Form 4B – Affidavit (Motion for Payment Out of Court)

Jurisdiction: Country: Canada | Province or State: Ontario

What is a Form 4B – Affidavit (Motion for Payment Out of Court)?

Form 4B is a sworn affidavit used in Small Claims Court. You file it to support a motion asking the court to release money held in court. The form sets out facts that show who is entitled to the funds and how much should be paid out.

This affidavit is evidence. You swear or affirm it before a commissioner for taking affidavits. The court relies on it to decide whether to issue a payment out order. The order directs the court’s Accountant to release the funds to the person named.

Who typically uses this form?

Judgment creditors often use it. So do successful plaintiffs seeking settlement money paid into court. Defendants may use it to reclaim their own deposit if conditions were not met. A trustee, estate representative, or assignee may also use it if they can prove entitlement. Lawyers and licensed paralegals file it on behalf of clients.

Why would you need this form?

Because money is sometimes paid to the court instead of directly to a party. That happens with garnishments, security deposits, or when a defendant pays money into court. The court holds the funds until there is a clear right to payment. A judge needs a record to make the order. Your sworn affidavit supplies that record.

Typical usage scenarios

You enforce a judgment by garnishment. The garnishee pays funds into the court. You now seek the release of the garnished money to you. Or a defendant paid the claimed amount into court to settle. The settlement was accepted. You now want the money released. Another scenario: competing claims exist over the same money. The court holds the money. You use the affidavit to explain your claim and request priority. There are also cases where a defendant deposited funds pending a motion or appeal. Once that is resolved, you can request payment out using this affidavit.

In all cases, Form 4B explains what was paid in, what is owed, and who should be paid out. It lists the judgment or order, shows the ongoing balance, and attaches proof. It ends with the relief you seek: an order to pay a specific amount to a named payee.

When Would You Use a Form 4B – Affidavit (Motion for Payment Out of Court)?

You use Form 4B when the Small Claims Court holds money related to your case. You then ask the court to release some or all of that money. This usually follows a judgment, a settlement, or enforcement steps. It can also follow a payment into court to secure a claim.

Consider a landlord who won a Small Claims judgment for rent arrears. The landlord garnished the tenant’s employer. The employer has been sending wage deductions to the court. The landlord now files a motion for payment out, supported by Form 4B. The affidavit shows the judgment amount, interest, and costs, and requests release.

Or consider a contractor who sued for unpaid invoices. The defendant paid the full amount into court to settle. The contractor accepted the settlement. The contractor now files Form 4B to ask for the release of the funds.

A business owner may use it after a bank account garnishment. The account holder’s bank sends funds to the court in response to a notice of garnishment. The business owner, as judgment creditor, then moves for payment out.

A defendant may also use this form. Suppose the defendant paid money into court to “pay into court” an amount they believe will satisfy a claim. If the claim is dismissed or settled in the defendant’s favour, the defendant seeks the money back. They use Form 4B to explain and request release.

Trustees and estate representatives may use this form. For example, where the entitled party died or assigned the claim. The trustee attaches proof of authority and requests payment out to the estate or trust.

You also use this form when there are disputed claims. The court may hold the money until a judge sorts out priority. Your affidavit sets out your entitlement, including dates, orders, and calculations. The judge then decides who gets paid and in what amount.

If you need to receive funds under an order and the Accountant holds them, you use Form 4B. It makes your request clear and supports it with sworn evidence.

Legal Characteristics of the Form 4B – Affidavit (Motion for Payment Out of Court)

Form 4B is a sworn or affirmed affidavit. It is legally binding because you declare, under oath or affirmation, that its contents are true. If you knowingly swear to false facts, you risk penalties. The court treats the affidavit as evidence. The judge can rely on it to make an order.

What ensures enforceability? Accuracy, proper format, and proper commissioning. Your affidavit must name the correct court and file number. It must identify the parties exactly as they appear on the court file. A commissioner for taking affidavits must administer the oath or affirmation. You must sign in the commissioner’s presence. The commissioner signs and adds their details. Exhibits must be attached and marked. These steps make your affidavit procedurally valid.

Substance matters too. You must show your right to the funds with clear facts. Attach the judgment or order. Show the amount paid into court. Provide a calculation of what is owed today. Account for any previous payments or credits. If interest is claimed, show how you calculated it. If your right flows through an assignment or estate, attach proof of authority. This evidence allows the judge to authorize payment out.

