Dumont (Bankrupt), Re, 2013 ABQB 692

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 25, 2013
• Citations: 2013 ABQB 692;(2013), 576 A.R. 197 (QB Reg.)

Dumont (Bankrupt), Re (2013), 576 A.R. 197 (QB Reg.)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.023

In The Matter of the Bankruptcy of Charlene Frances Marie Dumont

(B103 1692398; 2013 ABQB 692)

Indexed As: Dumont (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Schlosser, Registrar

November 26, 2013.

Summary:

A bankrupt applied for a conditional discharge. At issue was whether a lump-sum retroactive child support payment, received after the date of the bankruptcy, should be included in the calculation of the bankrupt's surplus income.

A Registrar of the Alberta Court of Queen's Bench held that a lump-sum payment of retroactive child support should not be included in the calculation of surplus income.

Bankruptcy - Topic 6709

Practice - General principles - Superintendent's Directives - [See first Bankruptcy - Topic 8922 ].

Bankruptcy - Topic 8922

Discharge of debtor - Conditional discharge - Considerations (incl. surplus income) - A bankrupt applied for a conditional discharge - At issue was whether a lump-sum retroactive child support payment, received after the date of the bankruptcy, should be included in the calculation of the bankrupt's surplus income - A Registrar of the Alberta Court of Queen's Bench held that this amount should not be included - The court stated that "Section 68 of the Bankruptcy and Insolvency Act was amended in the face of conflicting authorities at various levels. If Parliament had intended to include this amount in section 68 or, for that matter, if the Superintendent had intended to have retroactive lump-sum child support payments included in the calculation of surplus income, the Statute and the Directive could plainly have said so. It is my view that it is appropriate to presume that the silence with respect to this item is deliberate, particularly in the face of conflicting authority and reflects an intention to exclude this item. ... Interpreting section 68(2)(a) to include child support arrears would be contrary to the tenet of statutory interpretation that clear and unequivocal language is required to interfere with the vested rights of a third party, as would be the right of the child to the payments in arrears." - See paragraphs 4 and 25 to 28.

Bankruptcy - Topic 8922

Discharge of debtor - Conditional discharge - Considerations (incl. surplus income) - A bankrupt applied for a conditional discharge - At issue was whether a lump-sum retroactive child support payment, received after the date of the bankruptcy, should be included in the calculation of the bankrupt's surplus income - A Registrar of the Alberta Court of Queen's Bench held that this amount should not be included, but noted that "Excluding retroactive lump-sum child support payments from the surplus calculations should not be a hard and fast rule. It is possible to imagine a scenario in which a custodial parent had run up debts to discharge their fiduciary obligation to support their children and that this precipitated the bankruptcy. In those circumstances a creditor might fairly object to the exclusion of a lump sum payment in the sense that they are simply asking to be paid back. However, in the ordinary course, and without more, it is my view that neither section 68 of the [Bankruptcy and Insolvency Act] nor the Directive should bear that interpretation." - See paragraph 31.

Statutes - Topic 1565

Interpretation - Construction where meaning is not plain - Implied meaning - Cases where express language necessary - General - [See first Bankruptcy - Topic 8922 ].

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights - [See first Bankruptcy - Topic 8922 ].

Cases Noticed:

O'Brien (Bankrupt), Re, [2005] A.R. Uned. 278; 2005 ABQB 235, refd to. [para. 6].

Poffenbarger, Re (2002), 218 B.R. 379, refd to. [para. 7].

Landry (Bankrupt), Re (2000), 135 O.A.C. 381; 21 C.B.R.(4th) 58 (C.A.), refd to. [para. 13].

Neufeld (Bankrupt), Re (1993), 144 A.R. 182; 13 Alta. L.R.(3d) 16 (Q.B. Bktcy. Registrar), refd to. [para. 15].

Berton, Re (1994), 27 C.B.R.(3d) 238 (Ont. Gen. Div. Bktcy.), refd to. [para. 15].

Sobieski (Bankrupt), Re (1997), 117 Man.R.(2d) 27; 45 C.B.R.(3d) 272 (Q.B. Bktcy. Registrar), affd. (1997), 122 Man.R.(2d) 78; 2 C.B.R.(4th) 70 (Q.B.), refd to. [para. 16].

Nixon (Bankrupt), Re (2001), 206 Sask.R. 200; 25 C.B.R.(4th) 74 (Q.B. Reg.), refd to. [para. 16].

Henderson (Bankrupt), Re (2003), 345 A.R. 131; 2003 ABQB 877 (Reg.), refd to. [para. 17].

Bowerbank-Buckley, Re, [2007] O.J. No. 5722, refd to. [para. 18].

Duffney (Bankrupt), Re (2007), 318 N.B.R.(2d) 88; 821 A.P.R. 88; 32 C.B.R.(5th) 72 (Q.B. Bktcy. Reg.), refd to. [para. 18].

Smith (Bankrupt), Re (2009), 281 N.S.R.(2d) 379; 893 A.P.R. 379; 2009 NSSC 261 (Reg.), refd to. [para. 18].

Baird v. Neeb (2007), 30 C.B.R.(5th) 283, refd to. [para. 19].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1, refd to. [para. 22].

Horner v. Horner (2004), 191 O.A.C. 28 (C.A.), refd to. [para. 22].

D.B.S. v. S.R.G. (2005), 361 A.R. 60; 339 W.A.C. 60; 2005 ABCA 2, refd to. [para. 22].

Statutes Noticed:

Bankruptcy and Insolvency Act, S.C. 1985, c. B-3, sect. 68 [para. 4].

Authors and Works Noticed:

Sullivan on the Construction of Statutes (5th Ed.), pp. 244 [para. 26]; 711 et seq. [para. 28].

Counsel:

Freida Richer (Grant Thornton Alger Inc.), Trustee in Bankruptcy, for the Bankrupt.

This application was heard on September 25, 2013, before Schlosser, Registrar, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on November 26, 2013.