Form 72B- Affidavit (Motion for Payment Out of Court)

Jurisdiction: Country: Canada | Province or State: Ontario

What is a Form 72B- Affidavit (Motion for Payment Out of Court)?

Form 72B is a sworn affidavit you file to support a motion that asks the court to release money held in court. The money sits with the Accountant of the Superior Court of Justice. Funds reach the Accountant in many ways. A party may have paid money into court as security. A judge may have directed money from a sale to be held. A settlement for a minor may be held until the minor turns 18. When someone is ready to receive that money, you ask the court to pay it out. Form 72B provides the sworn facts the court needs to allow that payment.

The affidavit explains who you are and why you are entitled to the money. It identifies the exact fund and how it got into court. It confirms that all legal conditions for release are met. It also tells the court how to issue payment and to whom. Think of it as the factual backbone of your motion. Without this affidavit, the court cannot safely direct payment out.

Who typically uses this form? Many users do. You might be a plaintiff who posted security and won. You might be a defendant who is entitled to a return of security. You might be an estate trustee seeking release of a legacy paid into court. You might be a construction lawyer dealing with lien security. You might be an insurer, a surety, or a stakeholder who paid funds in. You might be a beneficiary who has just turned 18 and can now receive a court‑held settlement. Counsel often swear the affidavit on a client’s behalf. Self‑represented parties can swear it themselves.

Why would you need this form? Because the court will not release funds on request alone. The judge must see sworn evidence that supports payment. The Accountant will act only on a proper court order. Your affidavit gives the court confidence that payment is safe and correct. It avoids later disputes about who was entitled and in what amount.

Typical usage scenario:

A court may have ordered sale proceeds held until priority issues were decided. After judgment, you move for payment to the winning party. A lien claim was vacated by money paid into court. After the action ends, the party entitled seeks payment out. A settlement for a child was approved with funds held until the child’s 18th birthday. The now‑adult files an affidavit to receive the money. An estate trustee could not locate a beneficiary and paid the legacy into court. The beneficiary is found and moves for payment. In each case, Form 72B sets out the key dates, the order or consent, and the requested payment directions.

Form 72B is standard across Ontario’s Superior Court of Justice. It uses clear statements in numbered paragraphs. You attach exhibits that prove the facts. The draft order relies on what you swear in the affidavit. If your affidavit is complete and clear, the order process is faster. If it is vague, the court may refuse the motion or seek more evidence.

When Would You Use a Form 72B- Affidavit (Motion for Payment Out of Court)?

You use this form when you want funds released from the Accountant of the Superior Court of Justice to the person entitled. You wait until the reason for the deposit is resolved. That could be a final order, a consent, or a condition satisfied by time or event. Then you prepare your affidavit to show that payment out is proper and safe.

Practical examples:

• You posted money to vacate a construction lien. The lien action was dismissed or settled. You now want the security back. Your Form 72B identifies the lien court file, the amount paid in, the dismissal or consent, and the payee. You ask that the security be returned or paid as directed.
• You had a settlement for a minor approved. The court ordered that the settlement be paid into court. The order said the funds stay until the child turns 18. The child is now 18. Your affidavit attaches proof of age and the original order. It asks for payment to the now‑adult beneficiary. If the order sets extra conditions, you confirm they are met.
• You dealt with a dispute over sale proceeds. The judge ordered proceeds held pending further order. The court has now decided priorities. You act for the successful party. Your affidavit exhibits the reasons or order. It requests payment of the amount awarded, plus any accrued interest.
• You are an estate trustee who paid a legacy into court for a missing heir. You have now located the heir. You attach proof of identity and entitlement. You ask for payment of the legacy to that person. If there are other heirs, you confirm they do not oppose payment.
• You posted security for costs or undertook to pay funds into court to get an order. The case is over and your liability is resolved. You ask that the security be returned. Your affidavit shows there are no outstanding costs orders that would claim it.
• You act for an insurer or surety that paid money into court to resolve competing claims. A final judgment directs who gets what. Your affidavit recites the judgment and interest. It asks for payment to the named payees as per the judgment.

Typical users include litigants, estate trustees, beneficiaries, insurers, sureties, lien claimants, mortgagees, judgment creditors, and corporate officers. Counsel of record often prepare and swear on information and belief. Self‑represented parties can swear based on personal knowledge. In all cases, the affidavit must be specific, complete, and supported by exhibits.

