paid the required amount by the date or dates specified, you may, by filing the order, enter as a judgment any amount that remains unpaid. The steps involved in civil enforcement of Probation Orders and Conditional Sentence Orders with unpaid restitution are as follow: Step 1: Gathering Information About the Offender: ο You will be required to provide the following information about the offender: Full name Date of birth Current address ο Where available from the Court, this information may be included on the order. If not, you may have to request this information from the Police or Crown. 2

6 Step 2: Obtaining Confirmation of the Order and Restitution Owing ο You will be required to obtain, from the originating Court, a certified copy of the Probation Order or Conditional Sentence Order; and confirmation of the balance owing under the order (in the form of a certificate or affidavit). ο Take a copy of the order with you so the clerk will have the necessary information to confirm whether any monies have been paid. Step 3: Filing the Judgment at the Supreme Court ο Take the above information, along with a written request to file a judgment, to the Administration Office at the Supreme Court (see Section 7.0 for a sample Request for Judgment form). It is best to call and make an appointment in advance. See Section 5.0 for contact information. ο You must file the documents in person, as a victim signature is required. In the case of a business, the person representing the business will be required to sign an affidavit to confirm their authority to represent the business. ο The filing of the order in the Supreme Court makes it a Supreme Court civil judgment against the offender, in favour of the victim. Step 4: Obtaining a Minute of Judgment ο You should request that a Minute of Judgment be filed. This document can affect the offenders credit rating and any property owned. The Minute of Judgment expires in 10 years unless renewed by the victim prior to the expiration 3

7 of the 10 years. It can be renewed for an additional 10 years. It is up to the victim to request renewal. If you wish to renew the Minute of Judgment, please contact the originating court. Step 5: Obtaining an Execution Order (Writ of Execution or Writ of Seizure and Sale of Personal Property) ο The Deputy Registrar, at your request, can issue a Writ of Execution (or Writ of Seizure and Sale of Personal Property), directing the Sheriff to collect the judgment sum and court costs. Once issued, the Writ will be given to Sheriff Services ο If the restitution amount is under $16,000, the Writ of Seizure and Sale of Personal Property is good for one year and can be renewed by the victim prior to expiration by requesting renewal at the Supreme Court. ο If the restitution amount is over $16,000, the Writ of Execution expires with the Minute of Judgment. The victim must renew the Minute of Judgment and the Writ by contacting the originating court. ο You are advised to contact Sheriff Services on an ongoing basis to provide any information that could assist in the enforcement of this judgment. Step 6: Fees ο All fees for filing the Minute of Judgment and the Writ will be waived; however, any applicable Sheriff fees are added to the outstanding amount owed by the debtor. Additionally, fees incurred by way of execution are payable by the victim and recoverable if able to execute on the Writ. A fee schedule can be obtained from Sheriff Services. 4

8 4.0 What is Sheriff Services? Sheriff Services is a publicly funded service provided by the Department of Justice and Public Safety. This agency is authorized to manage Writs of Execution and Writs of Seizure and Sale. How do Sheriff Services collect what is owed? When a Writ of Execution or Writ of Seizure and Sale of Personal Property is filed with Sheriff Services: The Writ is received by the writ manager at Sheriff Services. The writ manager notes the time and date of delivery. He or she enters all information into an information management system, along with a calculation of current fees and commissions. The writ manager records the writ onto a list containing all current writs, which can be viewed upon request. A letter and copy of the writ are sent by mail to the debtor and the victim receives a copy. The letter tells the debtor that a writ has been filed with Sheriff Services and advises him or her what needs to be done to satisfy the matter. The debtor has 10 days to respond with a plan to settle the issue. This plan may include full payment, an offer for less than the full amount (if the victim agrees), a payment schedule (if the victim agrees), or a wage garnishee. There are a number of things that can happen if the debtor does not respond to the demand letter. Sheriff Services can seize and sell property or real estate; conduct an Examination in Aid of Execution; or conduct a hearing to consider a wage garnishee. These services have a fee, which is paid by the victim and recovered from the debtor when the writ is carried out (see fee schedule). For any of these things to happen, the victim must start the process. Sheriff Services staff can assist in decision making as to which is the most appropriate method in your case. 5

9 Is there a guarantee I will get the restitution that the Court ordered owed to me? Collection is not guaranteed. Sheriff Services may encounter problems collecting on a specific writ. Some of the challenges include: The Debtor cannot pay: If a debtor has a low income, he or she may lack the ability to pay. In this case, Sheriff Services may arrange a payment schedule with the debtor. The payment schedule doesn t always work because the arrangement is not always maintained by the debtor. If Sheriff Services know where the debtor works, a Wage Garnishee Hearing may be held to determine the amount, if any, that can be deducted from his or her wage. If the debtor has a low income, a wage garnishee may not be appropriate. There is a fee charged to the victim to conduct a Wage Garnishee Hearing. This fee is added to the total amount owing and is recovered if Sheriff Services are able to collect on the writ. A fee schedule can be obtained from Sheriff Services. Sheriff Services cannot identify assets of the Debtor: Sometimes a writ is filed against a person that the victim knows very little about. When this happens, it can be difficult to identify the debtors assets. In this instance, Sheriff Services will recommend an Examination in Aid of Execution take place. This is a hearing held under oath to determine the assets of the debtor and whether he or she can pay what is owed. There is a fee charged to the victim to conduct an Examination in Aid of Execution. This fee is added to the total amount owing, and is recovered if Sheriff Services are able to collect on the writ. 6