The court will not release funds without a legal basis. The judge must be satisfied that you are the person entitled to the amount requested. The affidavit aims to meet that test. It should anticipate questions the judge may ask. The affidavit should also be consistent with the court record. If there are competing claims, you should disclose them. Concealing material facts can delay or defeat your motion.

Finally, service and notice support fairness. While Form 4B is the affidavit, it is filed with a motion. The other interested parties will receive the motion. They can respond or appear. The judge will consider all materials, including your Form 4B, before making the order. The order then authorizes the Accountant to release the funds. That order is enforceable through the court.

How to Fill Out a Form 4B – Affidavit (Motion for Payment Out of Court)

Follow these steps to complete Form 4B clearly and correctly.

1) Confirm money is in court.

• Call or visit the court office for your file. Confirm there are funds held. Ask for the amount on deposit and any hold periods. Note the file number, courthouse address, and the names on file.

2) Gather your supporting documents.

• Judgment or order with date and terms.
• Any settlement or consent terms filed.
• Proof of payment into court or garnishment payments received by the court.
• Your up-to-date balance calculation, including interest if applicable.
• Proof of authority if you act for an estate, corporation, or assignee.
• Government-issued ID for commissioning.

3) Complete the heading (style of cause).

• Court file number: Copy the exact number from your case.
• Court address: Use the Small Claims Court location on your case file.
• Plaintiff(s) and Defendant(s): Use full legal names as shown in the claim and judgment. Do not use nicknames or short forms.

4) Identify the deponent.

• Insert your full name, address, and role (for example, plaintiff, defendant, judgment creditor, or authorized representative).
• If you are a representative, state your title and your authority to swear. Mention how you know the facts (personal knowledge and review of the file).

5) Write clear, numbered paragraphs of facts.

• Paragraph 1: State your role and knowledge. Example: “I am the plaintiff in this action and have knowledge of the facts.”
• Paragraph 2: Identify the judgment or order. Include the date, the judge (if known), and what it requires. Example: “On March 3, 2024, the court ordered the defendant to pay me $7,500 plus costs and post‑judgment interest.”
• Paragraph 3: Confirm funds held in court. State the amount and why they were paid in. Example: “The court holds $4,200 paid by [garnishee/employer] under a notice of garnishment dated June 1, 2024.”
• Paragraph 4: Provide a current balance calculation. Break it down: principal, costs, and interest. Then subtract any payments you received directly. Show the net amount owing. Refer to the attached schedule for details.
• Paragraph 5: Confirm there are no competing claims or explain any that exist. If there are other creditors or a payment hearing order, disclose that and explain why you are entitled to payment now.
• Paragraph 6: State the precise relief you seek. Example: “I request an order that the Accountant of the Superior Court of Justice pay $4,200, or such other amount as the court deems just, to [your full name or firm in trust], at [full mailing address].”
• Paragraph 7: Address special circumstances. If funds were deposited as security, explain that the condition for release has been met. If you represent an estate or assignee, state your authority and attach proof.
• Paragraph 8: List attached exhibits. Identify each document by letter and a short description. Example: “Exhibit A is the judgment dated March 3, 2024.”

Keep sentences short and factual. Use dates, amounts, and names precisely. Avoid argument. The affidavit is for facts, not submissions.

6) Attach exhibits properly.

• Mark each exhibit with a letter (A, B, C). On the first page of each exhibit, include an exhibit stamp or a typed statement. It should state, “This is Exhibit [letter] referred to in the affidavit of [your name] sworn [date].”
• Typical exhibits include the judgment or order, settlement terms, payment into court confirmation, and your interest and balance calculation.
• If you rely on records from someone else, say how you obtained and rely on them. For business records, say you keep them in the ordinary course of business.

7) Prepare a clear interest and balance schedule.

• If your judgment includes interest, state the rate and start date. If the judgment specifies a rate, use that. If not, use the default court rate.
• Show your calculation period, the rate, and the dollar result. Keep it simple. Example: “Post‑judgment interest at X% per year from March 3, 2024, to August 3, 2024, equals $Y.”
• List all payments received and dates. Subtract them from the running total. The final figure should match the amount you seek to be paid out. Attach this schedule as an exhibit.

8) State the payee and delivery details.

• Name the payee exactly as it should appear on the cheque. If you are counsel, you may request payment to your firm “in trust.”
• Provide the mailing address for the cheque. Include any file or reference number that helps identify your matter.

