Writ of seizure and sale in Ontario is a document the court issues to help collect money that is owed.
Collecting a debt through seizure and sale of the debtor's property is an eight step process:
1. Complete an Affidavit for Enforcement Request. You will need to describe the details of the court order you are enforcing and how much money is still owed.
2. Complete the Writ of Seizure and Sale of Personal Property form.
3. Complete a list of the property you want to seize and sell by using the Direction to Enforce Writ of Seizure and Sale of Personal Property form.
4. File only the Affidavit and the Writ in the court where you obtained your judgment. Court staff willissue the Writ (by signing it) and return the original to you to file in the enforcement office.
5. File the issued Writ and the Direction to Enforce Writ at the enforcement office. The detailed information on the Direction to Enforce Writ form will allow the enforcement staff to locate and seize the specific property.
6. Pay an enforcement fee and a deposit to the enforcement office to cover the anticipated expenses to enforce the Writ. These may include costs for such things as freight, insurance, locksmith, storage, mileage and advertising of the sale of the goods seized.
7. Enforcement staff will seize and store the items until a public auction is held, at which time the goods will be sold.
8. The enforcement office will calculate the net amount of proceeds from the sale and the funds will be deposited with the court. After which, the net proceeds will be distributed to the creditors who initiated the enforcement process.
If you are seeking to enforce a judgment or order for the payment or recovery of money, you may ask the court to issue one or more a writ(s) of seizure and sale, and then file those writs with the sheriff(s) (see Rule 60.07). In essence, a Writ of Seizure and Sale (Form 60A) provides the sheriff with the authority to seize and sell the real and personal property belonging to the debtor that are within the geographic jurisdiction of the sheriff. On filing with the sheriff a writ of seizure and sale may also have the effect of binding land belonging to the debtor in the sheriff’s jurisdiction. Form 60A is attached at the end of this guidebook. There are fees associated with the issuing, filing, and enforcement of these writs.
The procedure is:
1) Requisition a writ of seizure and sale Ontario from the registrar. The requisition must set out:
- the details of your judgment or order (e.g. judgment, costs, interest, etc.);
- the sheriff’s jurisdiction in which the writ is to be filed;
- the date and amount of any payment received since the order was made; and
- the amount owing and the rate of post-judgment interest
The requisition must be filed with the registrar where the proceeding was commenced together with a copy of the order as entered and any other evidence necessary to establish the amount awarded and the creditor’s entitlement (Rule 60.07(1)).
Which sheriff should the writ of seizure and sale Ontario be directed to?
If the debtor has land or personal property that you are interested in having the sheriff seize and sell to satisfy the debt to you, you should file the writ with the sheriff that has jurisdiction over the area in which the property is located.
Note: Be sure to properly name the debtor in the writ because the writ is only effective against the specific name contained in it. If the debtor(s) use aliases (i.e., other names), or if a person’s name has been changed (e.g., after a marriage), a motion can be brought to the court to amend the writ to include these various aliases/names (see Rule 60.07(10)). The writ must also be amended to reflect this change.
2) Issuance of the writ by the registrar. There is a fee for this process. The issued writ will be returned to you to file with the sheriff (the enforcement office).
3) File writ of seizure and sale with sheriff. There is a fee for this process. On filing you may choose to ask the sheriff to seize property of the debtor. You must tell the sheriff exactly what property you want seized, and in some cases provide proof that the property is owned by the debtor and that the property is of sufficient value to sell (see section 2 of the Execution Act).
You should also be aware that some of the debtor’s property is exempt from seizure by the creditor under the Execution Act.
The debtor also has the right to choose the goods that make up the exemptions. Full details of the exemptions under the Execution Act and its regulations are available on the e-laws website at: www.e-laws.gov.on.ca.
4) File a copy of the order as entered together with a Direction to Enforce Writ (Form 60F), and letter of instruction with the sheriff. The direction to enforce must set out:
- the date of the order and the amount awarded;
- the rate of post judgment interest payable;
- the costs of enforcement to which the creditor is entitled under Rule 60.19;
- the date and amount of any payment received since the order was made; and
- the amount owing, including post- judgment interest.
The letter of instruction must set out in detail the actions you wish the sheriff to perform.
Note: writ of seizure and sale Ontario must be filed for enforcement at least four (4) months before you may request a sale of land. (Rule 60.07(17))
Direct that the sheriff enforce the writ for the amount owing, subsequent interest and the sheriff’s fees and expenses. (Rule 60.07(13)).
Note: There is no province of Ontario wide registration system for writs of seizure and sale. In order to be effective, the judgment creditor must file a writ of seizure and sale with the sheriff and the Land Titles office in each jurisdiction where the debtor may have assets.
When is Leave (Permission) from the Court Required?
You can requisition a writ of seizure and sale without leave (permission) of the court unless six (6) years or more have passed since the date of the order or the enforcement is subject to any conditions. In those circumstances, a writ of seizure and sale will not be issued without leave from the court (see Rule 60.07(2)).
Duration and Renewal of the writ of seizure and sale Ontario
A writ of seizure and sale remains in force for six (6) years from the date of issue and for a further six years from each renewal. A writ of seizure and sale that is filed with a sheriff may be renewed before its expiration by filing a Request to Renew (Form 60E) with the sheriff. Form 60E is attached to the end of the guidebook.
Note: It is your responsibility to keep track of the expiry date for your writ(s).
We believe the information contained in this article to be accurate. It is presented with the understanding that we are not engaged in rendering legal, accounting, or investment advice. When professional assistance is required, utilize the services of a licensed real estate broker, lawyer, accountant, or other consultant as may be required.
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