Form 20P: the affidavit behind each Small Claims enforcement step

Winning in Small Claims Court produces an order to pay. It does not move any money. Every step that follows, from a writ to a garnishment, is a separate request to the clerk, and Rule 20 of the Rules of the Small Claims Court (O. Reg. 258/98) ties nearly all of them to one sworn document: the Affidavit for Enforcement Request, Form 20P.

Rules 20.04, 20.06, 20.07, 20.08 and 20.10 each name it, and the writ of delivery in rule 20.05 needs an affidavit saying the property has not come back. The current form is dated January 1, 2021. It has four pages: the requests on pages 1 and 2, the amount owing on page 3, and the place where it is sworn at the foot of page 3 and on page 4.

Seven boxes, and the part of the form each one opens

Paragraph 1 starts with two tick boxes about the person swearing: the plaintiff or creditor, or a representative of the creditor. Then come the requests. More than one can be ticked on the same affidavit, and each box decides which later section has to be filled in.

Drawn for this article from Form 20P (January 1, 2021). It sorts the boxes by the section they lead to and is not a copy of the form.

The writ of delivery is the odd one out. It enforces an order about things, so its section asks what the property is, who the order was made against, when and in which court, and states that the property has not been delivered. The other five requests enforce an order about money, so they all lead to the same page.

Section 3 is a ledger, read from top to bottom

Section 3 names the debtor, the date of the judgment and the court that made it, then sets out the money in six lettered lines. Two of them carry their own small calculation: the principal, the yearly rate, the start and end dates, and the number of days.

The lines of section 3 as they run down page 3, with the arithmetic each one adds or takes away.

A boxed note sits between lines E and F, and it changes how both interest lines are worked out:

Calculation of interest is always on the amount owing from time to time as payments are received.

The note goes on to require a separate sheet showing how the pre-judgment and post-judgment interest totals were reached. So a debtor who has paid part of the judgment gets a lower principal from each payment date onward, and that sheet travels with the affidavit. The rates themselves come from the judgment and from the Courts of Justice Act; the form only records them.

Line F is the one that grows with each request. The cost of issuing the very enforcement being asked for belongs on it, and post-judgment interest on line E keeps running, so a second affidavit for the same judgment sworn later carries a new total.

Garnishment has stricter wording than the other boxes

Rule 20.08 (3) lists what the affidavit has to state when it supports a notice of garnishment, and the list is longer than for any other request:

• one debtor and one garnishee, and no more, because rule 20.08 (5) allows a notice to name only one of each;
• the garnishee's name and address, and the creditor's belief that it owes or will owe the debtor money, with the grounds for that belief;
• any details of those debts that the creditor knows;
• the date of the order, the amount awarded, where it was made, the post-judgment rate, payments received and the amount still owing.

The result is that a creditor garnishing a bank account and wages at the same time files two affidavits and gets two notices. The affidavit is filed with a clerk in the territorial division where the debtor lives or carries on business, with a certificate of judgment if the order came from another division.

The page 2 lines also record where the debtor will be served, "within five days of serving it on the garnishee". That is rule 20.08 (6.1). Proof of that service is usually an affidavit of service, and the article on Form 8A, box by box covers that form. A notice of garnishment lasts six years and can be renewed before it runs out with Form 20E.1, which goes in together with a fresh Form 20P.

When the affidavit is not enough on its own

The order is more than six years old

Rules 20.06 (1.1), 20.07 (1.1) and 20.08 (2.1) all add the same condition: once six years have passed since the order, a writ or a notice of garnishment is issued only with leave of the court. If the leave order is not used within a year, it lapses and a new motion is needed.

A payment order or a consolidation order is in force

While an order for periodic payment, an order as to payment after an examination, or a consolidation order is in force, the creditors it names cannot take or continue enforcement steps. Rules 20.02 (2), 20.09 (9) and 20.10 (8) each make the same single exception: a writ of seizure and sale of land, issued and filed with the sheriff.

The writ of land is issued through Teranet

Since O. Reg. 222/25, rule 20.07 (1.3) lets an authorized Teranet user, defined as a lawyer, a paralegal or a government body, have a writ of seizure and sale of land issued through the Teranet software without filing an affidavit for enforcement request. Anyone else asking the clerk for that writ still files Form 20P.

The sworn block on pages 3 and 4

Under the total, the form asks the commissioner to tick one of two ways the affidavit was taken: in person, or by video conference. The in-person block records the city and the county or region, and the date. Page 4 holds two video versions under O. Reg. 431/20, Administering Oath or Declaration Remotely, one for a deponent and commissioner in the same city or town and one for different places, each naming both locations. The page ends with the form's warning that knowingly swearing or affirming a false affidavit is an offence under the Criminal Code.

When the form is sworn in person before Ilya Kershtein, the order of things follows the block itself:

1. The form arrives typed or filled in, with every amount in section 3 completed and the interest sheet attached, but not signed.
2. Ilya Kershtein checks the deponent's government photo identification against the name in the opening line.
3. The deponent swears or affirms that the contents are true, then signs as the deponent in front of him.
4. He completes the place and date and signs as commissioner. Under Ontario law a notary public may take affidavits, as the commissioning page explains.

The notarial part covers identity, the oath or affirmation, and the signatures. The figures and the choice of request belong to the creditor, and the issuing belongs to the clerk. Other paperwork from the same claim is described on the Small Claims Court page, and an appointment can be made through the booking page.