If a criminal fails to pay a court-ordered restitution under Section 738, the Crown prosecutor will not collect it for you. You must register the certified criminal order in civil court to legally garnish the offender’s wages or seize their assets.
When you are the victim of a crime, such as severe vandalism, theft, or corporate fraud, the financial devastation can be life-altering. During the criminal sentencing phase, the judge may grant a Restitution Order under Section 738 of the Criminal Code, ordering the offender to repay you for easily quantifiable financial losses. While hearing the judge order the offender to pay you $15,000 CAD brings a sense of justice, many victims are shocked to learn that the criminal court does not actually force the offender to write the cheque.
If the offender refuses to pay, ignores the deadline, or hides their money, it is entirely up to you to enforce the debt. 📝 Under Section 741 of the Criminal Code, a criminal restitution order can be entered into the civil justice system, transforming it into an enforceable civil judgment. Whether you are dealing with the Superior Court of Justice in Ontario or the Court of King’s Bench in Alberta, navigating the civil enforcement process requires strategic action, often with the help of a civil litigation law firm.
Step-by-Step Process for Enforcing Restitution in Canada
Step 1: Obtaining the Certified Restitution Order
The process begins at the criminal courthouse where the offender was sentenced. You must ask the criminal court clerk for a certified copy of the Restitution Order. This document is the absolute proof that the debt exists. You must wait until the date the judge ordered the money to be paid has officially passed. If the offender was given two years to pay and that time has not expired, you cannot start civil enforcement yet.
Step 2: Registering the Order in Civil Court
Once the deadline passes and the debt remains unpaid, take your certified criminal order to the local civil court registry (e.g., the Superior Court). 📄 By paying a small administrative fee, you can file the document to be entered as a civil judgment. From this moment on, the criminal restitution carries the exact same legal weight as if you had sued the offender in a civil lawsuit and won.
Step 3: Conducting an Asset Search
Before you can seize money, you need to find it. You cannot blindly ask the court to give you money; you must point the sheriff or bailiff in the exact right direction. You or your lawyer will need to conduct property title searches, skip tracing, or request an examination in aid of execution, which forces the offender to sit in a room under oath and answer questions about their current employment and bank accounts.
Step 4: Initiating Wage or Bank Account Garnishment
If you discover where the offender works or banks, you can apply for a Notice of Garnishment. 💳 The civil court will issue a legal order to the offender’s employer or bank, forcing them to redirect a portion of the offender’s paycheque or freeze the funds in their chequing account and send the money directly to the court, which will then be dispersed to you.
Step 5: Registering a Writ of Seizure and Sale
If the offender owns real estate, you can file a Writ of Seizure and Sale (sometimes called a Writ of Enforcement) against their property title. This acts as a powerful lien. While you may not be able to force an immediate sale of their primary residence, the writ ensures that if the offender ever tries to sell or refinance their home, your restitution debt must be paid in full from the proceeds before they see a single dollar.
How Much Does it Cost in Canada?
Victims must spend their own money to chase an unpaid restitution order, though these enforcement costs can often be added to the offender’s total debt. 💵 Here is an estimate of typical civil enforcement costs:
| Enforcement Action | Estimated Cost in CAD |
|---|---|
| Filing the Order in Civil Court | $50 – $150 CAD depending on the province. |
| Notice of Garnishment Fee | $100 – $200 CAD per garnishment issued. |
| Writ of Seizure and Sale Registration | $60 – $150 CAD. |
| Lawyer or Paralegal Retainer | $1,500 – $3,500+ CAD to manage the asset search and paperwork. |
How Long Does the Process Take?
Civil enforcement is a game of patience. ⏳ Entering the order takes only a few days, but locating hidden assets or waiting for garnishments to slowly drain an offender’s wages can take several months to several years. Fortunately, civil judgments in Canada last a very long time (typically 10 to 20 years, and can often be renewed), meaning you can wait until the offender finally secures a good job or buys a house.
Frequently Asked Questions (FAQ)
Why doesn’t the police or Crown collect the money?
The police and Crown prosecutors handle criminal liability, not private debt collection. Once the judge orders restitution, it is legally considered a private debt owed directly to you, making you responsible for the civil enforcement steps.
Can the offender erase restitution by filing for bankruptcy?
Generally, no. Under Canadian insolvency laws, debts arising from fraud, embezzlement, or criminal court restitution orders survive bankruptcy. The offender cannot use a Licensed Insolvency Trustee to wipe out their financial punishment.
What if the offender is on social assistance and has no assets?
This is known as being “judgment proof.” By law, you cannot garnish provincial welfare, disability payments, or completely strip someone of basic living necessities. You may have to wait years until their financial situation improves to collect the debt.
Does a restitution order cover my pain and suffering?
No. Criminal restitution under Section 738 is strictly limited to easily ascertainable property damage or direct financial loss (like a stolen car’s value or broken windows). It does not compensate for emotional distress or pain and suffering.
Can I still sue the offender in a normal civil lawsuit?
Yes. You can launch a separate civil lawsuit to claim damages for pain, suffering, and lost future wages. However, any money you collect through the criminal restitution order will be deducted from the total civil damages you are awarded to prevent double compensation.
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