THE ACCOUNTANT OF SUPERIOR COURT JUSTICE M7a Ascj

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THE ACCOUNTANT OF THE
SUPERIOR COURT OF
JUSTICE
Office of the Public Guardian and Trustee
The Office of the Public Guardian and Trustee
The Accountant of the Superior Court of Justice
ISBN 978-1-4249-3912-1
© Queen’s Printer for Ontario, 2007
Reprinted in 2016
Disponible en français
1
The Office of the Public Guardian and Trustee
THE ACCOUNTANT OF THE SUPERIOR
COURT OF JUSTICE
The Superior Court of Justice issues judgments and court orders providing for the
payment of money and other assets, such as mortgages and securities, into court in
some proceedings. Some provincial laws also require that certain payments be made
into court. The Accountant of the Superior Court of Justice (“The Accountant”) accepts
payments into court, and manages the funds or holds other assets, until The Accountant
is required to pay the money and other assets out of court under judgments and orders
of the Superior Court of Justice or other provisions of law. Effective January 1, 2013,
money is also being paid into court to The Accountant for Small Claims Court and
Family Court proceedings.
Children
The Accountant holds money and other assets paid into court for children until they
become eligible to receive them. Children become eligible for payment out of court upon
turning 18 years of age, or upon meeting other terms as provided by a trust, or as set
out in a court order. When children become eligible to receive their money or assets
held by The Accountant, notice is sent to them by mail to their last known address. All
the forms that must be completed for payment out of court, together with instructions,
are sent with the notice.
If you or your child have assets in court, please keep The Accountant informed of your
current address.
Litigants
The Accountant holds money and other assets paid into court pursuant to orders in court
proceedings. Payments out of court are made pursuant to court orders and reports, or
signed consent documents, following the Rules of Civil Procedure and Family Law
Rules, or pursuant to court orders under the Small Claims Court Rules, and in
accordance with the provisions of various statutes.
Litigation matters are complex and it is advisable to refer all questions to your lawyer.
The Accountant of the Superior Court of Justice is the trustee for money paid into court
and custodian for securities placed with the court and cannot give any legal advice.
If you are corresponding, please address your letter to:
The Accountant of the Superior Court of Justice
Office of the Public Guardian and Trustee
595 Bay Street, Suite 800
Toronto, ON M5G 2M6
or fax your letter to The Accountant at 416-314-6700.
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Please note that original documents, such as affidavits or court orders
for payment out of court, must be mailed, not faxed.
If you prefer to call, you can reach The Accountant at:
Toll free, at 1-800-366-0335
for local calls concerning children who have turned 18 years of age, at 416-314-
2477
for all other local calls, at 416-314-8692
TTY: 416-314-2687
at our website: www.attorneygeneral.jus.gov.on.ca/english/family/pgt
Table of Contents
Questions and Answers
Assets Held in Court for Children 1 – 22
Litigants – All 23 – 37
Litigants – Family Court 38 – 39
Litigants – Small Claims Court 40 - 41
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Answers to Frequently Asked Questions
about Assets Held in Court for Children
______________________________________________
1. Why is children’s money held in court?
Ontario law requires children’s assets to be held in court, unless:
a law or court order provides otherwise
a document such as a Will or trust instrument provides otherwise
a court has appointed a guardian of the child’s property
A parent or other person may apply to the court to become the guardian of their
child’s property.
More information may be obtained from the Office of the Children’s Lawyer at:
c/o MGS Mail Delivery Services
2B-88 MacDonald Block
77 Wellesley Street West
Toronto, ON M7A 1N3
Telephone: 416-314-8000
Fax: 416-314-8050
Additional information about the Office of the Children’s Lawyer is available at:
www.attorneygeneral.jus.gov.on.ca/english/family/ocl/
2. How can I correct the birth date or spelling of my child’s name?
You may request correction by writing to The Accountant. A photocopy of the
child’s birth certificate must be provided with your letter. A custodial parent or
person with lawful custody must sign the letter if the child is less than 16 years of
age; the signature of the child is required if the child is 16 years of age or older.
3. What do I do if my child’s legal name has changed?
You may advise The Accountant in writing, attaching a photocopy of the adoption
order or change of name certificate (whichever is applicable) to your letter. A
custodial parent or person with lawful custody must sign the letter if the child is
less than 16 years of age; the signature of the child is required if the child is 16
years of age or older.