9) Review for consistency and completeness.

• Check that all names match the court record. Confirm the file number and courthouse address. Confirm totals and dates align across the affidavit and exhibits. Remove any blank spaces or stray notes.
• If you corrected any text, initial each change. Keep the document neat and legible.

10) Swear or affirm the affidavit before a commissioner.

• Do not sign in advance. Bring government-issued ID. Sign in front of the commissioner. The commissioner will complete the jurat. The jurat includes the place and date of commissioning and the commissioner’s signature and details.
• If you prefer an affirmation instead of an oath, tell the commissioner. Both are valid.

11) File your motion materials with the court.

• Form 4B supports your motion for payment out. File it with your motion form and any draft order. Check the court’s filing requirements. Some courts require electronic filing. Others accept in-person filing.
• Pay any filing fee, if required. Ask the clerk to confirm the next steps.

12) Serve any required parties.

• Serve the motion and your affidavit on anyone who may claim an interest in the funds. Typical recipients include the opposing party and any other creditor on the file. Use a method allowed by the rules. Keep proof of service.

13) Attend the hearing, if scheduled.

• Bring your originals and extra copies. Be ready to answer practical questions about your calculation and exhibits. If there is no opposition, the judge may grant the order based on your materials.

14) Obtain and use the order.

• If the motion is granted, obtain a copy of the signed order. The order will direct the Accountant to pay out the stated amount to the named payee. Confirm the amount and mailing details are correct on the order.
• Follow up with the court if you do not receive the cheque within the expected timeline.

Practical tips as you draft:

• Use the exact party names from your claim and judgment. Consistency avoids delays.
• Be precise with amounts. Round only if your judgment allows it. Show cents where relevant.
• Keep your affidavit factual. Avoid commentary or argument.
• If minors or incapable persons are involved, note any required approvals. You may need further orders before payment out.
• If there are multiple judgment creditors, address priority. If you hold a writ or prior garnishment, explain the timing and basis for priority.
• If the defendant has paid enough to satisfy the judgment, ask for the full amount on deposit, up to the balance owed. If too much is on deposit, ask for the correct amount, and say the remainder can remain on deposit or be returned as appropriate.

Example structure of your numbered facts:

• 1: I am the plaintiff and have personal knowledge of these facts.
• 2: On [date], judgment was granted in my favour for $[principal], plus costs of $[costs], and post‑judgment interest.
• 3: As of today, the outstanding principal is $[amount], plus interest as per the attached schedule.
• 4: The court received $[amount] on [dates] under a garnishment issued on [date].
• 5: There are no competing claims to these funds. No payment hearing order exists that restricts payment out.
• 6: I request an order that the Accountant pay $[amount] to [payee], at [address].
• 7: Exhibits A through D support the above, including the judgment, payment confirmations, and balance schedule.

By following these steps, you give the court a clear, reliable record. Your affidavit shows entitlement, the exact amount, and the payee details. That helps the judge issue a prompt order for payment out of court.

Legal Terms You Might Encounter

Affidavit: An affidavit is your sworn or affirmed written statement of facts. You sign it in front of a commissioner. For this form, the affidavit explains why you are entitled to money held by the court. The judge relies on your affidavit and any attached exhibits to decide whether to release funds.

Deponent: The deponent is the person who swears or affirms the affidavit. That’s you, or an authorized representative with first-hand knowledge. If you are a business, your deponent should be someone who knows the file. The deponent must be able to speak to every fact in the affidavit.

Commissioner for Taking Affidavits: This is the official who administers your oath or affirmation. Many court staff, lawyers, and licensed paralegals can act as commissioners. The commissioner witnesses your signature and completes the jurat at the end. The affidavit is invalid if it is not properly commissioned.

Motion: A motion is a formal request asking the court to make an order. In this context, you are asking the court to order payment out of court. The judge reviews your affidavit and supporting documents to decide the motion. The motion can proceed in writing or at a brief hearing.

Payment into Court: This is money deposited with the court instead of being paid directly to a party. It can happen after a judgment, a settlement, a garnishment, or by court direction. The court holds the funds until it decides who should receive them. Your motion seeks the release of those funds to you.

Accountant of the Superior Court of Justice: This is the court office that holds and pays out funds on court orders. In a Small Claims matter, funds paid into court are held by this office. When your motion is granted, the order directs the Accountant to issue payment. Accurate payee details help avoid delays.

