Civil Procedure Rules of Nova Scotia  
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Part 16 - Costs, Order, and Enforcement

Rule 79 - Enforcement by Execution Order

Definitions
79.01   In this Rule,
    “judgment” means an order, or a part of an order, providing for payment or recovery of money including costs;
    "sheriff” includes a person who is not a sheriff but is designated in an execution order granted by a judge to carry out the order.
       
Scope of Rule 79
79.02   This Rule provides for each of the following:
   
(a)
an execution order to enforce an order for the payment or recovery of money;
   
(b)
a periodic execution order to enforce an order for regular payments of money in the future;
   
(c)
discovery of the judgment debtor and others in aid of recovery under an execution order or periodic execution order.
       
Judgment binding land
79.03 (1) A person who obtains a judgment and wishes to bind land under the Land Registration Act may deliver to the prothonotary a draft document that is entitled “Judgment Certified for Recording Under the Land Registration Act” and that conforms with Section 67 of the Act.
  (2) A prothonotary or judge who is satisfied that a judgment debt is paid in full or otherwise extinguished may provide a release of judgment under Section 66 of the Act.
       
Judgment binding moveable
79.04   A person who obtains a judgment and wishes to bind a moveable under the Creditors’ Relief Act and the Personal Property Security Act may deliver to the prothonotary a draft document that is entitled “Notice of Judgment” and that conforms with Section 2A of the Creditors’ Relief Act.
       
Execution order
79.05 (1) A judgment creditor may obtain an execution order by delivering to the office of the prothonotary a draft execution order that conforms with this Rule, or a variation permitted by a judge, no more than five years after the date of the judgment.
  (2) A judge may permit a person to make a motion to the prothonotary for an execution order more than five years after the date of the judgment.
  (3) A prothonotary may require a person who obtains permission, and then delays making the motion for the execution order, to seek fresh permission.
  (4) A motion for permission may be made ex parte.
       
Exceptions
79.06 (1) A prothonotary may not issue an execution order in any of the following circumstances, unless a judge permits:
   
(a)
the judgment debtor is deceased;
   
(b)
enforcement of the judgment is stayed by an order, or by operation of law;
   
(c)
the judgment debtor makes an assignment in bankruptcy, a receiving order is made against the judgment debtor, or the judgment debtor otherwise becomes bankrupt, and there is no order declaring that the judgment debt is not stayed or discharged;
   
(d)
the order for payment, or recovery, of money is subject to the fulfilment of a condition that the judgment debtor says has not been fulfilled;
   
(e)
a change in parties, or the status of a party, causes the judgment creditor to cease to be entitled to enforcement or the judgment debtor to cease to be liable.
  (2) A judgment debtor may request the prothonotary rescind an execution order that was issued in one of the circumstances referred to in Rule 79.06(1) without the permission of a judge.
  (3) A prothonotary may refer a motion for an execution order to a judge.
       
Parties
79.07   An execution order may be issued against any judgment debtor, whether or not an execution order is sought against another judgment debtor liable for the same amount or judgment is sought against another party claimed to be liable for the same amount.
       
Attachment of debt or other obligation
79.08 (1) A person to whom an execution order is delivered and who is, or will become, obligated to pay a debt or other liquidable liability to the judgment debtor must make the payment to the sheriff up to the amount of the execution order.
  (2) An execution order does not attach to a debt or other liability owed to the judgment debtor as a trustee for another person.
  (3) Unless a judge orders otherwise, fifteen percent of a judgment debtor’s gross wages are payable to the sheriff under an execution order, the rest of the judgment debtor’s wages are exempt from the execution, and nothing is payable that reduces the judgment debtor’s net wages, after deduction of amounts required by law to be deducted, below the applicable of the following minimums:
   
(a)
$450 a week for a judgment debtor who supports a dependant, as defined in the Income Tax Act (Canada);
   
(b)
$330 a week for any other judgment debtor.
  (4) An employer may not pay exempt wages to the sheriff under an execution order.
  (5) A deposit-taking corporation must not pay to the sheriff any part of a balance owing to a judgment debtor that, to the knowledge of a person in charge of the account, came from either of the following sources at any time, and the deposittaking corporation remains liable to the judgment debtor for an amount paid in violation of this Rule:
   
(a)
a portion of wages that are exempt under Rule 79.08(3);
   
(b)
income, such as income assistance or a Canada Pension Plan payment, that is exempt from execution under legislation.
  (6) The sheriff may make a calculation of the amount to be paid under Rule 79.08(3), and the deposit-taking corporation may rely on the calculation.
  (7) A payment made in compliance with an execution order discharges the payor’s liability to the judgment debtor to the extent of the payment, and a payment made to a judgment debtor contrary to an execution order, terms agreed to by the sheriff, or terms ordered by a judge does not discharge the liability.
       
