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Sued for marital debt in Canada.

Discussion in 'Small Claims & Municipal Court' started by Govtman, May 17, 2019.

  1. Govtman

    Govtman Law Topic Starter New Member

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    Jurisdiction:
    Nova Scotia
    My ex-wife says that she is going to sue me in small claims court in Canada for debt she incurred while we were married, although during our divorce in Florida recently, she signed a statement indicating that she had no marital debt. I am a U.S. citizen who renounced his lawful permanent resident status in Canada, and currently reside in Texas. My income is derived of Social Security, Federal Retirement and V.A. Disability. This income is direct deposited into a checking account I maintain in Vermont.

    My question is, since Vermont is not a signatory of the Foreign-Country Money Judgements Recognition Act of 1962 or of its revision in 2005, and my income appears to be protected by U.S. Federal law against garnishment, do I need to respond to any communication from the Canadian Court? I don't want to spend money on filing Motions, obtaining a lawyer, and traveling to Canada to appear in Court if the Court has no means of enforcing their judgment. I do not plan on entering Canada again and barring extradition, do not plan on giving them jurisdiction of me in the future.
     
  2. army judge

    army judge Super Moderator

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    If she did sign such a document before a Florida court, you might find it to be useful in the future.

    If you reside in Texas and bank in Texas I can assure you that NONE of that income cold be levied against for a PRIVATELY owed debt (even some government owed debts can't levy against wages or other income in Texas).


    You might wish to close the VT account and open one in TX.

    Should you do so, NO foreign court could touch your assets.

    I am unsure about VT.
    My GUESS would be the type of income you receive is protected against levies, but why not ask the bank in VT?

    If you wish to ask the bank, send written communication and ask for a written answer, or call and ask for a written answer.


    I can NOT answer your declarative with any definitive legal certainty.

    Why?

    You discuss "extradition", which implies there MIGHT be a criminal issue pending before a Canadian court.

    If you simply are being summoned to appear before a Canadian court, legally it would be very hard (if NOT impossible) for the court to do so for a small claims civil suit.
     
  3. zddoodah

    zddoodah Well-Known Member

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    We need to sort out the relevance of the four jurisdictions you've mentioned.

    1. You "currently reside in Texas." So far, so good.

    2. You maintain a checking account in Vermont, but you don't live there. What's up with that?

    3. You "divorce[d] in Florida recently." How recently. Did both you and your ex-wife live there together? For how long?

    4. Your "ex-wife says that she is going to sue [you] in small claims court in Canada." Why? Is that where she now lives (and is that in Nova Scotia)? You wrote that you "renounced [your] lawful permanent resident status in Canada," so I assume you lived in Canada at some point. Correct? How long and when did you live there and in what province(s)?

    There's no way to answer this question intelligently in the abstract. However, if you don't need to respond, it's not for the reasons you mentioned. The general rule is that you ignore communication from a court at your own peril.

    While Vermont has not enacted the Uniform Foreign-Country Money Judgments Recognition Act, it certainly has procedures for domesticating judgments entered in other U.S. and non-U.S. jurisdictions.

    As far as your "income [being] protected by U.S. Federal law against garnishment," that's not entirely correct. Social security, federal retirement and V.A. disability income cannot be directly garnished. However, once money is in a bank account, it's indistinguishable from money from any other source. If you have an account into which only money from those sources is deposited, there are laws that may put a burden on your bank to notify any person seeking to levy on the account that the money in the account is not subject to levy, but those protections are not necessarily perfect. If a levy is served and the bank doesn't catch it, you'd then have the burden of taking legal action to thwart the levy. Since you live in a remote location from where the account is located, that may be difficult to do in the short time you have to do it.

    A court does not enforce its own judgments. Rather, the parties enforce the judgments.

    One more thing: If your ex-wife were posting here, she would be told that the way to handle this situation is to seek to domesticate the Florida divorce decree in the state where you have assets, so that's always a possibility.
     
  4. Govtman

    Govtman Law Topic Starter New Member

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    Army Judge, thanks for the advice. I have been in phone contact with my bank in VT, but no answers. I will e-mail them for a written reply in addition to contacting their corporate offices.
    Also, the "extradition" comment was just an inside joke. I'm a retired Fed that could still pass a background check. Ha!
     
  5. army judge

    army judge Super Moderator

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    It might be better to send a written question by US Priority Mail (that you have tracking & delivery information) or another overnight carrier.

    Either way, a written answer is useful.

    Over the long term, move the money to a Texas account.

    There are some very safe protections afforded to people in your position as regards social insecurity bennies and pensions.


    Bully for you, mate, bully for you!
     
  6. Govtman

    Govtman Law Topic Starter New Member

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    Zddoodah, thanks for your comments. In answer to your questions;
    I lived in VT for over 20 years, opened an account, set up e-pay for all my bills and have not felt compelled to transfer to another bank.
    Divorce was final last month. We were "snowbirds" for the past five years (six months in Nova Scotia and six months in Florida).
    Ex wife is either in Nova Scotia or Newfoundland, don't know for certain.
    Deposits into my VT account are only those mentioned.
    PS. The divorce judge awarded her my boat in payment for any marital debt and in lieu of any alimony payments.
     
  7. adjusterjack

    adjusterjack Super Moderator

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    There is no going to sue. There is only sue or not sue. Until you get served a summons and complaint you are free to tell your ex to pound sand and ignore her.

    If you do get sued in a Canadian court you would be wise to file an appropriate answer and move for dismissal as the proper venue would be the court where your divorce decree is. I wouldn't take a chance on a default judgment no matter how protected I thought I was.
     
  8. Govtman

    Govtman Law Topic Starter New Member

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    Adjusterjack, thanks for your comments, I am currently brainstorming for information to respond with a Motion to Dismiss, if and when the summons and complaint arrive.
     
  9. adjusterjack

    adjusterjack Super Moderator

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    How much money is she claiming?
     
  10. Govtman

    Govtman Law Topic Starter New Member

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    Don't know yet, but probably just under the max for small claim court in Canada.
     
  11. adjusterjack

    adjusterjack Super Moderator

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    The max is $25,000. Might be worth it to her to take a stab at it for the small filing fee that it takes.

    You would be wise to study up on small claims procedure for Canada:

    Small Claims Court - Ministry of the Attorney General

    And the actual Rules of Small Claims Court, specifically Rule 6 Forum and Jurisdiction:

    https://www.ontario.ca/laws/regulation/980258

    There are forms available at:

    Rules of the Small Claims Court Forms | Ontario Court Services

    The following is not legal advice as I am not a lawyer and I'm just making helpful comments. If you act on my comments you do so at your own risk.

    If you are sued in a Canadian small claims court you'll want to address the following in your motion to dismiss:

    1 - Res Judicata.

    See:

    Supreme Court of Canada - Res Judicata

    2 - Lack of personal jurisdiction over you by the court.

    This is tricky. See:

    https://mcmillan.ca/101571

    3 - Improper venue. Probably goes with personal jurisdiction but I have no sources about that.

    Above may be only the beginning. In addition to denying allegations lawyers throw in every possible doctrine that might be appropriate including:

    "Failure to state a claim on which relief can be granted."

    Lots of stuff on the internet if you google it.
     
  12. Zigner

    Zigner Well-Known Member

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    If this were to happen in the states, it might subject the other party to sanctions for abuse of process. I wonder if the same applies to Canada.
     
  13. adjusterjack

    adjusterjack Super Moderator

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