Collins (Keith G.) Ltd. v. McKenzie, 2005 MBCA 35

• Judge: Philp, Monnin and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 25, 2004
• Jurisdiction: Manitoba
• Citations: 2005 MBCA 35;(2005), 192 Man.R.(2d) 191 (CA)

Collins Ltd. v. McKenzie (2005), 192 Man.R.(2d) 191 (CA);

    340 W.A.C. 191

MLB headnote and full text

Temp. Cite: [2005] Man.R.(2d) TBEd. AP.002

Keith G. Collins Ltd., as Trustee of the Estate of Denis Donald McKenzie a Bankrupt (applicant/appellant) v. Sharon Ann Jean McKenzie (respondent/respondent)

(AI 03-30-05630; 2005 MBCA 35)

Indexed As: Collins (Keith G.) Ltd. v. McKenzie

Manitoba Court of Appeal

Philp, Monnin and Hamilton, JJ.A.

April 4, 2005.

Summary:

A bankruptcy trustee applied pursuant to Queen's Bench Rule 66 and ss. 19, 20 and 22 of the Law of Property Act for an order compelling the sale of the marital home formerly jointly owned and occupied by the respondent and her ex-husband, the bankrupt.

The Manitoba Court of Queen's Bench, in a decision reported at 172 Man.R.(2d) 50, dismissed the application. The court ordered that the sale of the home be postponed until the respondent's youngest child reached age 18, unless the parties otherwise agreed, with conditions. The trustee appealed. The respondent cross-appealed.

The Manitoba Court of Appeal dismissed the appeal and cross-appeal.

Bankruptcy - Topic 493

Property of bankrupt - Exemptions or exclusions - Marital property - A bankruptcy trustee applied for an order compelling the sale of the marital home formerly jointly owned and occupied by the respondent and her ex-husband, the bankrupt - Clearwater, J., ordered that the sale be postponed until the respondent's youngest child reached age 18 - It would be a significant economic hardship on the family if the respondent were required to either purchase the trustee's interest at this time or move and purchase comparable accommodation - Clearwater, J., declined to order occupation rent, but ordered the respondent to account for any reduction in value of the marital home - He ordered that the final accounting be deferred until the sale, at which time the trustee would be required to account to the respondent for 50% of the principal payments under the mortgage that she had paid since the date of separation from the bankrupt - The Manitoba Court of Appeal dismissed the trustee's appeal - An order of sale would be oppressive - See paragraphs 1 to 25.

Bankruptcy - Topic 6453

Administration of estate - Actions by trustee - Debtor's right of set-off against bankrupt - Clearwater, J., postponed the sale of a marital home formerly jointly owned and occupied by the respondent and her ex-husband, now a bankrupt, until the respondent's youngest child reached age 18 - Clearwater, J., rejected the respondent's claim for a set-off of spousal and child support arrears accrued since the date of bankruptcy against any amount that she might be required to pay the trustee at the time of the sale of the home - The Manitoba Court of Appeal upheld the decision - The right of set-off had to exist at the time of bankruptcy - Further, the respondent was seeking a set-off for a liability that she had not incurred (she might or might not owe the trustee money at the time of sale) - Finally, any future obligation of the respondent to pay the trustee for its one-half interest in the marital home was not closely connected to support arrears that might be owing at that time - See paragraphs 26 to 35.

Family Law - Topic 761

Husband and wife - Actions between husband and wife - Property - Action for partition and sale of land - Bars - [See Bankruptcy - Topic 493 ].

Family Law - Topic 762

Husband and wife - Actions between husband and wife - Property - Action for partition and sale of land - Accounting and occupational rent - [See Bankruptcy - Topic 493 ].

Family Law - Topic 773

Husband and wife - Actions between husband and wife - Property - Where spouse declares bankruptcy - [See Bankruptcy - Topic 493 ].

Cases Noticed:

Yale v. MacMaster (1974), 3 O.R.(2d) 547 (H.C.), refd to. [para. 14].

Shwabiuk v. Shwabiuk (1965), 51 W.W.R. 549 (Man. Q.B.), refd to. [para. 18].

Winspear Higgins Stevenson Inc. v. Friesen, [1978] 5 W.W.R. 337 (Man. C.A.), refd to. [para. 18].

Woloshyn v. Woloshyn (1996), 109 Man.R.(2d) 35 (Q.B.), refd to. [para. 18].

K.L.V. v. A.L.V. (2000), 149 Man.R.(2d) 29; 2000 MBQB 56, refd to. [para. 18].

Payne v. Payne (2002), 164 Man.R.(2d) 161; 2002 MBQB 89, refd to. [para. 18].

Mellway v. Mellway (2004), 187 Man.R.(2d) 247; 330 W.A.C. 247; 2004 MBCA 119, refd to. [para. 23].

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385, refd to. [para. 28].

Canada Trustco Mortgage Co. v. Sugarman et al. (1999), 126 O.A.C. 253; 179 D.L.R.(4th) 548 (C.A.), refd to. [para. 28].

Synychych v. Synychych (1992), 79 Man.R.(2d) 200; 40 R.F.L.(3d) 237 (Q.B. Fam. Div.), dist. [para. 28].

Counsel:

R.W. Schwartz, for the appellant;

A.J. Stacey, for the respondent.

This appeal and cross-appeal were heard on November 25, 2004, by Philp, Monnin and Hamilton, JJ.A., of the Manitoba Court of Appeal. Monnin and Hamilton, JJ.A., delivered the following decision for the court on April 4, 2005.