Judgment debtor’s joint account
79.09 (1) A judgment debtor who is a joint account holder, or to whom money is otherwise owed jointly with another person, is presumed to be entitled to an equal share of the joint account, or other joint obligation, unless an interested person proves otherwise.
  (2) The equal share must be calculated by dividing the amount of the joint account, or other joint obligation, by the number of joint account holders or joint obligees.
  (3) A deposit-taking corporation to whom an execution order is delivered must not honour a demand, other than the execution order itself, on a joint account of which the judgment debtor is one of the joint account holders until the interest of the judgment debtor is established in accordance with this Rule 79.09.
  (4) A person may make a motion for an order estimating the maximum interest of a judgment debtor in a joint account and permitting some or all demands to be honoured against the balance.
  (5) The deposit-taking corporation must prepare a written notice of an execution against a joint account, cause the notice to be delivered to the address of the joint account holder showing on the corporation’s records, provide a copy to the sheriff and the judgment creditor, and advise the sheriff and the judgment creditor when the notice is delivered to all account holders.
  (6) The notice of execution against a joint account may be delivered in the way statements or notices about the account are delivered and, if the notice is mailed, it is taken to be delivered five days after the day it is delivered to Canada Post.
  (7) The deposit-taking corporation must pay the equal share to the sheriff, unless an interested person files a notice of motion for an order determining the judgment debtor's interest no more than ten days after the day the notice of execution against the joint account is delivered to all account holders.
       
Content of notice to joint account holder
79.10 (1) A notice given by a deposit-taking corporation to a joint account holder must contain the standard heading, be entitled “Notice of Execution Against Joint Account”, be dated and signed on behalf of the corporation, be addressed to the judgment creditor and each joint account holder, have a copy of the execution order attached, and include all of the following:
   
(a)
a reference to the name and address of each joint account holder, the account number, and the balance;
   
(b)
a notice that a copy of the attached execution order was delivered to the corporation;
   
(c)
a statement that the judgment debtor is presumed to be entitled to an equal share of the account, unless an interested person proves otherwise;
   
(d)
a statement that the presumed share will be paid from the account to the sheriff unless, no more than ten days after the day the notice is delivered, the person to whom it is delivered files and delivers to the corporation, the judgment creditor, the sheriff, and the other joint account holders, a notice of motion and supporting affidavit for an order determining the judgment debtor’s interest, or lack of interest, in the account;
   
(e)
a statement that the corporation will refuse a withdrawal from, and will not honour a demand on, the account until the equal share is made, a judge permits withdrawals and deposits, or, the judgment debtor’s interest is determined by order;
   
(f)
a designation of an address for delivery of documents to the deposit-taking corporation;
   
(g)
an acknowledgement of the effect of delivery to the designated address and a statement that further contact information is available from the prothonotary.
  (2) The notice of execution against joint account may be in Form 79.10.
       
Enforcement against partner or partnership
79.11 (1) A judgment against a partner named individually under Rule 35.14 of Rule 35 - Parties may not be enforced against the partnership assets, unless a judge determines the extent of the judgment debtor’s interest in the assets of the partnership and permits enforcement to that extent.
  (2) A judgment against a partnership named by firm name may not be enforced against non-partnership assets of a member of the partnership, unless a judge who is satisfied on all of the following grants an order for enforcement against the assets of the member:
   
(a)
the person against whose assets judgment is sought to be enforced is, or was, a member of the partnership;
   
(b)
the member, or former member, is personally liable on the claim made against the partnership for which judgment is recovered;
   
(c)
the judgment creditor delivered a written notice to the member, or former member, describing the claim and stating that a judgment on the claim may be enforced against members of the partnership individually;
   
(d)
the judgment creditor delivered the notice of possible claim against members to the member, or former member, within a reasonable time.
  (3) An order for enforcement granted by a judge against a partnership or a member may be substantially in the form of an execution order under this Rule 79, or a receivership order under Rule 73 - Receiver.
       
