Underneath the Golden Boy - Robson Hall Faculty of Law

214 Underneath the Golden Boy
(b) any other remedy or legal process to enforce payment of an amount payable by a
planholder. 19
Garnishment 20 , execution, seizure, 21 and attachment 22 are all enforcement
remedies available to creditors as per the Court of Queen’s Bench Act and
Queen’s Bench Rules. These remedies do not apply to the RRSPs of a debtor
except where the creditor (usually the former spouse or common law partner,
but it could also be the caregiver of the debtor’s child) has a Family Maintenance
Act or Family Property Act 23 order. “Any other remedy or legal process to
enforce payment” will include the remedies from equity, including equitable
execution. 24
Further evidence of this near-blanket exemption is found when considering
“absconding debtors.” Absconding debtors are those debtors who leave the
province in order to frustrate the enforcement of a judgment. While the
Executions Act 25 and the Judgments Act 26 both revoke the exemptions found in
each of those particular acts where the debtor has absconded, The RRSP Act
does not have such a provision. RRSPs would still be exempt and would not be
revoked from an absconding debtor. 27
One particular statute within the creditor remedies regime can nullify the
RRSP exemption—The Fraudulent Conveyances Act. Section 5 of The RRSP
Act states the following:
5(1) If a provision of this Act conflicts with a provision of another Act, this Act prevails
unless the other Act expressly provides that it or the provision prevails despite this Act.
19
The Registered Retirement Savings Protection Act, supra note 1, s. 1.
20
Supra note 15, rr. 46.14, 46.15, 60.08, Garnishment Act, supra note 12.
21
Supra note 15, r. 60.07, Executions Act, supra note 12.
22
Supra note 15, rr. 46.01 to 46.13.
23
Family Property Act, C.C.S.M. c. F25.
24
The Mareva injunction would probably not be a “remedy…to enforce payment” because it does
not enforce payment, but rather this injunction creates a personal order that the debtor not
dispose of specified assets. However, it is difficult to see how a Mareva injunction would be of
use to a creditor seeking to make a claim to the debtor’s RRSP. The Mareva injunction is
simply a motion that is a part of the plaintiff/creditor’s main action to enforce the judgment
against the debtor and the main action is unenforceable due to the RRSP exemption.
25
Executions Act, supra note 12, s. 29 “The exemptions in this Act mentioned cannot be claimed
by or on behalf of a debtor who is in the act of removing with his family from the province or is
about to do so, or who has absconded, taking his family with him.”
26
Judgments Act, supra note 12, s. 15; same text as note 24.
27
If the debtor moves to another province then the debtor’s property in the RRSP would not
likely be in Manitoba anymore—it would be in the new province, so there would be no need for
an absconding provision. A question would arise if the debtor absconds to another country.
Does the property in the RRSP still remain in Manitoba