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So you won in court…but how to collect?

May 11, 2022 by breakwateradmin

Aaron Duong is a business lawyer and debtor-creditor lawyer in Victoria, BC.

So, you had your day in court and walked away with a money judgment in hand. Great! As the feeling of vindication subsides, one question invariably arises: ok, now what?

After fighting a legal battle, it’s easy to forget that winning in court is only 50% of the war. What you’ve won is a piece of paper signed by a judge that confirms you’re owed a certain sum of money – and it’s now your job to collect. 

There are three primary methods to collect against a judgment debtor:

Registering your judgment at Land Titles

If you know that your judgment debtor (for simplicity, let’s call the debtor “Steve”) owns real estate, you can register your judgment against that property’s title. Once registered, you’ve put the world on notice that Steve owes you money – especially potential purchasers of his property, if Steve were to ever sell it. Typically, banks giving mortgages to purchasers require that any judgments registered against the property being sold be paid out in the process of the sale. So, Steve would likely have to pay out your judgment when he sells his property.

Pro: this method has a reasonably good chance of producing fruit.

Con: you’d likely be playing the long game; it could be years before Steve sells his property (or is forced to).

Seizing Personal Property

If you know that Steve owns big-ticket assets with substantial value, such as cars, boats, RVs/trailers, etc., you may be able to get a court order allowing you instruct a bailiff to seize those assets, which would then be sold at auction. The pot of money created by the seizure and sale would then be distributed among Steve’s creditors, including you.

Pro: again, this method has a reasonably good chance of getting at least partial payment on your judgment. You are also usually entitled to get paid back for the cost of the bailiff out of the sale proceeds.

Con: the vehicle(s) seized might not be worth much, and, there is a good chance that Steve borrowed money from a bank or other lender to purchase these assets in the first place. Those lenders (called secured creditors) get first priority over any sale proceeds, usually up to the amount owed to them by Steve. You only get what’s left over, which can often be far less than 100% of what you’re owed.

Garnishment

If you know where Steve works or banks, you can apply to the Supreme Court for a garnishing order. This is an order that allows you to grab some or all of Steve’s paycheque or bank account. A garnishing order is then served upon Steve’s employer, bank, or other entity that owes a debt to Steve. Your garnishing order would act to redirect some of the paycheque, bank account, or the money owed to Steve to the Court. Once that money is paid into court, you’d be able to apply to have it paid to you to satisfy some or all of your judgment.

Pro: a fairly efficient way of getting partially or fully paid if you know Steve has a decent paycheque or a decently funded bank account.

Con: you may be sharing that pot with other people who have also successfully sued Steve. It is also difficult or impossible to effectively garnish if you don’t know what precise branch of a bank Steve has an account with. Finally, you have to get a new order for every time you want to garnish – so if you’re garnishing Steve’s paycheque, you have to get a new order every time Steve gets paid. Annoying and costly.

Which Method to Pick?

Of course, each case is different and circumstances can vary wildly, which in turn means that some of the above methods may be more effective than others. And yes, depending on a debtor’s financial circumstances, sometimes none of the methods are effective. Post-judgment enforcement can be slow, complicated, and frustrating – especially if you discover that your long overdue debtor has, by circumstance or design, very few assets, or if you become embroiled in additional conflict with other creditors, all itching to get their piece of the debtor’s assets. We call a debtor with few assets and a paltry cash flow “judgment-proof”… this means, a debtor against whom a judgment is pretty much useless.

I’ve had a number of clients go through this process – some who came out at the end with more gray hairs, a lighter wallet, and emptier hands, even after winning in court. Several of them felt like they had no choice but to follow through with every possible enforcement step, having spent a small fortune getting their judgment in the first place.

The key concept, though, is this: be careful about how much money you spend taking chances at recovering money owed to you. For example, spending $1,000 to take a 50% shot at recovering a debt of $1,000 is financially irrational.

Speaking with a lawyer if you’re unsure what to do next, or if you’re wondering whether your efforts are going to bear fruit, could save you a potentially huge amount of hassle and headache. And although we are not magicians who can make money appear out of thin air (we’d be in the wrong line of work if so), there are context-dependent mechanisms that can sometimes extract value from an otherwise “judgment-proof” debtor. We can also let you know if a judgment is financially worth pursuing, because sometimes, they just aren’t, and you’re better off knowing that before you start sinking time and money into it.

Filed Under: On Litigation - a Litigator's Blog

Shared Custody and Social Distancing: Staying Connected, Apart

March 24, 2020 by breakwateradmin

Guest blogger Rhiannon Webb is a relationship therapist & divorce coach in Victoria, BC where she works in private practice. Find out more at

http://divorcecoachcanada.com
http://ravencoastwellness.com

All of a sudden we find ourselves living in an unprecedented era where the whole world is facing a novel virus, and many of us are turning to important protocols like extreme distancing. 