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4. How can I find out if there is money in court for my child?
You may request this information by writing to The Accountant, providing:
information about why there might be money in court for the child
copies of any documents that pertain to the matter
the child’s address at the time that money was paid into court
the name(s) of other family members that might have been involved
the name(s) of other parties in the court case, or the name of the estate
A copy of the child’s birth certificate should be attached to your letter. A custodial
parent or person with lawful custody must sign the letter if the child is less than 16
years of age; the signature of the child is required if the child is 16 years of age or
over.
5. Will The Accountant invest my children’s money?
A prudent investment framework has been developed for the management of
children’s trust funds. Money is automatically invested in the OPGT’s Fixed
Income Funds and interest is credited to the child’s account each month at a
prescribed interest rate that is based on the Funds’ earnings. To enhance
income, minimize taxes, and provide the required diversification for longer-term
investment, some of the child’s money may also be invested in other OPGT funds
that include high quality equities, with earnings automatically re-invested in the
fund.
6. What financial planning services are provided by The Accountant?
The Accountant is required to invest all funds prudently. To assist in this role, the
Office of the Public Guardian and Trustee (“OPGT”) employs qualified
professions, including experienced financial planners, to make all investment
decisions in the best interest of the individuals for whom The Accountant holds
assets, based on information available. The services of a financial planner are
included in the regular fees of The Accountant of the Superior Court of Justice.
7. How will the child’s cash be invested?
Children’s funds are invested prudently in one or more of the OPGT’s three
common trust Funds. Investment allocation decisions will be based on the
information provided by the parent/guardian in accordance with established
criteria such as the child’s age, health and ongoing financial needs.
All children will participate in the OPGT’s Fixed Income Funds, comprised of high
quality fixed income securities (primarily staggered maturities of five year Federal
and Provincial Government or high quality corporate bonds). Interest is paid
monthly on the average daily balance, based on an interest rate determined by
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the income generated by these Funds and approved by the OPGT’s Investment
Advisory Committee.
The OPGT also has a unitized Canadian Income and Dividend Fund for those
who may require higher regular income, and can tolerate some capital risk over a
medium to long-term investment time horizon. The fund consists of dividend-
paying Canadian equities and Canadian fixed income securities. Income earned
from this Canadian balanced fund is reinvested in additional units of the fund. In
situations where the child requires regular monthly income, funds can be paid into
the child’s trust account each month.
The unitized OPGT Diversified Fund is available for those who have money that
can be invested for a longer term. The Fund consists of a diversified portfolio of
Canadian and foreign equities and Canadian fixed income securities. Income
earned from this Fund is automatically reinvested in additional units in the fund.
8. Do parents, guardians or children have any input into how the child’s investments
are handled?
Prior to investment in the unitized funds, The Accountant’s staff consult with the
parent or guardian by the use of a questionnaire to assess the child's ongoing
financial needs and health status. This input will be considered in the context of
the requirement for The Accountant to invest prudently.
9. What happens to a child’s investments when the child becomes eligible to
receive their funds?
When children become eligible to receive their funds, their investment in the
OPGT unitized funds must be redeemed at the current market value.
10. Does The Accountant invest in Registered Education Savings Plans
(RESPs)?
The Accountant of the Superior Court of Justice cannot invest money of a child in
RESPs. RESPs can only be purchased by either a parent or guardian of a child.
11. Does The Accountant charge fees?
Fees are charged monthly by The Accountant as set out in the OPGT Fee
Schedule, as follows:
3.0% of receipts and disbursements (other than original payments into
court)
3/5 of 1% per annum of the average annual value of the funds under
management
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If fees and applicable HST exceed income credited to the account, fees will be
reduced for that month, so that the capital is never diminished due to fees, even
on the final distribution of funds (invested capital will however increase or
decrease with market changes).
12. What about income tax?
The Accountant issues tax slips to both Canadian residents and non-residents for
investment income earned. To comply with the Canada Revenue Agency’s tax
reporting requirements, please provide your child’s Social Insurance Number to
the Accountant, if one is available. If you have not received your tax slips by mid-
March, notify The Accountant.
Custodial parents should file required income tax returns for their child. Please
note that income earned on certain payments into court (e.g. compensation for
personal injury) is non-taxable until age 21. We recommend that you consult with
your financial or tax advisor.