Content of execution order (amount)
79.12 (1) An execution order must provide that the order is for recovery of the judgment amount and other charges showing on an attached statement of amount for execution.
  (2) A statement of amount for execution must be divided into the following three parts:
   
(a)
Part 1 - Judgment Amount;
   
(b)
Part 2 - Total Due to Creditor;
   
(c)
Part 3 - Further Charges and Credits.
  (3) Part 1 - Judgment Amount must contain each of the following subtitles and show the following amounts:
   
(a)
judgment debt - the total amount allowed by the order for payment or recovery of money including costs and pre-judgment interest;
   
(b)
credits - all credits due to the judgment debtor including a payment made, recovery from money paid into court, or an amount realized on security;
   
(c)
judgment amount - the total of the judgment debt less credits.
  (4) Part 2 - Total Due to Creditor must contain each of the following subtitles and show the following amounts:
   
(a)
registration expenses - the amount paid for recording and registering judgments under the Land Registration Act, the Creditors’ Relief Act, and the Personal Property Security Act plus disbursements expended for these purposes;
   
(b)
judgment interest - the amount of interest allowed by the Interest on Judgments Act from the date of the order for payment or recovery of money to the date of the execution order, or “nil” if the dates are the same;
   
(c)
judgment amount - taken from Part 1;
   
(d)
total due to creditor - totalling the expenses, interest, and judgment amount.
  (5) Part 3 - Further Charges and Credits must contain each of the following subtitles, with the amount left blank for insertion of the following amounts by the sheriff:
   
(a)
sheriff’s fees and expenses - fees due to the sheriff calculated by reference to Schedule “B” of the Costs and Fees Act and regulations under that Act and all expenses incurred by the sheriff, or on behalf of the sheriff, to carry out the order;
   
(b)
further judgment interest - calculated from the date of the execution order to the date of return or satisfaction;
   
(c)
further credits - the total of all credits due to the judgment debtor after the date of the execution order;
   
(d)
balance - to be calculated to the date of the return or, if the order is satisfied, stated as “nil”.
  (6) The execution order may not be enforced for an amount greater than the amounts stated in the statement or superceding statement.
       
Content of execution order (sale of land)
79.13   An execution order may authorize the sheriff to take possession of land to be sold in accordance with the Sale of Land Under Execution Act.
       
Content of execution order (liquidation of other property)
79.14 (1) An execution order may authorize the sheriff to seize, otherwise take control of, and accept as a receiver property in which the judgment debtor has an interest including all of the following, but not including property that is exempt from execution:
   
(a)
a moveable;
   
(b)
currency;
   
(c)
a share, bond, debenture, or other security;
   
(d)
a legacy;
   
(e)
a debt, rent, wages, or other demand due or accruing due at any time.
  (2) The order may authorize the sheriff to seize the property, or otherwise take control of it, from the judgment debtor or any other person, and to come on land, open a building, take control of a moveable, and break a lock or other barrier to effect the seizure.
  (3) The order may authorize the sheriff to cause a copy of the execution order to be delivered to a person who has control of a moveable the sheriff cannot conveniently seize, or to a person who is or may become liable to make a payment to the judgment debtor, and provide that the moveable is taken to be seized and the debt to be attached when the copy is delivered.
  (4) The order may provide that the person who receives a copy of the order is released from liability to make a payment to, or hold a moveable on behalf of, the judgment debtor when any of the following occurs:
   
(a)
the person makes the payment to the sheriff;
   
(b)
the sheriff seizes the moveable, or sells the moveable without a seizure;
   
(c)
the person complies with terms for payment, seizure, or sale agreed to by the sheriff or set by further order.
  (5) The order must specifically exclude exempted wages from the amount to be paid from the judgment debtor’s wages.
  (6) The order may authorize the sheriff to pay all reasonable expenses incurred to carry out the order.
  (7) The order may provide that the sheriff need not seize property before the sheriff receives an advance from, or agrees to terms with, the judgment creditor for the expenses of seizure, storage, protection, and sale.
       
Content of execution order (injunctions)
79.15   An execution order may require a judgment debtor and any person who has control of property in which the judgment debtor has an interest or who is or becomes obligated to pay a debt or other liquidable demand to the judgment debtor to do any of the following:
   
(a)
refrain from giving up control of the property or pay the debt or other demand except as permitted by the sheriff, the execution order, or another order;
   
(b)
provide the sheriff with access to property and not to obstruct seizure;
   
(c)
pay a debt or other demand to the sheriff, unless the sheriff directs or the order provides otherwise;
   
(d)
comply with a direction by the sheriff to liquidate a liquidable share, bond, debenture, or other security;
   
(e)
pay wages, or wages on deposit, to the sheriff in accordance with Rule 79.08;
   
(f)
pay funds in a joint account in accordance with Rule 79.09.
   