With factors such as blended families, high-risk work environments, or particularly vulnerable people, figuring out the best plan for how to minimize physical social contact may involve the coordination of multiple households and some difficult decisions, particularly if you’re co-parenting after separation. If you find yourself in a circumstance where your child is in isolation in one home, you may be parenting from a distance. As we can all understand as parents, sometimes decisions that are right aren’t easy.

There are some important plans to make if you find yourself separated from your child during this pandemic, which will help minimize the stress your child may feel about this change, and which will help you stay connected at a distance.

First, you need to talk with your child about what will be different so that they feel in the loop, and know what to expect. Being upfront about this can be a big relief to kids, and how you go about it will depend on their age. If you’re feeling uncertain about how to have this conversation in a way that protects them from unnecessary anxiety, this is a great time to reach out for a conversation with a professional and create a plan together.

Next, you need to figure out exactly what comes next. If you’re apart for an extended period, what can you do to create meaningful connection? Depending on the individual child, these suggestions will vary, but I hope that the following list will serve as a jumping off point to get your ideas flowing. Most of these suggestions should work for children age 5 and over.

Play a board game over video!

Perhaps there are already duplicate versions of some games in both of the child’s homes, but if not, this is the perfect use for online retailers. You can buy two copies of a game, get one delivered to your house and the other to your child, and then you can play them together. The following are some games that play well over video:

  • Guess Who?
  • Boggle
  • Kingdomino
  • Wits and Wagers
  • Chess/Checkers
  • Mastermind
  • Qwirkle
  • Codenames
  • Say Anything
  • Azul
  • Hedbanz
  • Tenzi
  • Just One
  • Uno Dare

Play interactive games over video!

Just sitting and talking can sometimes work for kids, but chances are that the quality of your video visits will be higher if you have something to do. Here are some interactive games to try:

  • Charades (see this website for heaps of ideas for kid-friendly charades https://kidactivities.net/charades-ideas-for-kids/)
  • Play Mad Libs (there are countless resources online, and here’s a kid-friendly version with lots of downloadable pages https://www.squiglysplayhouse.com/WritingCorner/StoryBuilder/)
  • You can also make up silly stories together (or scary stories, or dream holiday stories) and just enjoy them while you tell them, or write them down to enjoy again another time.

Other video visit ideas –

Sometimes just sharing an experience has a lot of meaning, and having something to do while you’re together-not-together can offer a taste of the downtime you’ll be missing with each other. 

  • Check out https://www.netflixparty.com/ for a chrome extension that allows you to sync your viewing. Each of you can sit down with a bowl of popcorn and watch a movie together, then chat about your favourite parts.
  • Grab a favourite childhood novel (The Hobbit? Chronicles of Narnia? Harry Potter?) and read it chapter by chapter until you’ve enjoyed a whole novel together. This can be a treasured activity for both of you, and you can add another special layer by planning for your kiddo to sit down with a mug of hot chocolate to enjoy during your reading time.
  • A childhood classic is sculpting with clay or playdough. (It’s also a great regulator for the nervous system!) The two of you can sit down together over video and sculpt while you talk. You could play guess-the-sculpture, work on a theme together, or just enjoy the art at the same time. This could also provide an activity for your child ahead of time, where they could try making playdough from scratch at home! https://theimaginationtree.com/best-ever-no-cook-play-dough-recipe/
  • Have a special skill? Teach your child over video! Knitting, sketching, making popsicle stick castles, or whittling wood (if age appropriate) are just a few examples. Maybe the supplies are already available in the child’s home, maybe your co-parent could get ahold of them, or maybe any necessary supplies could be a fun care package that arrives in the mail.
  • Schedule video visits where you share a meal together and be nourished in more ways than one. It doesn’t have to be the same food, but sitting down together via video gives you that chance to share something you’re used to doing together when you’re in the same place. 

Other ways to connect –

Start a tradition of telling each other new jokes, and send lots of photos and little video clips.

The bottom line is all about keeping your child at the centre. Perhaps you’re accustomed to co-parenting pretty separately, and if your child is young and still relies on their parent to facilitate communication with the other, you and your co-parent will need to adjust to having more contact. Bigger kids may be more able to coordinate things on their own, but it’s still critically important that both parents are warm and encouraging about the child’s need and desire to get lots of connection time with a parent that they aren’t seeing in person. What’s important is that your child gets plenty of quality time, connection, and gets plenty of evidence that they’re on your mind, even if they’re not in your house for a while.