13. Will I get a statement of account?
Statements are not sent automatically, but are available upon written request. A
copy of the child’s birth certificate should be attached to your first letter requesting
a statement. Subsequent requests do not require a copy of the birth certificate.
A custodial parent or person with lawful custody must sign the letter if the child is
less than 16 years of age; the signature of the child is required if the child is 16
years of age or over.
14. What do I do if my child needs money now but is not eligible for all of the
trust funds?
In the event that the parent(s) or person with lawful custody of the child is unable
to afford a necessary expense for the direct benefit of the child, the court may
consider a request for payment from the child’s trust funds. For information on
the procedure to follow, contact the Office of the Children’s Lawyer at:
Minors’ Funds
c/o MGS Mail Delivery Services
2B-88 MacDonald Block
77 Wellesley Street West
Toronto, Ontario
M7A 1N3
Telephone: 416-314-8000
Fax: 416-314-8050
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15. Can I prevent my child from knowing about or getting the money until they
are older?
The law requires the child to be involved in and consent to any communications
relating to their assets from the age of 16 years. A notification package will be
sent to your child when they become eligible for payment out of court. The
Accountant must pay the money when the child becomes entitled to it. You can
assist your child by providing financial planning advice for him/her from a financial
professional whom you trust.
16. What do I do if I do not get a notice after I become eligible to receive my
money?
Contact The Accountant; when your eligibility is confirmed, the required forms will
be sent to you immediately.
17. I received a notice from The Accountant, but where did this money come
from?
Complete the Affidavit of Identification on the form provided by the Accountant
and send it with a letter requesting this information. The Accountant will provide a
copy of the documents relating to the payment into court, unless these
documents contain the personal information of others. If The Accountant cannot
provide copies of the documents, you will be advised as to how you can acquire
the information that you are seeking.
18. How long does it take to get my money? Can I come in person and get it?
Money will be paid out within 2-3 business days of receipt of properly completed
Affidavit of Identification, Statement of Relationship and Identification and
Requisition for Release of Assets, which forms are provided by the Accountant. If
a correctly completed Direct Deposit form is provided, money will be transferred
to your bank account, generally 1-3 business days after the payment has been
approved. Otherwise payment by cheque mailed to the address you provided
should arrive 2-5 business days after approval of the payment. It is not possible
for you to attend in person to submit the forms and receive payment on the same
day.
Because of the increasing incidence of cheque fraud and potential delays in
having access to the funds when received, we encourage clients to have the
Direct Deposit form correctly completed so that electronic transfer of funds can be
arranged.
19. Where do I find a Commissioner to sign the Affidavit of Identification?
You may go to your local court office, municipal/township office or your lawyer to
have the Affidavit of Identification completed and commissioned. You should call
first to ensure that a Commissioner of Oaths will be there and find out what fees
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will be payable, if any. Please note that the person who signs the Affidavit must
sign it in front of the Commissioner of Oaths. You must swear or affirm that the
contents of the document are true.
20. I have assets other than just money in court; how do I get these?
After providing the Affidavit of Identification, Statement of Relationship and
Identification and Requisition for Release of Assets, which forms are provided by
the Accountant, you should contact The Accountant to arrange for delivery of
these assets to you.
21. My child received notice but is not capable of looking after the money -
what should I do?
Except in cases of mental incapacity, upon turning 18 years of age or other date
of entitlement, your child is considered legally to be capable of looking after the
money. The Accountant must make payment when your child becomes entitled
to it. You can help by providing your child with advice from a financial planning
professional whom you trust. In the case of mental incapacity, The Accountant
will advise you on how to proceed.
22. My child has passed away ... how do I get their money out of court?
You should contact The Accountant for information on how to proceed.
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Answers to Frequently Asked Questions
about Assets Held in Court for Litigants
General questions are addressed at the beginning of this section, while questions
relating to lien bonds & letters of credit are addressed at the end of this section.
23. I have to pay money into Court – to whom should the cheque be payable?
Payment may be made by certified cheque, bank draft or money order payable to
The Accountant of the Superior Court of Justice. You will need to attach a
copy of the documents requiring the payment into court with your funds.
