Cameron (Bankrupt), Re, (2002) 312 A.R. 198 (CA)

• Judge: Ritter, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 07, 2002
• Citations: (2002), 312 A.R. 198 (CA);2002 ABCA 183

Cameron (Bankrupt), Re (2002), 312 A.R. 198 (CA);

    281 W.A.C. 198

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AU.038

In The Matter of the Bankruptcy of James Nelson Cameron

The Director of Maintenance Enforcement on behalf of Barbara Gail McKay (applicant/appellant) v. James Nelson Cameron (respondent)

(No.: 0203-0124-AC; 2002 ABCA 183)

Indexed As: Cameron (Bankrupt), Re

Alberta Court of Appeal

Ritter, J.A.

August 7, 2002.

Summary:

A trustee in bankruptcy paid in full a claim for maintenance arrears filed by the Director of Maintenance Enforcement less the statutory 5% levy paid to the Superintendent of Bankruptcy. The Director then asserted that the husband still owed support arrears equal to the 5% levy. The Director stated that the remaining debt should be paid either out of any surplus in the husband's bankruptcy estate or by the husband personally. The trustee applied for advice and directions.

The Registrar in Bankruptcy, in decisions reported [2001] A.R. Uned. 389 and [2002] A.R. Uned. 39, denied the Director's claim. The Director appealed.

The Alberta Court of Queen's Bench, in a decision reported 301 A.R. 228, dismissed the appeal.

The Director applied for leave to appeal.

The Alberta Court of Appeal, per Ritter, J.A., held that leave was not required because the point at issue involved future rights. The court held that it would have granted leave anyway.

Bankruptcy - Topic 6888

Practice - Appeals - Leave to appeal - The trial judge held that a maintenance debt being enforced by the Director of Maintenance on behalf of a maintenance creditor was paid in full when the maintenance creditor received 95% of the total amount owing to the maintenance creditor, and the Superintendent of Bankruptcy received its statutory levy of 5% - The Director sought leave to appeal - The Alberta Court of Appeal, per Ritter, J.A., held that leave was not required because the point at issue involved future rights, i.e., a right that came into effect once the bankruptcy concluded - The court held that it would have granted leave anyway because: (1) the issue was "a significant issue on appeal" given the number of bankrupt maintenance debtors; (2) the issue had never been litigated on appeal; and (3) the effect on the bankrupt here was not significant.

Cases Noticed:

Ditchburn Boats & Aircraft (1936) Ltd., Re (1938), 19 C.B.R. 240 (Ont. C.A.), refd to. [para. 4].

Catalina Exploration & Development Ltd., Re; Elias and Catalina Exploration & Development Ltd. v. Hutchison (1981), 27 A.R. 1; 14 Alta. L.R.(2d) 268 (C.A.), refd to. [para. 4].

Lemay v. Lamarre (1934), 16 C.B.R. 189 (Qué. C.A.), refd to. [para. 4].

TFP Investments Inc. (Bankrupt) v. Singhal et al. (1991), 44 O.A.C. 234; 3 C.B.R.(3d) 225 (C.A.), refd to. [para. 4].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 193(a), sect. 193(e) [para. 2].

Counsel:

R. Goulden, for the applicant/appellant;

The respondent appeared in person.

This application for leave to appeal was heard on July 24, 2002, by Ritter, J.A., of the Alberta Court of Appeal.

Ritter, J.A., delivered the following memorandum of decision on August 7, 2002.