These ideas can work well at any time if a parent is travelling, or for grandparents and other family members who may be cut off from one another right now.

We’re reinventing a number of things about how we live our lives, and my hope for you is that when this has passed, you and your child will have fond memories to look back on of how you stayed apart, together.

—————————————————————

If you’re looking for some resources to help you talk with your children about coronavirus generally, check out this link, and don’t forget that mental health professionals everywhere are still working via video and phone to support individuals and families during this time. 

https://psychcentral.com/blog/talking-to-children-about-covid-19-reducing-hysteria-during-a-global-emergency/

Filed Under: Uncategorized

A Primer on Estate Documents

March 18, 2020 by breakwateradmin

I’m getting a lot of calls right now from people who are anxious about getting their Wills, Powers of Attorney, and/or Representation Agreements done. They’re worried that Covid-19 and the societal quarantine will prevent them from coming in, giving instructions, and executing the documents in front of a lawyer.

Even before Covid-19, I heard from a lot of people how stressful it is to have an unfinished or nonexistent estate plan hanging over their heads. It doesn’t feel good under normal circumstances, and it sure feels worse when people are genuinely anxious that they will become sick and possibly incapacitated.

So, look, first off, please don’t panic. You don’t need to rush off and get your estate documents done because you’re convinced of your imminent demise. You are very likely to be just fine.

Second, please practice social distancing. Seriously. Don’t go out except if absolutely necessary. This will keep you, and our communities, the safest.

Third, if you’re anxious about this, and want to get your affairs together, we’ve got you. Yes, we can do your Will, your Power of Attorney, and/or your Representation Agreement, remotely. We can “see” you within a day or two. We won’t see you in person, because we’re practicing social distancing. We’ve been doing remote legal work for almost a decade here. We are experts at doing video interviews and in executing documents remotely for clients all over the Province. We are completely cloud-based, and we support a slew of remote and video technologies to serve you, wherever you are. We do FaceTime, Skype, WhatsApp video, Zoom, and we’re willing to try anything else you want to throw at us.

We already have virtual offices in Terrace and in Vancouver, as well as our offices in Victoria, however wherever you are, we can do your work. Give us a call.

What are these documents? In layperson terms, a Will is a document that says (with legal, binding authority) what you want done with your property after you pass away. For those of us with kids, it can also state who shall be the guardian(s) of your kids after you pass away. A Will puts someone in charge (the Executor) of executing, after your death, the instructions you have left in your Will. A Will only has power once you’re deceased.

Because a Will only has power after death, you need different documents to give someone authority to manage your property while you’re still alive but not able to manage things yourself. Maybe you’re too sick, or you’ve had an accident, or you’re suffering from a mental illness. There are two documents that you can execute that will put someone else in charge of managing and protecting your property, and even protecting yourself, while you’re alive but not able to do things yourself.

The first document is a Power of Attorney. This gives a person authority to manage your property. They can pay your rent, or mortgage, they could sell your house if need be, they can take care of your bills, your investment account, or move all your belongings into storage, or any number of other things. It is very stress-relieving to know that, if you become sick or incapacitated, there will be someone there to take charge for you.

The second document is a Representation Agreement. This puts someone in charge of making health care decisions about you when you’re not able to yourself. They could consent, or refuse consent, to surgery, or arrange for you to live in a care home, or even make the call about whether to leave you on, or take you off, life support. In a Representation Agreement, you get to say in advance what your wishes are, like whether you want to be taken off life support, or what your wishes are generally about different types of health care treatment and care. It’s a great way of making sure in advance that you’re taken care of exactly the way you want if the time comes when you’re not able to speak or make your wishes known, because you’re too ill.

If you die without a Will, you leave your family or friends behind with a pretty big mess to deal with, right at the time when they’re dealing with their loss of someone they love. Even if you don’t have any significant property or any kids, you should have a Will. If you don’t have one, then nobody can enter your house to pack up your stuff, nobody can access your bank accounts or investment accounts to pay your mortgage or bills, and nobody can make sure your belongings end up in the hands of who you want to have them (that is, except with an expensive and stressful process to obtain a court order. Who wants to go to court, having to spend their own personal money to do so, when they’re mourning the loss of a loved one?).

I strongly recommend to all of my clients that everyone have all three documents, so that you’re completely covered whether you’re still alive but incapacitated, or, you’ve passed on.

If you’d like us to do up your Will, Power of Attorney, and/or Representation Agreement, we will meet with you over video and take your instructions. We will work with you to get them executed as quickly as humanly possible. Give us a call!