24. Will interest be paid on money held in court?
Yes. A prudent investment framework has been developed for the management
of money held by The Accountant. Money is invested in OPGT Fixed Income
Funds, comprised of high quality fixed income securities (primarily staggered
maturities of five year Federal and Provincial Government or high quality
corporate bonds). Interest is paid monthly on the average daily balance based on
an interest rate determined by the income generated by these Funds and
approved by the OPGT’s Investment Advisory Committee.
25. Does The Accountant charge fees?
Yes, a fee of 3/5 of 1% per annum on the average annual value of the funds held
by The Accountant, plus applicable HST, will be charged monthly as set out in the
OPGT’s Fee Schedule.
26. My property was sold because there were some taxes owing and I was told
that the balance, after payment of the taxes, was paid into court. How can I
get the rest of my money?
You may write to The Accountant to find out if there are funds in court from the
sale of your property. In your letter you should provide information about the
property and attach a copy of any documents you may have. When money has
been paid into court as the result of a municipal tax sale, a court order is required
to release the funds.
27. How do I get a court order?
You can get information about this from your local court office or from a lawyer.
28. I cannot afford a lawyer – how can I get some help?
If you do not have a lawyer, you may wish to contact the Lawyer Referral Service
operated by the Law Society of Upper Canada. The phone number is 1-800-268-
10
8326 and it operates from 9 a.m. to 5 p.m. Monday to Friday. Lawyers
participating in the service will offer you up to a half hour free consultation. If you
need further legal assistance but are unable to afford a lawyer, you may contact
the Legal Aid Ontario office nearest you to discuss your eligibility for fully or
partially funded legal aid. Legal Aid phone numbers can be found in the white
pages of your local telephone directory.
Alternatively, you may contact JusticeNet which is a not-for-profit service
promoting increased access to justice for low and moderate-income
Canadians. The lawyers in the program offer their skills at a reduced fee to
clients of limited means, based on a sliding scale that takes into account both
income and number of individuals supported. They can be contacted at: Toll
Free: 1-866-919-3219 or by e-mail at www.justicenet.ca.
29. Funds are held in Court “subject to further court order”. The parties to the
action have settled the dispute and one party needs funds urgently. What
can that party do to obtain the money without delay?
If the Order is obtained on consent of the other parties to the action and so
indicated in the Order, funds may be paid out of court without delay. An order
which is not obtained on Consent which “waives the affidavit required under rule
72.03(c)(ii) of the Rules of Civil Procedure” does not eliminate the appeal period
for the order, it only waives the requirement for the affidavit.
30. I am required to give security in respect of a proceeding in court – do I have
to pay money into court or can I provide a bond or letter of credit?
If the court order specifically states, a bond of an insurance company which is
licensed under the Insurance Act to write surety or fidelity insurance or a letter of
credit drawn on a bank may be paid into court as security, subject to the following
conditions:
The court may approve the form and content of the bond or letter of credit
that is paid into court by affixing a court stamp; or
In the absence of court approval, the parties to the action may, by
affidavit supported by their written consent provided to The Accountant of
the Superior Court of Justice, approve the form and content of the bond
or letter of credit that is paid into court; or
In the absence of court approval or consent, The Accountant of the
Superior Court of Justice will approve the form and content of the bond or
letter of credit that is paid into court. Generally, The Accountant will
require that
- a letter of credit be drawn on a chartered Canadian bank; and
- the bond or letter of credit be made in favour of The Accountant
(payable to The Accountant of the Superior Court of Justice);
and
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- The Accountant must be able to draw on the bond or letter of
credit on demand; and
- the bond or letter of credit must be irrevocable for the term for
which it is issued.
31. Can I find out if The Accountant is (still) holding a lien bond or letter of
credit?
The Accountant is only able to provide information to a party, a party’s solicitor, or
to the issuer of the security. Requests must be made in writing, providing the
name of the issuer, the bond or letter of credit number, the date and the amount.
32. Will interest be paid on a lien bond or letter of credit?
The Accountant does not pay interest on lien bonds or letters of credit.
33. Does The Accountant charge fees on lien bonds or letters of credit?
The Accountant does not charge fees on lien bonds or letters of credit.
34. How can we draw on a lien bond or letter of credit?
A court order is needed to (partially or fully) draw on a lien bond or letter of credit.