(g)
refrain from terminating the employment of, demoting, reducing the wages of, or otherwise penalizing the judgment debtor by reason of the execution order;
   
(h)
fully answer any question asked by the sheriff about the property, debt, or other demand.
       
Content of execution order (duties of sheriff and directions)
79.16 (1) In addition to the duties under the Creditor's Relief Act, an execution order may require the sheriff to do any of the following:
   
(a)
cause a copy of the execution order to be delivered to a person from whom property is seized, personally if the person is present when the seizure is made or, otherwise, by registered mail to the person's last known address;
   
(b)
cause a copy of the execution order to be delivered personally to a person who may be, or become, liable to pay a debt or other liquidable obligation to the judgment debtor;
   
(c)
immediately following a seizure, prepare an inventory of the property seized and include an estimate of the value of each item;
   
(d)
sell the property by public auction, or by another method authorized by a further order;
   
(e)
cause the sale of the seized property to be advertised;
   
(f)
seize no more property than the sheriff estimates is sufficient to fully satisfy the amount of the execution order and any other execution order against the same judgment debtor;
   
(g)
pay money, or deliver property, not required to satisfy an execution to the judgment debtor, unless it is appropriate to make a motion under Rule 46 - Payment into Court or Rule 76 - Interpleader.
  (2) An execution order may authorize the sheriff to make a motion to a judge for directions.
  (3) A sheriff who seeks directions may be represented by counsel or act on the sheriff’s own behalf.
       
Form of execution order
79.17 (1) An execution order must conform with this Rule 79, contain one of the following headings, state the name and last known address of the judgment debtor, be issued by the prothonotary, and have a statement of amount for execution attached:
   
(a)
the standard heading in the proceeding in which the judgment was issued;
   
(b)
the heading in the notice of application, or ex parte application, for registration under the Reciprocal Enforcement of Judgments Act, for an execution order to enforce a judgment registered in that manner;
   
(c)
the heading in the ex parte application or notice of application for any other execution order to enforce the order of another court or tribunal, followed by the style used by the other court or tribunal.
  (2) The execution order may be in Form 79.17A, and the statement of amount for execution may be in
Form 79.17B.
       
Periodic execution order
79.18 (1) A party who obtains an order for periodic payment of money may make a motion to the prothonotary for a periodic execution order enforceable against money to be paid at regular intervals to the judgment debtor.
  (2) A periodic execution order may be issued in addition to an execution order.
  (3) A person to whom a periodic execution order is delivered and who is, or becomes, obligated to pay money at regular intervals to the judgment debtor must pay the money to the sheriff except for exempt amounts.
  (4) A periodic execution order does not apply to a payment made to the judgment debtor as a trustee for another person.
  (5) Wages in the amounts referred to in Rule 79.08 are exempted from execution under a periodic execution order, unless the order is certified to be for family maintenance or support.
  (6) A periodic execution order for payment of family maintenance or support that is in arrears may include an additional twenty-five percent to be applied against the arrears.
  (7) A sheriff who receives more than enough to cover the amount of a periodic execution order, sheriff's fees and expenses, and any balance owing on an execution order, may pay the excess to the judgment debtor.
       
Content of periodic execution order
79.19 (1) A periodic execution order must contain one of the standard headings required for an execution order, be entitled ?Periodic Execution Order”, be issued by the prothonotary, and include all of the following:
   
(a)
a statement showing the name and address of the judgment debtor;
   
(b)
statements showing the amount ordered to be paid periodically, when the amount comes due, and the termination event or date if there is one;
   
(c)
a certificate of whether the order is for family maintenance or support;
   
(d)
if the order is also for the payment of arrears of family maintenance or support, a statement of the amount in arrears;
   
(e)
an injunction requiring a person to whom a copy of the order is delivered and who is or becomes periodically obligated to the judgment debtor to pay, out of the periodic obligation, the amount required by the order;
   
(f)
a requirement to pay the certified amount of the periodic payment or, if the order is certified to include arrears of family maintenance or support, the periodic payment plus, until the arrears are paid, another twenty-five percent;
   
(g)
a statement of the amount of wages exempt from execution;
   
(h)
a notice that failure to comply may be punished under Rule 89 - Contempt and that payment to the judgment debtor in contravention of the periodic execution order does not discharge the liability;
   
(i)
a statement of when the order expires.
  (2) The periodic execution order may be in Form 79.19.
       