Legal Characteristics of the Form 72B- Affidavit (Motion for Payment Out of Court)

Form 72B is a sworn affidavit filed in a court proceeding. It is legally binding because you swear or affirm its contents. You do this before a commissioner for taking affidavits in Ontario. You must tell the truth. False statements can lead to serious penalties. The court relies on your affidavit to make a payment order. The Accountant follows that order to release funds.

Enforceability rests on three pillars. First, compliance with the Rules and any prior court orders. Your motion must be properly brought. Your affidavit must give the necessary facts. Your exhibits must be legible and complete. Second, clear entitlement. You must show that you or your client is the proper payee. If there is more than one claimant, you address each claim. If consents exist, you attach them. If a judgment decided entitlement, you exhibit it. Third, precision in the order. The draft order must match the affidavit. It must name the payee exactly. It must identify the fund and account clearly. Ambiguity can block payment.

The court will consider whether any appeal or stay remains. If the time to appeal has not expired, expect a question. Your affidavit should confirm that time has run or that any appeal is resolved. If the original order set conditions, you must prove they are met. Examples include filing releases, serving notices, or reaching a date such as a beneficiary’s 18th birthday.

If a person under disability is involved, special care applies. Settlement funds are often held until court approval or majority. Payment out to a minor usually needs a proper order or a guardian of property with authority. Your affidavit should set out the capacity facts and attach required approvals. The court protects vulnerable persons and will not shortcut these steps.

Accuracy in identity is critical. The payee name on the order must match government ID or the exact legal name. For payments to lawyers’ trust accounts, include the firm’s full legal name and address. Attach a trust account confirmation if requested. If payment goes to a corporation, use the exact registered name. If it goes to an estate, identify the estate and the estate trustee with authority.

The Accountant will pay principal and accrued interest, less any statutory fees if applicable. Your affidavit should address interest. If the court set a different interest direction, say so. If you seek a split payment, allocate amounts clearly. If taxes or statutory deductions apply, note them. If costs are payable out of the fund, include them and the basis.

Finally, service and notice matter. The court may require you to serve your motion on all persons who may claim the fund. If the file shows other interested parties, serve them. Your affidavit of service or a statement of consent supports enforceability. If someone objects, the court may require a hearing before ordering payment.

How to Fill Out a Form 72B- Affidavit (Motion for Payment Out of Court)

Use these steps to prepare a complete, clear affidavit.

1) Gather what you need.

• Court file number and style of cause.
• The order or judgment that led to the deposit.
• The Accountant’s receipt or reference number if available.
• Any consents signed by all interested parties.
• Proof of entitlement, such as settlement minutes or releases.
• Proof of identity for the payee, if needed.
• For minor funds, proof of age or guardianship authority.
• Payment instructions, including payee name and address.
• A draft order for payment out.

2) Set up the caption.

At the top, insert the court name and court office. Use the exact court file number. Use the exact style of cause. Do not adjust party names. If the proceeding has been discontinued, keep the original style. Identify this as an “Affidavit (Motion for Payment Out of Court).”

3) Identify yourself as the deponent.

State your full name and role. For example: “I, [name], am the plaintiff.” Or “I am the lawyer for the defendant.” If you are swearing on information and belief, say so. State how you know the facts. For example: “I have reviewed the file and court records.”

4) Describe the fund held in court.

Set out how and when money was paid into court. Identify who paid it and why. Include the amount and date of deposit. Include the Accountant’s receipt or reference number if you have it. Attach that as Exhibit A. Example: “On March 4, 2023, the defendant paid $50,000 into court as lien security. The Accountant’s Receipt No. 123456 is attached as Exhibit ‘A’.”

5) Explain why payment out is now proper.

State the order, consent, or event that entitles payment. Attach the key documents. Label each exhibit clearly. Example: “On January 10, 2024, the court dismissed the plaintiff’s action. A copy of the order is attached as Exhibit ‘B’.” Or: “I turned 18 on May 2, 2025. My birth certificate is Exhibit ‘B’.”

6) Confirm there are no barriers.

Address appeal rights and any stays. Example: “No appeal was filed. The time to appeal has expired.” Address conditions in the original order. Example: “All releases have been signed. Copies are Exhibit ‘C’.” If consents exist, say that all parties consent and attach them.

7) State the exact payment requested.