Filed Under: Uncategorized

On Going Back to Your Maiden Name

March 5, 2020 by breakwateradmin

Jo McFetridge is a lawyer in Victoria B.C. regularly practicing family law.

I repeatedly come across clients who have gone to a lot of time, trouble, and expense to do a legal name change, in order to go back to their maiden name.

Stop right there. I’m going to save you some money and hassle.

If you were, or still are, legally married to someone, you do NOT need to take any legal action whatsoever to go back to your maiden name, or indeed, any previous married name.

(That is, unless you did a legal name change in the past. If you did that, this article probably isn’t for you. Phone me instead.)

Here are some things you don’t need:

  1. To start a court action for a legal name change;
  2. To use that part of the standard BC divorce paperwork that asks you if you want to change your name. That’s not for you. That’s for people who want to change their name to something entirely different to their married and to their maiden names. Like if you wanted to change your name to Fuzzy Dingo or Rock Star, or possibly something less flippant; or
  3. Anyone else’s permission. It’s your name (if you want it). It didn’t automatically stop being your name when you got married and started using another one.

You can use your maiden name whenever you want. You can use it at the same time as you use your married name. You can use your maiden name, your married name and even a previous married name, if that’s what you want.

It’s as easy to go back to your maiden name as it was to start using your married name. Remember how you went to the ICBC office with a copy of your marriage certificate, and then they gave you identification in your married name? Yep. Just take your birth certificate into the ICBC office, and get them to issue you your identification cards in your maiden name.

This applies to all legally married (past or present) people, whether men, women, non-binary, trans, genderqueer, and however you identify.

I work with lots of members of the queer community, and I find there’s quite a bit of misconception among us with respect to marriage and divorce. The great news is that, for once, the same rules apply to everyone:

  1. Just like heterosexual couples, you are entitled to use your partner’s last name after you get married, right away, and no matter if you’re male, female, non-binary, transgender or genderqueer or anything else;
  2. You do NOT need a legal name change to start using your partner’s last name, provided you did get legally married to them;
  3. You can get new identification issued to you in your married name as soon as you’re married; and
  4. As per the above, if you don’t want to use your married name anymore, whether or not you’ve separated from or are still with your partner, you can just go back to using your maiden name anytime you want.

Any questions, give me a call. Otherwise: you’re welcome!

note: this blog isn’t legal advice. Don’t ever take legal advice from a blog: phone a lawyer and get actual legal advice. The law and practice around this topic might change after the post is published.

Jo McFetridge is a lawyer in Victoria, B.C., regularly practicing family law.

Filed Under: Family Law, On Litigation - a Litigator's Blog

On Not Accidentally Purchasing an Air BnB Property Subject to GST

July 12, 2018 by breakwateradmin

An issue I ran into recently is, what if you buy a property that was being used by the seller as an Air BnB?

I’m not a tax lawyer, but, I did out of curiosity wade through copious volumes of Canada Revenue Agency publications, the Excise Tax Act and several articles. As typical with CRA publications, which don’t seem to be written for regular human beings to consume, they left me with a lot of questions, and a refreshed appreciation for how many potential landmines there can be in property transactions.

One thing was abundantly clear, and that is: if you are going to buy any residential property, you need to make pretty extensive inquiries of the sellers to make sure that the sale is not subject to GST.

Air BnBs are stealthy ninjas. Any ordinary looking single family dwelling, or condo, could have been operated as an Air BnB by its owner. You, as purchaser, are liable for GST unless a sale is exempt… a property used chiefly for short term rentals, where the seller was claiming GST input tax credits in respect of the property, is almost certainly subject to GST. There are other ways the property could be subject to GST. You could end up footing a stiff GST bill if you fail to make the right inquiries about the sellers’ use of and relationship with the property, and fail to protect yourself in the sale contract, regardless of how you intend to use the home.

You could end up paying GST on a $1M home (ouch!) that you intended to just use as your principal residence, just by not realizing it was an Air BnB. That’s a $50,000 mistake.

Caveat emptor, or, buyer beware: instruct your realtor to make the right inquiries, and protect yourself in the sale contract accordingly. Ideally, engage your lawyer before any conditions on the contract are removed.

Jo McFetridge is a lawyer in Victoria, B.C.

Filed Under: Postcards From the Trenches Tagged With: #jomcfetridge, #PFT, #protips

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Recent Posts

  • So you won in court…but how to collect?
  • Shared Custody and Social Distancing: Staying Connected, Apart
  • A Primer on Estate Documents
  • On Going Back to Your Maiden Name
  • On Not Accidentally Purchasing an Air BnB Property Subject to GST

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