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Family Law Rules – Rule 28: Seizure and Sale

Angela Princewill

November 21, 2015

RULE 28:  SEIZURE AND SALE

ISSUE OF WRIT OF SEIZURE AND SALE

28. (1) The clerk shall issue a writ of seizure and sale (Form 28) if a recipient files,

(a) a request for a writ of seizure and sale (Form 28A); and

(b) a statement of money owed (subrules 26 (5) and (6)).  O. Reg. 114/99, r. 28 (1); O. Reg. 544/99, s. 13 (1).

ELECTRONIC FILING OF WRIT

(1.1) Subject to subrule (11), a writ of seizure and sale issued under subrule (1) may be filed with a sheriff electronically. O. Reg. 142/14, s. 12 (1).

ELECTRONIC FILING OF REQUEST, ISSUANCE OF WRIT

(1.2) Subject to subrule (11), a recipient may file a request for a writ of seizure and sale electronically, in which case,

(a) clause (1) (b) does not apply to the request;

(b) the writ shall be issued electronically; and

(c) the issued writ shall automatically be filed electronically with the sheriff specified in the writ. O. Reg. 142/14, s. 12 (1).

DEEMED ISSUANCE BY COURT

(1.3) A writ issued electronically is deemed to have been issued by the court. O. Reg. 142/14, s. 12 (1).

ERROR IN WRIT ISSUED ELECTRONICALLY

(1.4) If a person who obtained an electronically issued writ of seizure and sale discovers that the writ contains an error, the person may, no later than 5 p.m. eastern standard or daylight saving time, as the case may be, on the second day after the day on which the writ is considered under subrule (13) to have been filed with a sheriff, correct the error by using the software that was used for the issuance of the writ. O. Reg. 142/14, s. 12 (1).

STATUTORY DECLARATION UNDER THE FAMILY RESPONSIBILITY AND SUPPORT ARREARS ENFORCEMENT ACT, 1996

(2) The statutory declaration to sheriff mentioned in section 44 of the Family Responsibility and Support Arrears Enforcement Act, 1996 shall be in Form 28B.  O. Reg. 114/99, r. 28 (2).

STATUTORY DECLARATION IF ORDER CHANGED

(3) If a court changes a payment order that is being enforced by a writ of seizure and sale, a statutory declaration to sheriff (Form 28B) may be filed with the sheriff and once filed, it has the same effect as a declaration mentioned in subrule (2).  O. Reg. 114/99, r. 28 (3).

ELECTRONIC FILING

(3.1) A statutory declaration referred to in subrule (2) or (3) may be filed electronically. O. Reg. 142/14, s. 12 (1).

DURATION OF WRIT

(4) A writ of seizure and sale continues in effect until,

(a) the writ is withdrawn under subrule (6.5) or (7); or

(b) the court orders otherwise under subrule (8).  O. Reg. 114/99, r. 28 (4); O. Reg. 544/99, s. 13 (2); O. Reg. 142/14, s. 12 (2).

WRIT ISSUED UNDER FORMER RULES

(5) A writ directing the sheriff to seize and sell a payor’s property that was issued by the court under the rules that applied before these rules take effect has the same legal effect as a writ of seizure and sale issued under these rules, and does not expire except as subrule (4) provides.  O. Reg. 544/99, s. 13 (3).

NOTIFYING SHERIFF OF PAYMENT RECEIVED

(6) If a writ of seizure and sale has been filed with a sheriff,

(a) the recipient shall, on the sheriff’s request, provide a statutory declaration setting out details of all payments received by or on behalf of the recipient; and

(b) the sheriff shall update the writ accordingly.  O. Reg. 114/99, r. 28 (6).

MAY BE FILED ELECTRONICALLY

(6.1) Subject to subrule (11), the statutory declaration referred to in clause (6) (a) may be filed with the sheriff electronically. O. Reg. 142/14, s. 12 (3).

CHANGE OF ADDRESS

(6.2) If the address of the recipient or his or her lawyer changes after a writ has been filed with a sheriff, the recipient shall give written notice of the new address to the sheriff, and the sheriff shall update the writ accordingly. O. Reg. 142/14, s. 12 (3).

MAY BE FILED ELECTRONICALLY

(6.3) Subject to subrule (11), notice of the new address may be filed with the sheriff electronically. O. Reg. 142/14, s. 12 (3).

CONFIRMATION OF ELECTRONICALLY FILED WRIT

(6.4) In order to confirm whether a writ of seizure and sale filed with a sheriff electronically has been properly issued and filed, the sheriff may require the recipient to provide to the sheriff, in the manner and within the time the sheriff specifies, a statement of money owed (subrule 26 (5) or (6)). O. Reg. 142/14, s. 12 (3).

