T-4956-77
Elvira Brigitte Heinzl (Judgment Creditor)
v.
Hans Heinzl (Judgment Debtor)
and
Canada Safeway Limited (Garnishee)
Trial Division, Cattanach J.—Ottawa, January 30,
1978.
Practice — Ex parte application pursuant to Rule 324 for
"Continuing Garnishing Order" similar to those granted by
Manitoba Court of Queen's Bench — "Continuing Garnishing
Order" of that Court to enforce maintenance order in decree
nisi of Alberta Supreme Court, registered with that Court,
ineffectual as judgment debtor and garnishee resident of
Alberta — Order of Alberta Supreme Court subsequently
registered in Federal Court and enforcement sought pursuant
to Rules 5 and 1900 — Divorce Act, R.S.C. 1970, c. D-8, s. 15
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 56
Federal Court Rules 5, 1900, 2300 — The Garnishment Act,
R.S.M. 1970, c. G20, s. 14.
This is an ex parte application pursuant to Rule 324, for a
garnishee order. A copy of a decree nisi, granted in a divorce
action by the Supreme Court of Alberta, was registered in the
Federal Court's registry office in Winnipeg, in accordance with
section 15 of the Divorce Act. The order of the Supreme Court
of Alberta, therefore, became enforceable by the processes of
this Court. The motion requests—purportedly under Rules 5
and 1900—a "Continuing Garnishing Order" in the combined
terms as the two orders obtained in the Manitoba Court of
Queen's Bench.
Held, the application is dismissed. Rule 1900 is simply a
recital of processes available to enforce an order or judgment
for the payment of money. Rule 5, the "gap rule", does not
avail the judgment creditor as there is no gap. Although Rule
2300 provides for garnishment proceedings, there is no provi
sion in the Rules for the grant of a "continuing" garnishee
order as provided for in The Garnishment Act of Manitoba.
The solicitor for the judgment creditor should not seek to
invoke Rule 5 but section 56 of the Federal Court Act. Section
56(1) provides that the Court may issue process against a
person of the same tenor and effect as may issue out of the
court of the province where the judgment or order is to be
executed. It has not been established that the Courts of Alberta
will issue a continuing garnishing order in terms similar to the
order under section 14 of the Manitoba statute nor whether
such an order would issue on an ex parte application therefor,
both of which are being asked of this Court.
APPLICATION.
COUNSEL:
Bonnie M. Helper for judgment creditor.
No one appearing for judgment debtor.
No one appearing for garnishee.
SOLICITORS:
Walsh, Tadman & Yard, Winnipeg, for judg
ment creditor.
Lyons, MacKenzie & Brimacombe, Edmon-
ton, for judgment debtor.
No solicitors of record for garnishee.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an ex parte application
pursuant to Rule 32;4, for a garnishee order by
which it is requested that the garnishee be ordered
to deduct from the salary or wages of the judg
ment debtor the sum of $75 in each month so long
as the judgment debtor continues to be employed
by the garnishee and a further sum of $50 per
month to be applied to the reduction of arrears
accumulated on the judgment recovered. The said
sums are to be net to the judgment creditor, that is
to say the amount to be paid shall include the costs
of recovery in addition to the specified sums.
The judgment debtor petitioned in the Trial
Division of the Supreme Court of Alberta in the
Judicial District of Edmonton for divorce.
A decree nisi issued on December 1, 1975 by
which the divorce was granted subject to a decree
absolute after three months from that date and
incorporated in and forming part of the decree nisi
were minutes of settlement between the parties.
By virtue of that agreement certain divisions of
real and personal property were made and the
judgment debtor herein undertook to pay to the
judgment creditor the sum of $75 on the first day
of each month beginning on December 1, 1975 for
the support of an infant child to the marriage until
the child reached 21 years of age or until she
married and was so ordered to do by the decree
nisi.
The judgment debtor failed to. make the pay
ments so ordered in the months of August, Sep-
tember, November and December of 1976 and
from January 1977 to date.
Accordingly there are arrears in the amount of
$300 for the year 1976 and $825 for the year 1977
as at November 29, 1977.
In all likelihood the judgment debtor is also in
default for December 1977 and January 1978 and
will continue in default if not forced by appropri
ate remedies to make good his default.
The judgment debtor, after the decree nisi, con
tinued to reside in Edmonton, Alberta where he is
employed as a baker with Canada Safeway Ltd. at
a monthly wage of approximately $1,100.