10 Sheriff Services does not have enough information on the Debtor: It is important that all of the debtors available contact information is on the Judgment. It is the Courts responsibility to provide all available information, however, the victim should also forward any information about the debtor that they are aware of, as Sheriff Services requires as much information as possible to collect on the writ (place of employment, banking institution, vehicle driven, etc). The Victim has unreasonable expectations: The victim often believes that the debtor will be forced to pay the amount owing on the writ regardless of financial circumstances. If it is determined that the debtor cannot pay, the Writ and Minute of Judgment will remain active for the prescribed time-frame, in the event that the debtors financial circumstances change. A victim may file a writ knowing it may not be paid right away, in the hope that the debtors financial situation will improve. 7

11 5.0 Contact Information Provincial Court Charlottetown Kelly Building 3 Harbourside Charlottetown, PE Telephone: (902) Summerside 108 Central Street P.O. Box 2290 Summerside, PE, C1N 3L4 Telephone: (902) Fax: (902) Georgetown 60 Kent Street P.O. Box 70 Georgetown, PE, C0A 1L0 Telephone: (902) Supreme Court Administration Offices Sir Henry Louis Davies Law Courts 42 Water Street, PO Box 2000 Charlottetown, PE C1A 7N8 Telephone: (902) Fax: (902) Summerside Law Courts - Supreme Supreme Court of Prince Edward Island 108 Central Street Summerside, PE, C1N 3L4 Fax: (902)

12 Sheriffs Service Sheriff Services - Queens and Kings County Supreme Court of Prince Edward Island 42 Water Street, PO Box 2000 Charlottetown, PE C1A 7N8 Telephone: (902) Fax: (902) Sheriff Services - Prince County Summerside Law Courts Building 322A Notre Dame Street Summerside, PE C1N 1S5 Telephone: (902) Fax: (902) Victim Services Queens and Kings Counties 1 Harbourside Access Road P.O. Box 2000 Suite 19, 2 nd Floor Charlottetown, PE, C1A 7N8 Telephone: (902) Prince County 263 Heather Moyse Drive Summerside, PE, C1N 5P1 Telephone: (902)

13 6.0 Glossary of Terms Victim: Debtor: Writs: Minute of Judgment: Examination in aid of Execution: The person on behalf of whom a Judgment was filed. The person against whom a Judgment was filed A document issued by the Registrar against a debtor, at the request of the court/victim. The Court Clerk may file a Writ of Seizure and Sale of Personal Property when under $16,000, or a Writ of Execution when over $16,000 in instances where the court has determined that monetary restitution is payable by an offender, to a victim. This document enables the Sheriff to seize and sell real or personal property owned by the debtor. At the request of the Court Clerk, the Registrar may issue a Minute of Judgment. Although the Sheriff cannot collect on a Minute of Judgment, the debtor s ability to obtain loans and sell or buy property may be affected. The Minute of Judgment is in effect for ten years from the date of filing and can be renewed by the victim for a further ten years, if done before expiration of the ten year period. Upon direction from the victim, a hearing is conducted by the Sheriff, with the debtor, under oath. This is done to determine the assets of the debtor and whether he or she can pay what is owed. If there are assets which can be seized, the party to whom the money is owed can direct the Sheriff to seize and sell that property. (A fee schedule can be obtained from Sheriff Services) 10

14 Wage Garnishee: Wage Garnishee Hearing: Assets: Real Property: Seizure: Sale: A court order to take part of the wage for an amount determined through a hearing. A Garnishee order, which is directed to a third party owing money to the victim, which may be collected on behalf of the victim. A hearing conducted by the Prothonotary or Sheriff, to determine whether part of a debtor s wage can be taken to satisfy the Judgment claim, and if so, how much. Factors such as the debtor s income and reasonable monthly expenses are considered. If a wage garnishee is ordered, it is sent directly to the debtor s employer. The employer is required to forward the specified amount to the Sheriff each month. (A fee schedule can be obtained from Sheriff Services) Property owned by the debtor, which may be subject to seizure and sale. (some legislative restrictions apply and can be explained by the Sheriff) A term used to indicate real estate such as a house, apartment building or land owned by the debtor. (A writ must be filed for a period of four months and all other means of execution of the writ must be pursued prior to seizure and sale of real property) The action by the Sheriff of taking possession of and selling property owned by the person who owes the money The public auction of seized assets from a debtor. The proceeds of the sale are paid to the person to whom the debt is owed. (the Sheriff may apply a portion of the proceeds to the amount owing as commission) 11

15 Payment Plan: Wage Garnishee Agreement: Satisfaction Piece: An arrangement made with the debtor to pay a fixed amount of money each month until the debt is paid. (the victim has the option of accepting an amount less than the full claim) If the debtor is employed, a voluntary wage garnishee agreement may be signed and if he or she defaults on the agreement, a wage garnishee order may be sent to his or her employer, without having to conduct a wage garnishee hearing. A document signed by an employed debtor. It includes an amount that the debtor agrees to pay each month. If the debtor fails to make the arranged payments, an order may be issued to his or her employer for the arranged amount, without having to conduct a wage garnishee hearing. A document signed by the person who is owed the money when the amount owing has been paid in full, or otherwise paid to the satisfaction of the victim, which is then filed with the court to indicate that the matter has been resolved. 12

16 7.0 Sample: Request for Judgment Form PROVINCE OF PRINCE EDWARD ISLAND SUPREME COURT BETWEEN: Plaintiff AND: Defendent REQUEST FOR JUDGMENT Not having been paid pursuant to the Probation Order of Judge/ Justice. dated. I request that the said Order be filed in the Supreme Court and enforced as if it were an Order of the Court. Dated at, the day of,

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