Be precise. Identify the payee by full legal name. State whether you seek principal and accrued interest. State any set‑offs, costs, or fees. If payment should be split, provide each allocation. Example: “Pay $50,000 plus accrued interest to ABC Limited.” Or: “Pay $45,000 to XYZ LLP, in trust for the defendant, and pay the balance to the plaintiff.”

8) Give clear payment instructions.

Provide a mailing address for a cheque. If you request electronic payment, provide required details. Many orders direct payment to a lawyer’s trust account. If so, provide the firm name and address. Attach a trust account confirmation if needed. Do not include personal banking details in a public filing unless required. You can request delivery care of counsel.

9) Cover special categories.

For funds for minors, set out the minor’s birth date and attach ID. Quote the part of the approval order that governs release. If payment goes to a guardian of property, attach proof of appointment. For estates, identify the estate and attach the Certificate of Appointment if relevant. For corporations, include evidence of corporate name if there may be confusion.

10) Include a statement on notices and service.

State who you served and when. If you rely on consent, confirm you have written consent from all who might claim the fund. If there is a person you could not locate, explain the steps you took. The court decides if notice was enough.

11) Add a concluding request.

Ask the court to order the Accountant to pay out as requested. Ask for any other directions needed. For example, directions about interest, fees, or delivery. Keep it simple and specific.

12) Attach your exhibits.

Label exhibits A, B, C, etc. Each exhibit should have a cover page with the exhibit letter. Include:

• Accountant’s receipt or confirmation.
• The order, judgment, or settlement approval.
• Written consents or releases.
• Proof of age, identity, or authority.
• Payment instructions or trust confirmation.
• Draft order for payment out.

Make sure copies are readable. Black out personal identifiers only if allowed and not essential.

13) Swear or affirm the affidavit.

Sign in front of a commissioner for taking affidavits in Ontario. The commissioner signs and dates the jurat. The place and date must appear. Remote commissioning may be possible. Follow all identification steps if done remotely.

14) File and serve your motion materials.

File your notice of motion, Form 72B affidavit, and draft order. Pay any filing fee. Serve all parties and any other interested person. If the payment is on consent, file the written consents. If a judge has directed a specific process, follow that direction.

15) Present the motion and obtain the order.

Depending on the court, your motion may proceed in writing. If the judge signs the order, get a sealed copy. Deliver it to the Accountant as directed by the court office. Include any required cover letter or requisition. The Accountant will then process the payment.

Common pitfalls to avoid:

• Using the wrong court file number or office.
• Failing to attach the deposit receipt or prior order.
• Not addressing appeal timelines or conditions.
• Naming the payee incorrectly or inconsistently.
• Omitting consents or proof of entitlement.
• Leaving payment instructions vague.

Keep your affidavit concise but complete. Use numbered paragraphs. Use plain language. One fact per paragraph is best. Make it easy for the judge to follow the story of the fund. Show how it came in. Show why it should go out. Show exactly how to pay it. If you do that, the order will likely issue without delay.

Legal Terms You Might Encounter

• Affidavit means a written statement of facts that you swear or affirm are true. In this form, you tell the court who you are, what funds are in court, and why you should be paid. Your affidavit is evidence. The court relies on it to decide if payment should be made.
• Deponent is the person who swears or affirms the affidavit. If you sign Form 72B, you are the deponent. You must have personal knowledge of the facts, or clearly say what is based on information and belief and name the source.
• Commissioner for taking affidavits is the official who administers your oath or affirmation. You must sign the affidavit in front of a commissioner or an equivalent official. The commissioner confirms your identity and signs and stamps the form.
• Motion is a formal request asking the court for an order. Your affidavit supports a motion for payment out of court. You usually file it with a notice of motion. The court may decide with or without a hearing, depending on the circumstances.
• Payment out of court refers to funds held by the court that you ask to be released. Money may have been paid into court by a party, a stakeholder, or under an earlier order. Your affidavit explains why those funds should be paid to you or another payee.
• Order is the court’s written decision. You need an order authorizing payment out of court. The affidavit helps the court decide to make that order. You often attach a draft order to show the exact wording you want.
• Court file number is the unique number assigned to the case. You must include it on the affidavit so the court can match your request to the correct file. Use the number shown on earlier documents in the case.
• Service means delivering court documents to every required party. You often must serve your affidavit and notice of motion on anyone affected by the payment. Your affidavit should explain who you served and how, or you should file separate proof of service.
• Exhibit is a document attached to your affidavit to support your facts. In this context, typical exhibits include receipts showing funds paid into court, prior orders, settlement terms, and consent letters. Each exhibit must be marked and referenced correctly.
• Entitlement is the legal basis for receiving the funds. Your affidavit should connect the dots between the funds in court and your right to be paid. You can do this by pointing to a prior order, settlement, or clear terms that allocate the money.
• Interest is the additional amount that may have accumulated on funds in court. If you seek interest, explain the rate, the start date, your calculation method, and the date to which you calculated. Attach a clear calculation as an exhibit if helpful.