The order will require The Accountant to make a demand on the bond/letter of
credit, make payment from the proceeds to a specified party and will provide for
what is to happen to the bond/letter of credit once the funds have been drawn.
35. What are the requirements to release a lien bond or letter of credit?
A court order or the consent of the parties to the proceeding is required to release
a lien bond or letter of credit for cancellation posted as security for the return of
property, pursuant to Rule 44.06 of the Rules of Civil Procedure. A court order is
required to release security posted under the Construction Lien Act, in
accordance with section 45(3) of that Act.
36. The Accountant is holding money for a person who owes me a debt. Can I
collect the money owed to me by sending The Accountant a Notice of
Garnishment?
The Accountant cannot pay money out of court in response to a Notice of
Garnishment. A court order is required.
37. My spouse and I are divorced and the court has my money; how do I get it
back?
The court document directing the payment into court will determine what is
required for the release of funds. In some cases, another court order will be
required to pay out the funds. Your lawyer can advise you or contact The
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Accountant’s office directly for assistance in determining if another court order is
required.
If your case is a proceeding under the Family Law Rules, please refer to question
40 below.
Family Court Proceedings
38. How and where do I pay money into court under Family law proceedings?
A copy of the court order and completed “Request to Pay Money into or out of
Court – Family” form are required. You may pay the funds into court by obtaining
a Direction to Receive Funds from the Registrar or Clerk of the Court where the
proceeding is, by courier/mail a bank draft, certified cheque or money order to
The Accountant of the Superior Court of Justice, or by attending in person at the
Office of The Accountant of the Superior Court of Justice.
Please refer to the following brochure for more information:
http://www.attorneygeneral.jus.gov.on.ca/english/family/Family_Money_Paid_Into
_Court_Guide.pdf
39. How and where do I apply for funds out of court under Family Court
proceedings?
There are two ways to obtain funds out of court under Family Court proceedings.
In both cases, a completed “Request to Pay Money into or out of Court – Family”
form is required, and must be accompanied by the following:
A certified copy of the court order directing payment out of Court; or
Written consent to the payment out of court by ALL parties to the action.
You may apply for the funds to be paid out of court at the office of The
Accountant of the Superior Court of Justice, by mail or in person. Payment
cannot be made on the same day.
Please refer to the following brochure for more information:
http://www.attorneygeneral.jus.gov.on.ca/english/family/Family_Money_Paid_Into
_Court_Guide.pdf
Small Claims Court Proceedings
40. How and where do I pay money into court in a Small Claims Court
proceedings?
You may obtain from the clerk of the Small Claims Court where the proceeding is,
a Direction to Receive Funds form to deposit the funds at the Bank shown on the
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form, or courier/mail the documents and certified cheque, bank draft or money
order to The Accountant of the Superior Court of Justice, or appear in person at
595 Bay Street, Suite 800, Toronto, ON M5G 2M6. All funds deposited directly
at the Bank must be in “guaranteed funds” such as bank draft, certified cheque or
cash.
A “Request to Pay Money into or out of Court – Small Claims” form is also
required, together with a copy of the Small Claims court order, or documents
required under the Statute or Court Rule that applies to your situation.
Please refer to the following link for more information:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/Guide_to_Money_
Paid_Into_Court_EN.pdf
41. How and where do I apply for funds out of court under Small Claims Court
proceedings?
Complete section B of the “Request to Pay Money into or out of Court – Small
Claims” form, and attach a copy of the Small Claims court Endorsement record
stamped with a red court seal**.
Please refer to the following link for more information:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/Guide_to_Money_Paid_I
nto_Court_EN.pdf
**For funds held in court under the Repair and Storage Liens Act, please refer to
the guidelines under section 24(15) or 24(11) of the Act. You may find a copy of
the Act here:
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90r25_e.htm#BK27
This brochure provides a very general overview of the mandate and operation of The
Accountant of the Superior Court of Justice. It does not include all of the details of the
law, policies, procedures and exceptions that may apply in a particular case. For
information about the law please refer to the applicable statutes and contact your lawyer.
Alternate formats of this brochure are available upon request. Please contact 416-314-
2803 or toll free 1-800-366-0335.
The Office of the Public Guardian and Trustee
The Accountant of the Superior Court of Justice
ISBN 978-1-4249-3912-1
© Queen’s Printer for Ontario, 2007
Reprinted in 2016
Disponible en français

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