Order: An order is the court’s decision, in writing, that tells someone to do something. You need an order directing payment out of court before the Accountant can release funds. You may bring a draft order to help the court. Once signed, the order must match the names and amounts in your affidavit.

Service and Proof of Service: Service means delivering documents to other parties in the way the rules require. Proof of service is a sworn statement confirming how and when you served them. If you must bring your motion “on notice,” you will need proof of service. Missing or late service can delay your motion.

Exhibits: Exhibits are documents attached to your affidavit. They are marked A, B, C, and so on, and referenced in the text. Typical exhibits include the judgment or order, proof of payment into court, and any settlement. Exhibits must be legible, complete, and properly labeled by the commissioner.

Entitlement and Priority: Entitlement explains why you should receive the money. Priority addresses whether anyone else has a better claim, such as another creditor. In your affidavit, you should explain both. If more than one person claims the funds, the court may need extra evidence or another hearing.

FAQs

Do you need a lawyer to file Form 4B?

You do not need a lawyer. Many people complete this form on their own. That said, you must provide clear facts and proper exhibits. If the case is complex, consider getting legal help.

Do you have to serve the other parties before the court releases money?

It depends on your situation and whether the rules require notice. If notice is required, serve all interested parties and file proof of service on time. If notice is not required, explain in your affidavit why notice is not necessary. When in doubt, give notice to avoid delay.

Do you need a hearing, or can the court decide in writing?

Many motions for payment out of court proceed in writing. The court decides based on your Form 4B and exhibits. If the judge needs more information, the court may schedule a brief hearing. You should be prepared to answer specific questions about entitlement.

What documents should you attach to your affidavit?

Attach the judgment or order that led to the funds being paid into court. Include proof that the money was deposited, such as a receipt or confirmation. If your claim is based on a settlement or release, attach those documents. If you rely on an assignment, attach the assignment agreement.

How do you show the amount you should receive?

State the amount held by the court and how you calculated what you seek. If you ask for interest or costs, explain the basis for each amount. Attach documents that support your numbers. Make sure the math in your affidavit matches your exhibits.

What if more than one person claims the same money?

Say so in your affidavit and explain why you have the first claim. Attach documents that show your priority. If the dispute cannot be resolved on the papers, the court may hold a hearing. Bring only the facts and documents that help the court decide entitlement.

How long does it take to receive funds after the order?

Processing time varies. After the order is signed, the court forwards it to the Accountant. The Accountant then issues payment by cheque or other available method. You can reduce delays by providing a correct payee name and current address.

What if your name has changed, or you represent a business that merged?

Explain the change in your affidavit and attach proof, such as a name change certificate or corporate records. Make sure the payee name on the order matches your current legal name. Clear documentation helps the Accountant release funds without extra queries.

Checklist: Before, During, and After

Before signing: Gather information and documents

• Court details:
• Court file number.
• Exact court location holding the funds.
• Names of all parties as they appear on the court record.
• Basis for payment:
• Judgment, order, or direction that led to payment into court.
• Settlement agreement, release, or written instructions, if applicable.
• Assignment documents if you took over someone else’s claim.
• Evidence of funds:
• Proof of payment into court (receipt, confirmation, or court notice).
• Any correspondence from the court Accountant about the funds.
• Entitlement and amounts:
• Amount paid in and any partial payments out.
• Your calculation of what remains and what you seek.
• Any interest or costs you claim, and why.
• Identity and payee details:
• Your full legal name and address that match your ID.
• Business details, if you are a company, including legal name and number.
• Correct payee name for the cheque or other payment method.
• Service, if required:
• Names and addresses for service for all interested parties.
• A plan for how and when you will serve and provide service.
• Practical items:
• A draft order, consistent with your affidavit and exhibits.
• A calendar to track deadlines and follow-ups.
• A clean copy of every exhibit, fully legible.

During signing: Verify the affidavit is complete and valid

• Confirm every blank is filled and all amounts are consistent.
• Check that names and dates match your exhibits exactly.
• Reference every exhibit in the text and mark each as Exhibit A, B, C, etc.
• Show the commissioner each page and initial any corrections.
• Choose an oath or affirmation and ensure the commissioner completes the jurat.
• Sign in blue or black ink in the commissioner’s presence.
• Keep the original exhibits attached to the affidavit after commissioning.
• Make a complete copy set for your records before filing.