Return of execution order
79.20 (1) A sheriff who has no information on a source for recovery, or further recovery, under an execution order may return the order to the judgment creditor with a report of any recovery realized under the order.
  (2) The judgment creditor may deliver the returned order to the prothonotary, with any report by the sheriff, and request a superceding execution order.
       
Duplicate and superceding execution orders
79.21 (1) A prothonotary may issue duplicate execution orders for delivery to more than one sheriff.
  (2) A prothonotary may issue a superceding execution order with a new statement of amount for execution to correct an error, or to bring the amount up-to-date when an execution order is returned by the sheriff.
  (3) A superceding execution order may be in the same form as an execution order, except it must be entitled "Execution Order Superceding Order Dated [date]”.
       
Stay and expiry of execution order
79.22 (1) A judge may stay enforcement of an execution order or a periodic execution order, conditionally or unconditionally, and on any terms the judge sees fit.
  (2) A judgment debtor who relies on an asset, such as invested funds, for regular support of the judgment debtor or the debtor’s dependants may make a motion to stay enforcement against such part of the asset, or such part of income paid periodically from the asset, as is needed for the regular support of the judgment debtor or the debtor’s dependants.
  (3) A judge who stays enforcement against an asset relied on for regular support may consider limiting the stay to the amount by which wages are exempt from execution.
  (4) An execution order and a superceding execution order expire five years after the date the order is issued, unless a judge extends the period.
  (5) A periodic execution order expires when the periodic obligation ends.
  (6) A property interest obtained by operation of an execution order or a superceding execution order is not affected by the expiry of the order.
       
Discovery of debtor in aid of execution
79.23 (1) A judgment creditor who provides the representations required by Rule 79.23(2) may request that the prothonotary issue a discovery subpoena in aid of execution addressed to any of the following persons:
   
(a)
a judgment debtor who is an individual;
   
(b)
a person who holds office in, manages all or part of the business of, or is a director of a corporate judgment debtor;
   
(c)
if a corporate judgment debtor ceases to have any officer, manager, or director, each person who last held office in, managed, or was a director of the corporation.
  (2) A judgment creditor who makes a motion for a discovery subpoena in aid of execution must attach to the draft subpoena both of the following representations:
   
(a)
that the person to whom the subpoena is addressed is the judgment debtor, that the person is an officer, manager, or director of the judgment debtor, or that there is no officer, manager, or director and the person is a former officer, manager, or director.
   
(b)
that the discovery is necessary for determining whether there are assets available for execution, to locate assets for execution, or to identify a debt or other liquidable obligation for attachment and execution.
  (3) The subpoena must contain the standard heading, be entitled ?Discovery Subpoena in Aid of Execution”, be issued by the prothonotary, and include all of the following:
   
(a)
the name of the witness and of the community in which the witness resides;
   
(b)
a description of the judgment including the names of the judgment creditor and debtor, the date of the judgment, and the amount;
   
(c)
requirements that the judgment debtor answer questions properly asked and bring, or provide access to, described documents, electronic information, or other things;
   
(d)
the time, date, and place of the discovery;
   
(e)
a warning that failure to obey the subpoena may be punished as contempt of court.
  (4) The subpoena may be in Form 79.23A, and the representation for a subpoena to a judgment debtor may be in Form 79.23B.
  (5) A judge may set aside a discovery subpoena in aid of execution.
       
Discovery of others
79.24   A judge who is satisfied on both of the following may order discovery in aid of execution of a person who is not a judgment debtor:
   
(a)
the person likely has information that will aid enforcement of an execution order;
   
(b)
the person will not provide the information, or will not fully or reliably provide the information, in an interview.
       
Delivery of subpoena and witness fees
79.25 (1) A discovery subpoena in aid of execution, or an order for discovery in aid of execution, must be delivered to the witness personally.
  (2) Fees and travel expenses in the same amount required by the Costs and Fees Act to be paid to a witness for attending a civil trial or hearing must be delivered to a witness who is not a judgment debtor, or a present or former officer, manager, or director of a corporate judgment debtor.
  (3) The subpoena, or the order and payment, must be delivered no less than ten days before the day of the discovery or the witness is not obliged to attend the discovery.
       
Conduct of discovery in aid of execution
79.26 (1) Rules 18.13(1) and (2), 18.14, 18.15, 18.16(3) to (5), 18.17, 18.22, and 18.23, of Rule 18 - Discovery, apply to a discovery in aid of execution, unless a judge orders otherwise.
  (2) A judge may give directions for the conduct of a discovery in aid of execution, and may award costs of the discovery.
       

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