FAQs

Do you need a notice of motion as well as Form 72B?

Yes. An affidavit supports a motion, but it does not make the request on its own. File a notice of motion that states the relief you seek. Use Form 72B as your evidence. Attach a draft order to show the exact language for payment out of court.

Do you need consent from other parties?

Not always. If an earlier order or settlement clearly directs the payment and identifies the payee and amount, you may not need consent. If the entitlement or amount is disputed, consent helps. If you have consent, attach it as an exhibit. If not, be ready to explain your entitlement and serve everyone affected.

Do you have to attend a hearing?

It depends on the court’s practice and the nature of your motion. If your materials are complete, uncontested, and routine, the court may decide on the written record. If there is any dispute or the court wants clarification, you may need to attend. Your notice of motion should indicate whether you seek a written hearing or an attendance.

Do you need to attach proof that the funds are in court?

Yes. Attach proof of payment into court or a statement showing the funds being held. This might be a receipt, a previous order directing payment into court, or a registry statement. The court needs to see that the funds exist and match the amount you seek.

Do you need to calculate interest?

Only if you ask for it. If you seek principal plus interest, say so clearly. State the rate, start date, and the date your calculation runs to. Give a simple table or calculation as an exhibit. If the rate or interest period is not clear from an order or agreement, explain why your calculation is reasonable.

Do you have to serve everyone or only the opposing party?

Serve every person who might be affected by the payment. This typically includes any party with a potential claim to the funds. If you believe someone is not affected, explain why in your affidavit. When in doubt, serve. It reduces the risk of delay or later challenges.

Can you request payment to a third party, such as a client trust account?

Yes, if that is appropriate and supported. Say exactly who should receive the funds, the mailing address, and any reference details. Explain why payment to that person or account is proper. If you are a lawyer seeking payment to a firm trust account, confirm your authority and the client’s instructions.

What if your affidavit has a mistake after commissioning?

Do not alter a sworn affidavit. If the mistake is minor, you can file a supplementary affidavit that corrects or clarifies the error. If the mistake affects key facts, swear a new affidavit. Withdraw or replace the earlier filing as needed, and serve the updated materials.

Do you need original signatures?

The court accepts affidavits sworn or affirmed before an authorized official. Some courts accept electronic commissioning and digital signatures. Follow the commissioning rules that apply to your case. If in doubt, use a traditional in-person commissioning and a wet-ink signature.

How quickly will payment be made after the order?

Timelines vary. After you receive the signed order, submit it promptly to the office that holds the funds. Include any required request form, banking or payee details, and identification. Processing can take days to weeks. Follow up if you do not receive payment within a reasonable time.

Checklist: Before, During, and After the Form 72B- Affidavit (Motion for Payment Out of Court)

Before signing

• Court file number and full style of cause (all party names).
• Proof of funds paid into court (receipt or registry statement).
• Prior orders, settlement terms, or directions showing entitlement.
• Consents from affected parties, if available.
• Exact amount you seek: principal and, if applicable, interest.
• Interest details: rate, start date, calculation as of a specific date.
• Payee information: full legal name, mailing address, contact details.
• Payment instructions: cheque payable to whom or deposit details.
• Identification requirements for payment processing, if any.
• Draft order for payment out of court.
• Service list with addresses and emails for all required parties.
• Proposed hearing method: in writing or with an attendance.
• Any deadline that affects the funds (for example, per an earlier order).
• Your commissioning plan: when and where you will swear the affidavit.