After signing: File, notify, and store

• File the motion materials at the correct court location.
• Pay the required fee and keep the receipt.
• If notice is required, serve all interested parties promptly.
• File an affidavit of service before the motion is heard.
• Confirm whether the motion proceeds in writing or needs a hearing date.
• Bring identification and a draft order to any hearing.
• After the order is signed, confirm that the court sent it to the Accountant.
• Provide any payee or address confirmations the Accountant requests.
• Store a certified copy of the order and your filed affidavit.
• Diary a follow-up date to confirm issuance and delivery of payment.

Common Mistakes to Avoid

• Don’t forget to prove entitlement.
• Mistake: Stating you “should be paid” without attaching the judgment, settlement, or proof of deposit.
• Consequence: The court cannot verify your claim and may deny or delay the motion.

• Don’t use the wrong file number or court location.
• Mistake: Filing in the wrong office or mixing up file numbers.
• Consequence: Rejection at the counter, adjournment, or orders that cannot be enforced.

• Don’t skip service when notice is required.
• Mistake: Assuming others know about your motion and not serving them.
• Consequence: Adjournment, the order set aside, or costs against you.

• Don’t submit an uncommissioned or defective affidavit.
• Mistake: Signing without a commissioner or leaving the jurat incomplete.
• Consequence: Your affidavit is invalid; you must re‑commission and refile.

• Don’t mismatch names or amounts.
• Mistake: The payee name on your affidavit does not match the order or ID.
• Consequence: The Accountant cannot release funds until you fix the discrepancy.

What to Do After Filling Out the Form

1) Double-check for completeness

• Read the affidavit aloud once. Confirm every fact is supported by an exhibit.
• Confirm exhibits are labeled and referenced correctly.
• Make sure amounts are consistent across the affidavit, order, and exhibits.
• Confirm your contact details and payee name are current and accurate.

2) File the motion materials

• File Form 4B and all exhibits with the Small Claims Court office holding the funds.
• Pay the motion fee and keep proof of payment.
• Ask staff about the next step: decision in writing or scheduled hearing.

3) If notice is required, serve and file proof of service

• Serve each interested party in a valid method allowed.
• Use updated addresses and confirm delivery timelines.
• Prepare and file your affidavit of service by the required deadline.
• Keep copies of all service documents.

4) Prepare for a written decision or hearing

• If in writing, ensure the record is complete and organized.
• If a hearing is scheduled, bring:
• The filed affidavit and exhibits.
• A draft order that matches your request.
• Photo ID and any extra copies the court may need.
• Be ready to answer focused questions on entitlement and amounts.

5) Obtain and process the order

• When the order is signed, confirm it directs the Accountant to pay you.
• Check the payee name, address, and amount.
• If needed, provide the Accountant with any additional information they request.
• Ask about the method and timing of payment.

6) Receive funds and close the loop

• Deposit the cheque or confirm receipt of any other payment method.
• If funds are paid toward a judgment, update your records to show the credit.
• If the order resolves the whole issue, note the matter as complete in your file.
• Keep a certified copy of the order and proof of payment for your records.

7) If the motion is denied or adjourned

• Read the endorsement to see what is missing.
• Fix the issues. This may include better exhibits, proper service, or clearer math.
• File a fresh or supplementary affidavit that addresses the court’s concerns.
• Keep your filing and service proof organized for the next appearance.

8) If details change after filing

• Update your mailing address or payee information with the court and the Accountant.
• If you discover an error in your affidavit, prepare a correcting or supplementary affidavit.
• Serve any updates if required and file proof of service.

9) If others claim the money

• Consider whether a brief consent or release can resolve competing claims.
• If not, be ready to file additional evidence on priority.
• The court may schedule a short hearing to decide entitlement.
• Bring documents that show why your claim ranks first.

10) Record-keeping and retention

• Keep a full set of filed materials, exhibits, service proofs, and the final order.
• Store documents securely for your retention period.
• Keep notes on dates, calls, and payments for any future audit or inquiry.

Practical tips for smoother processing:

• Keep your affidavit factual. Avoid argument and opinion.
• Use consistent abbreviations and exhibit labels throughout.
• Put key dates and amounts in a simple table in your notes, even if not filed.
• If you reference a document in the affidavit, attach it as an exhibit.
• If you cannot attach an original, use a clear copy and swear to its accuracy.
• Follow up only after a reasonable processing period to avoid clogging lines.