WITHDRAWAL BY SHERIFF

(6.5) The sheriff may withdraw an electronically filed writ of seizure and sale if,

(a) the sheriff determines that the writ was improperly issued or filed; or

(b) the recipient fails to comply with subrule (6.4). O. Reg. 142/14, s. 12 (3).

SAME

(6.6) A writ may be withdrawn under subrule (6.5) at any time during its enforcement. O. Reg. 142/14, s. 12 (3).

CORRECTIONS BY SHERIFF

(6.7) If the sheriff makes a determination that a writ of seizure and sale filed with the sheriff electronically was properly issued or filed but contains an error or otherwise differs from the order to which the writ relates, the sheriff may correct the writ to make it consistent with the order. O. Reg. 142/14, s. 12 (3).

NOTICE

(6.8) The sheriff shall give notice of a withdrawal under subrule (6.5) or a correction under subrule (6.7) to the recipient. O. Reg. 142/14, s. 12 (3).

WITHDRAWING WRIT

(7) The person who obtained a writ to enforce an order shall immediately withdraw it from every sheriff’s office where it has been filed if,

(a) the person no longer wants to enforce the order by a writ;

(b) in the case of a payment order, the payor’s obligation to make periodic payments under the order has ended and all other amounts owing under it have been paid; or

(c) in the case of any other order, the person against whom the writ was issued has obeyed the order.  O. Reg. 114/99, r. 28 (7).

SAME

(7.1) A writ may be withdrawn under subrule (7) by,

(a) giving written notice to the sheriff that the writ should be withdrawn; or

(b) subject to subrule (11), filing notice of a withdrawal of writ electronically. O. Reg. 142/14, s. 12 (3).

ORDER CHANGING, WITHDRAWING OR SUSPENDING WRIT

(8) The court may, on motion, make an order changing the terms of a writ, withdrawing it or temporarily suspending it, even if the writ was issued by another court in Ontario.  O. Reg. 114/99, r. 28 (8).

SERVICE OF ORDER

(9) The person making the motion, or another person named by the court, shall serve a copy of the order on,

(a) every sheriff in whose office the writ has been filed; and

(b) if the writ was issued by the court in another place, or by another court, on the clerk of the court in the other place or the clerk of the other court.  O. Reg. 114/99, r. 28 (9).

ELECTRONIC FILING OF CHANGES

(9.1) If the court makes an order under subrule (8) making any of the following changes to a writ that has been filed with a sheriff, the person required to serve a copy of the order under subrule (9) may, subject to subrule (11), file the changes to the writ with the sheriff electronically instead of serving a copy of the order on the sheriff under clause (9) (a):

1. The name of a party.

2. The recipient’s lawyer or other representative.

3. The amount owing under the writ. O. Reg. 142/14, s. 12 (3).

WRIT OF TEMPORARY SEIZURE OF PROPERTY

(10) The court may, on motion with special service (subrule 6 (3)), give permission to issue a writ of temporary seizure (Form 28C) directing the sheriff to take possession of and hold all or part of the land and other property of a person against whom an order has been made and to hold any income from the property until the writ is withdrawn or the court orders otherwise.  O. Reg. 114/99, r. 28 (10); O. Reg. 89/04, s. 11 (1).

LIMIT ON WHO MAY FILE ELECTRONICALLY

(11) The electronic filing and issuance of documents under this rule is only available for,

(a) lawyers;

(b) the Director of the Family Responsibility Office; and

(c) Ministers or bodies acting under the authority of an Act of Canada or Ontario. O. Reg. 142/14, s. 12 (4).

ELECTRONIC FILING, ISSUANCE — AUTHORIZED SOFTWARE

(12) If this rule permits or requires a document to be filed or issued electronically, the software authorized by the Ministry of the Attorney General for the purpose shall be used for the filing or issuance. O. Reg. 142/14, s. 12 (4).

DATE OF ELECTRONIC FILING, ISSUANCE

(13) The date on which a document that is filed or issued electronically under this rule is considered to have been filed or issued, as the case may be, is the date indicated for the document by the authorized software. O. Reg. 142/14, s. 12 (4).

ELECTRONIC FILING AND SIGNATURES, SWEARING

(14) The following requirements are deemed to have been met if a document is filed or issued under this rule electronically using the authorized software:

1. A requirement that the document be signed.

2. A requirement that the document be sworn or affirmed. O. Reg. 142/14, s. 12 (4).

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