Media stories often cover high-profile sexual assault cases involving perpetrators such as priests, teachers, or hockey coaches. These are the cases that get most of the headlines and attention. In many of those cases, there is an institution, with insurance, to compensate the victim for the damage caused by the assault. In many other cases, however, the assault is perpetrated by an individual with no insurance and no connection to a big institution. In such cases, there can still be a viable compensation claim, so long as the perpetrator has assets.
The first step on the road to compensation is for the victim to file a civil lawsuit against the perpetrator. The victim can then obtain a judgment against the perpetrator. The perpetrator then becomes a judgment debtor and the victim a judgment creditor. What happens if the perpetrator (debtor) doesn’t pay up?
As a general rule, all personal property owned by the judgment debtor may be seized including land, shares, dividends, money, book debts, patents, equitable rights, the debtor’s interest as a mortgagee or joint tenant, and matrimonial property.
If the debtor attempts to transfer assets to avoid paying the debt, the transfers may be set aside by the courts through the Fraudulent Conveyances Act (FCA).
In the 1999 case of Beltsos v Tarala, a conveyance of a home from a debtor to his wife was set aside as a fraudulent conveyance. The court found that the intent to protect the house from potential creditors and the effect of defeating, delaying or hindering an existing creditor, was sufficient to set aside the transaction.
The Execution Act sets out the rules of seizure and sale of personal property. Section 9(1) of the act states:
“The sheriff to whom a writ of execution against lands is delivered for execution may seize and sell thereunder the lands of the execution debtor, including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any interest of the execution debtor in lands held in joint tenancy.”
The federal Bankruptcy and Insolvency Act (BIA) can also come to the aid of victims when seeking to enforce judgments. Unlike most other debts, bankruptcy cannot wipe out the perpetrator’s debt if it arises from a civil sexual assault judgment. Section 178(1)(a) of BIA states that an order of discharge does not release the bankrupt from any award of damages by a court in civil proceedings in respect of “bodily harm intentionally inflicted, or sexual assault”.
Overall, there are many legal tools available to assist victims of sexual assault with holding their perpetrators accountable through a civil lawsuit. For more information feel free to reach out to a lawyer at Beckett Injury Lawyers who specializes in representing victims of sexual assault
