Currie (Bankrupt), Re, (2000) 258 A.R. 303 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 07, 2000
• Citations: (2000), 258 A.R. 303 (QB)

Currie (Bankrupt), Re (2000), 258 A.R. 303 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. FE.101

In The Matter Of The Bankruptcy of Danette Rae Michele Currie in the City of Fort Saskatchewan in the Province of Alberta (Maternity Leave)

Danette Rae Michele Currie (debtor) v. Faber and Company Inc. Trustee of the Estate of Danette Rae Michele Currie (trustee)

(BK03 71951)

Indexed As: Currie (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

February 7, 2000.

Summary:

A bankrupt applied to discharge a trustee's lien filed against her interest in her matrimo­nial home.

A Registrar in Bankruptcy of the Alberta Court of Queen's Bench, in a decision re­ported [1999] A.R. Uned. 594, dismissed the application. The bankrupt appealed.

The Alberta Court of Queen's Bench dis­missed the appeal.

Bankruptcy - Topic 483

Property of bankrupt - Exemptions or exclusions - Property exempt from seizure under provincial laws - [See Bankruptcy -Topic 493 ].

Bankruptcy - Topic 493

Property of bankrupt - Exemptions or exclusions - Marital property - Currie separated from her husband and left the marital home - She made an assignment in bankruptcy and claimed her portion of the matrimonial home as a non-exempt asset - She subsequently entered into a settlement agreement whereby she relinquished her interest in the marital home and the hus­band assumed the marital debts - She was discharged - The Alberta Court of Queen's Bench affirmed a Registrar's decision upholding the trustee's lien filed against Currie's interest in the matrimonial home -Currie had no exemption for her interest in the marital home - She was not residing there on the bankruptcy date and thus it was not her "principal residence" (Civil Enforcement Act (Alta.), s. 88) - The settlement agreement occurred after her assignment - Therefore, she had interest in the home to transfer - The husband's ex parte custody order and the commencement of divorce and matrimonial property pro­ceedings did not amount to a legal process forcing her to lose possession of her home.

Execution - Topic 747

General rules - Exemptions - Jointly owned property - [See Bankruptcy - Topic 493 ].

Execution - Topic 748.1

General rules - Exemptions - House - [See Bankruptcy - Topic 493 ].

Words and Phrases

Principal residence - The Alberta Court of Queen's Bench discussed the meaning of these words as used in s. 88(g) of the Civil Enforcement Act, S.A. 1994, c. C-10.5 - See paragraphs 17 to 26.

Cases Noticed:

Wilson Bankrupt, Re (1996), 178 A.R. 237; 110 W.A.C. 237; 37 Alta. L.R.(3d) 260 (C.A.), refd to. [para. 16].

Holthuysen, Re, [1986] A.J. No. 1013 (C.A.), refd to. [para. 16].

Clarke Bankrupt, Re, [2000] B.C.T.C. 1 (S.C. Master), refd to. [para. 17].

Hetherington, Re (1910), 3 Sask. L.R. 232; 14 W.L.R. 529 (T.D.), refd to. [para. 24].

McAteer, Re (1981), 32 A.R. 248; 38 C.B.R.(N.S.) 217 (Q.B.), refd to. [para. 29].

Koble Bankrupt, Re (1995), 167 A.R. 269 (Bktcy. Reg.), refd to. [para. 32].

Gruber Bankrupt, Re (1993), 143 A.R. 301 (Q.B. Bktcy.), refd to. [para. 33].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 67 [para. 13].

Civil Enforcement Act, S.A. 1994, c. C-10.5, sect. 88(g) [para. 14].

Marital Property Act, R.S.A. 1980, c. M-9, sect. 1(d) [para. 37]; sect. 7 [para. 38].

Authors and Works Noticed:

Alberta Law Reform Institute, Enforcement of Money Judgments (1991), vol. 1, c. 9, p. 255 [para. 34].

Black's Law Dictionary [para. 21].

Canadian Law Dictionary [para. 21].

Oxford Dictionary (2nd Ed.), [para. 21].

Counsel:

E.L. Martin (McBean Becker), for Danette Rae Michele Currie;

S.N. Mandziuk (Barr Picard), for Sean William Currie;

F.H. Belzil (Buckell Taskey & Belzil), for the Trustee.

This appeal was heard before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 7, 2000.