November 18, 2019
Effective December 1, 2019, the New Brunswick government will finally finalize the reform of N.B.’s money judgment enforcement regime with the new Enforcement of Money Judgments Act and the new Debtor Transactions Act. The N.B. government passed both laws in 2013 and 2015 respectively; however, neither have ever taken effect. The new regime significantly overhauls and modernizes how a litigant can enforce a judgment for a fixed sum of money in New Brunswick, improving the efficiency and effectiveness of the process for judgment creditors, particularly benefitting those that regularly obtain judgments against debtors, such as banks, leasing companies and financing companies. The government says it will publish regulations detailing the mechanics of the reformed regime in the coming weeks. In the meantime, here are the 10 key changes to the regime that will enhance judgment creditors’ ability to enforce money judgments in N.B.
1. Simplified Enforcement Process
The new regime simplifies the judgment enforcement process by unifying all judgment enforcement procedures under one law, and amending or repealing the more than 40 laws currently governing the process.
2. Expanded Pool of Property Available
A key component of the new regime is the expanded pool of property against which a judgment creditor can enforce a judgment, such as surplus income. Unless the property is specifically exempted from seizure, it can be seized to enforce a judgment. The new regime provides a clear list of the items that are partially exempt from seizure:
While the regime aims to protect the sustainability of individual judgment debtors and their dependents, the items are only partially exempt to the extent they are necessary to meet their reasonable needs. Importantly, the exemptions apply only to individual debtors and not corporate debtors.
In addition to, but unlike, the partial exemptions, there’s an absolute bar against seizure of a judgment debtor’s retirement funds, including registered retirement savings plans, registered retirement income funds and deferred profit sharing plans. Pensions also continue to be exempt from seizure under pension laws. Importantly, however, the absolute exemption doesn’t apply to payments from a retirement fund to the judgment debtor, which fall into the partial exemption category.
3. Increased Authority of Sheriff
The sheriff has increased authority in the judgment enforcement process, ranging from demanding payments to coordinating and performing enforcement procedures. The sheriff also has authority over serving and delivering all notices and documents under the new regime.
4. Preferential Enforcement Initiation
A judgment creditor can initiate enforcement procedures against a judgment debtor by simply delivering an “enforcement instruction” to the sheriff. While utilizing the sheriff to enforce judgments in this way isn’t mandatory, the new regime encourages it by granting those judgement creditors that do so priority in the distribution of enforcement proceeds over those that don’t.
5. Improved Access to Judgment Debtor Information
The sheriff has authority to require a judgment debtor to disclose information about their property, including exempt property, and their ability to satisfy a judgment. If the judgment debtor doesn’t comply with the sheriff’s request, the sheriff has authority to obtain an order requiring they attend an examination so the judgment creditor can question them to obtain that information. This process improves a judgment creditor’s access to information about a judgment debtor’s ability to satisfy a judgment, reducing the frequency – and associated costs – of creditor-invoked examinations of the judgment debtor.
6. More Recourse for Failure to Comply with Disclosure Requirements
A judgment creditor has recourse to any of several avenues when a judgment debtor fails to comply with the disclosure requirements or provides incomplete or dishonest answers:
7. Availability of Co-owned & Partnership Property
The sheriff has authority to sever and seize a judgment debtor’s interest in jointly held property. However, the sheriff must seize the property in a way that won’t deprive the co-owner of their possession or use of the property, and provide the co-owner with the first opportunity to purchase the judgment debtor’s interest. The sheriff also has authority to seize partnership property when the judgment debtor is a partner in a partnership.
8. Class Priority of Enforcement Proceeds Distribution
The new regime establishes a hierarchy of claimant classes when enforcement proceeds are to be distributed. The claims of each class must be satisfied in full before the enforcement proceeds will flow to the next class. If there are insufficient proceeds to discharge all the claims in a class, the class of claimants share the available proceeds on a pro rata basis.
9. Pre-Judgment Asset Preservation
Before obtaining a judgment, a creditor can apply to the court for a preservation order when they believe a debtor is depleting property, or is likely to do so. This mechanism replaces what’s commonly called the “Mareva” injunction, and is a more flexible way for a creditor to restrict dealings with the debtor’s property, require accounts owing to the debtor to be paid into court or impose conditions on the debtor. The court will issue a preservation order when satisfied of one of the following:
10. Ability to Deal with Pre-Judgment Debtor Transactions
Even before obtaining judgment against a debtor, a creditor can apply for a court order when it believes the debtor entered into any a transaction in any of these circumstances:
However, this doesn’t apply to transactions between spouses to divide property and financial resources following the breakdown of their relationship. The Court has authority to make any order it deems reasonable to restore the claimant’s ability to enforce its claim, including an order: revesting the transacted property in the debtor; that the transferee pay a sum equivalent to the value of the benefit received; and setting aside the transaction.
Please contact your McInnes Cooper lawyer or any member of the Litigation Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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