The judgment creditor moved to Winnipeg,
Manitoba, with her infant child, of whom she had
been awarded custody and, as stated above,
maintenance.
On July 4, 1977 the decree nisi of the Alberta
Supreme Court was filed in the Court of Queen's
Bench for Manitoba in accordance with section 15
of the Divorce Act, R.S.C. 1970, c. D-8 which
reads:
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.
An order under section 10 or 11 of the Divorce
Act is an order for corollary relief. The order in
the decree nisi providing for maintenance for the
infant child is such an order.
The procedure of filing the decree nisi in the
Manitoba Queen's Bench seems to me to have
been an abortive step in that by doing so the
Alberta order becomes a Manitoba order and is
enforceable by Manitoba processes where the
Manitoba writ runs. But the judgment debtor is
not resident in and is not amenable to Manitoba
process nor is the garnishee. These remarks are
made on the assumption that appropriate recipro
cal enforcement of judgments legislation does not
subsist between Manitoba and Alberta.
Such reciprocal enforcement legislation does
exist but, for the purposes of this application, I do
not think that I am obliged to investigate its
mutual applicability and limitations but I shall
accept as accurate allegations in the supporting
affidavits to the present motion.
Having registered the Alberta order in the
Manitoba Court the judgment creditor thereupon
obtained what was described as a "Continuing
Garnishing Order" dated July 21, 1977 upon
application to the Prothonotary of the Court of
Queen's Bench in chambers under section 14 of
The Garnishment Act, R.S.M. 1970, c. G20.
Section 14(1) reads:
14 (1) Where a person obtains a court order
(a) for maintenance under The Wives' and Children's Main
tenance Act; or
(b) for alimony or maintenance; or
(c) for the maintenance and education of a child under The
Child Welfare Act; or
(d) registers a maintenance order to which The Reciprocal
Enforcement of Maintenance Orders Act applies;
and pursuant to that order or registration applies for and
obtains a garnishing order that is served on the employer of the
judgment debtor (in this section called the "garnishee"), the
garnishee shall deduct from the salary or wages of the judg
ment debtor then due, or thereafter accruing due, from time to
time, such amounts in accordance with the garnishing order,
and notwithstanding the provision of any other Act or rule,
remit those amounts to the Provincial Judges Court (Family
Division) or to such other person named in the garnishing
order, for as long as the judgment debtor remains in his employ
and the garnishing order remains in force.
That order directed the garnishee to deduct
from the wages of the judgment debtor the sum of
$75 being the arrears for one month and thereafter
the sum of $75 monthly.
A further garnishment order was obtained dated
August 2, 1977 ordering the garnishee to deduct
from debts due or accruing due the judgment
creditor up to the amount of $750 being the
arrears under the Alberta decree nisi to that date.
The solicitors for the judgment creditor then
placed the two garnishment orders so obtained in
the hands of the Attorney-General of Manitoba.
By letter dated November 3, 1977 the Attorney-
General of Manitoba forwarded material to the
Attorney General of Alberta under The Recipro
cal Enforcement of Maintenance Orders Act with
the request that the material be forwarded to the
appropriate Alberta Court for enforcement.
At the same time the Attorney-General of
Manitoba advised the solicitors for the judgment
creditor that "under The Reciprocal Enforcement
of Maintenance Orders Act we do not have au
thority to forward the garnishing Order for
enforcement but we are forwarding the mainte
nance Order for enforcement as to arrears."
I am not certain what "maintenance Order" was
sent to the Attorney General of Alberta for
enforcement. It may have been the decree nisi
dated December 1, 1975 issued by the Supreme
Court of Alberta as registered in the Manitoba
Court of Queen's Bench on July 4, 1977 or it may
have been the garnishment order issued by the
Queen's Bench on August 2, 1977 as to arrears
under the decree nisi in the amount of $750.
In paragraph 7 of the affidavit of Paul Victor
Walsh filed in support of the present motion the
affiant swears neither the garnishing order dated
July 21, 1977 or the garnishing order dated
August 2, 1977 were enforceable in the Province of
Alberta and in paragraph 8 it is sworn that the
Attorney-General of Manitoba had directed
enforcement proceedings to be begun in Alberta
presumably by the Attorney General of Alberta.