During signing

• Caption: court file number, court location, and style of cause are correct.
• Your name and role are stated accurately and consistently.
• The amount requested matches the evidence and draft order.
• Dates are correct and formatted consistently.
• Exhibits are labeled (Exhibit A, B, C) and referenced in the text.
• Each exhibit cover page is signed and sealed by the commissioner, if required.
• Interest calculation is clear and matches the dates and rate you state.
• Service details are accurate, or you plan to file proof of service separately.
• The affidavit states what you know personally and what is on information and belief.
• The commissioner’s signature, name, title, and expiry (if any) are complete.
• Every page of the affidavit and exhibits is legible and in order.
• No blanks remain. Strike through unused spaces or write “N/A” as appropriate.
• Any handwritten changes are initialed by you and the commissioner.
• Contact details for you or your representative are on the face or a cover.

After signing

• File the notice of motion, Form 72B affidavit, exhibits, and draft order.
• Pay any filing fee and record the receipt number.
• Serve all required parties with the filed materials.
• File proof of service before the hearing or decision date.
• Book a hearing or mark the motion for written hearing, as required.
• Calendar all dates: service deadlines, filing deadlines, and hearing date.
• Prepare a short outline of argument, if needed.
• Bring or submit a clean draft order in editable and signed formats as required.
• After you receive the signed order, deliver it to the office holding the funds with payment instructions.
• Keep a full copy set of everything you filed and served.
• Track payment status and follow up until funds are received.
• Securely store the signed order and payment records.

Common Mistakes to Avoid Form 72B- Affidavit (Motion for Payment Out of Court)

• Don’t forget to prove your entitlement. Consequence: The court may refuse the motion. Attach the prior order, settlement, or other clear basis that shows you should be paid.
• Don’t omit proof that funds exist. Consequence: The court cannot order payment without evidence that the money is in court. Include a receipt or registry statement.
• Don’t miscalculate interest. Consequence: The court may reduce or deny the interest portion, or adjourn the motion. Show your rate, dates, and math, and cap interest to the date of your calculation.
• Don’t fail to serve everyone affected. Consequence: The court may adjourn or set aside the order later. Serve all potential claimants and file proof of service.
• Don’t use vague payee details. Consequence: Payment can be delayed or misdirected. Give the full legal name and mailing address, and any reference your payee needs.
• Don’t skip proper commissioning. Consequence: An improperly sworn affidavit may be rejected. Sign in front of a commissioner and ensure their details are complete.
• Don’t mismatch amounts across documents. Consequence: The court may question accuracy and adjourn the motion. Align the sums in your affidavit, exhibits, and draft order.
• 9. What to Do After Filling Out the Form Form 72B- Affidavit (Motion for Payment Out of Court)
• File your motion materials. Submit your notice of motion, Form 72B affidavit, exhibits, and draft order. Pay the filing fee. Ensure the court stamp is visible on the copies you will serve.
• Serve all required parties. Deliver the filed materials to everyone affected by the payment. Follow the service method allowed for your motion. Track dates and methods for each person served.
• Confirm or book the hearing. If your motion proceeds in writing, file any required confirmation. If an attendance is needed, book the date and time. Check any confirmation forms and timelines and file them on time.
• Prepare for questions. Bring a concise outline that summarizes your entitlement, amount, interest, and service. Include an exhibit list and a one-page chronology. Keep it simple and factual.
• Attend the hearing if required. Be ready to address entitlement, service, and the exact payment details. Have clean copies of your materials and the draft order. If the judge or officer requests changes to the draft, make them promptly.
• Obtain the signed order. Ask for a signed order that authorizes payment out of court and names the payee. Confirm the amount, interest, and any directions about costs or deductions. Get both a signed copy and an electronic version if available.
• Submit the order to the office holding funds. Send the certified order to the office that holds the funds in court. Include any required request form, the payee’s legal name, address, and any banking or mailing instructions. If identification is needed to process payment, include it.
• Track payment. Ask for an expected processing time. Follow up if the funds do not arrive within that timeframe. Keep a record of all communications. If payment will be by cheque, confirm the mailing address and add a reference line if needed.
• Handle partial payments or competing claims. If the order authorizes only a partial amount, confirm the remaining balance in court. If someone raises a competing claim after service, pause and consider whether you need to adjourn, seek directions, or file a reply affidavit.
• Amend if errors surface. If you find a material error before the hearing, file a supplementary affidavit with corrected information and serve it. If the order has already issued and needs correction, seek a corrected order promptly and give notice to affected parties.
• Close the loop. After you receive payment, notify interested parties if required. Update your internal records and trust accounting. Store all documents securely. If funds were paid to a client, provide a clear remittance with the order attached.