It would therefore appear more likely that the
Attorney General of Alberta was requested to
begin enforcement proceedings on the decree nisi
and not on the garnishment orders and that raises
the question of the necessity of invoking the recip
rocal enforcement of judgment legislation at all
unless the Alberta decree nisi is to be considered a
Manitoba court order for maintenance on registra
tion which is somewhat incongruous because it is
the Alberta decree nisi once removed which in
effect is being sought to be enforced in Alberta by
the Alberta courts and by the Alberta Attorney
General.
No matter what enforcement proceedings were
commenced by the Attorney General of Alberta, if
any, in paragraph 8 of the affidavit the affiant
swears that no monies whatsoever have been
received by the judgment creditor.
On December 23, 1977 the solicitors registered
a copy of the decree nisi granted by the Supreme
Court of Alberta on December 1, 1975 in the
registry office of the Federal Court of Canada in
Winnipeg, Manitoba in accordance with section 15
of the Divorce Act (supra).
Thus the order of the Supreme Court of Alberta
may be enforced by the processes of this Court.
As indicated at the outset the solicitors for the
judgment creditor have filed an ex parte notice of
motion dated January 17, 1978 requesting a "Con-
tinuing Garnishing Order" in the combined terms
as the two orders obtained in the Manitoba Court
of Queen's Bench dated July 21, 1977 and August
2, 1977 purportedly under our Rules 5 and 1900.
Rule 1900 is simply a recital of the processes
available in this Court to enforce an order or
judgment for the payment of money and included
amongst others, a writ of fieri facias and garnishee
proceedings.
Rule 5 is what is referred to as the "gap rule"
that is where any proceeding arises not provided
for by any Act of the Parliament of Canada or in
the Federal Court Rules then the procedure shall
be determined by analogy to other provisions of
the rules or to the practice or procedure in force
for similar proceedings in the courts of that prov
ince to which the subject of the proceedings most
particularly relate and, in my opinion, in this
instance that would be the Province of Alberta and
this despite the fact that the decree nisi was also
registered in Manitoba.
However Rule 5 does not avail the judgment
creditor because there is no gap.
Rule 1087 provides that an order of any other
superior court under sections 10 and 11 of the
Divorce Act may be registered pursuant to section
15 of that Act and on registration, as was done in
this instance, becomes an order of the Trial Divi
sion and implicitly enforceable as such which by
virtue of Rule 1900 includes garnishee proceed
ings.
Rule 2300 provides for garnishment proceedings
when the conditions precedent are present, as they
are in this instance. Then there may be an applica
tion, made ex parte, directed to the garnishee and
the judgment debtor to show cause why the debts
owing by the garnishee by the judgment debtor to
the judgment creditor should not be attached in
satisfaction thereof.
Assuming this is done there is no provision in
the Rules for the grant of a "continuing" garni
shee order such as provided for in section 14 of
The Garnishment Act of Manitoba. I have great
reservations whether the provision for a continuing
order in section 14 of that Act, which is a com
paratively recent innovation and commendable in
that it avoids monthly applications for the gar
nishee of wages, is a matter of practice or proce
dure but is rather substantive law.
What the solicitor for the judgment creditor
seeks to invoke or should seek to invoke is not Rule
5 but section 56 of the Federal Court Act, subsec
tion (1) of which reads:
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.
I am not concerned with reciprocal enforcement
of judgments legislation as such because the pro
cess of this Court runs throughout Canada.
What section 56(1) of the Federal Court Act
does provide is that the Court may issue process
against a person of the same tenor and effect as
may issue out of the court of the province where
the judgment or order is to be executed and that is
the Province of Alberta where both the judgment
debtor and the garnishee reside.
It has not been established to me that the Courts
of Alberta will issue a continuing garnishee order
in terms similar to an order under section 14 of the
Manitoba statute nor whether such an order would
issue on an ex parte application therefor both of
which are being asked of me.
Because it is the process of the Courts of Alber-
ta and the 'proceedings leading to the issuance of
that process that are, in actuality, the proceedings
and process sought to be invoked, because the law
of Alberta is the lex loci actus and the lex loci
solutionis it follows that the Courts of Alberta are
the most convenient forum and because the exer
cise of the authority conferred upon the Federal
Court by section 56(1) of the Federal Court Act to
issue a process of the same tenor and effect as may
issue out of the Courts of Alberta is discretionary I
decline to exercise that discretion in the circum
stances of the present application.
It follows that the ex parte motion is dismissed
and the garnishee order in the terms sought there
by will not issue.
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.