Ford (Bankrupt), Re, 2009 NSSC 124

• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 06, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSSC 124;(2009), 277 N.S.R.(2d) 1 (SC Reg.)

Ford (Bankrupt), Re (2009), 277 N.S.R.(2d) 1 (SC Reg.);

    882 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. AP.039

In The Matter Of the Bankruptcy of Joanne Marie Ford

(Court No. B-32631; Estate No. 51-810205; 2009 NSSC 124)

Indexed As: Ford (Bankrupt), Re

Nova Scotia Supreme Court

In Bankruptcy and Insolvency

Cregan, Registrar

April 16, 2009.

Summary:

A discharged bankrupt received an income tax refund resulting from non-refundable tax credits under the Income Tax Act for a caregiver amount which she was entitled to, but did not claim, for an eight year period before her bankruptcy. The bankruptcy trustee submitted that the refund was property of the bankrupt's estate under s. 67 of the Bankruptcy and Insolvency Act. The bankrupt claimed that the refund was part of her "total income" under s. 68.

The Registrar of the Nova Scotia Supreme Court, In Bankruptcy and Insolvency, held that the tax refund fell under total income under s. 68. It was not property under s. 67.

Bankruptcy - Topic 423

Property of bankrupt - Particular property - Revenue of bankrupt (incl. wages) - [See Bankruptcy - Topic 440.2 ].

Bankruptcy - Topic 440.2

Property of bankrupt - Particular property - Post-bankruptcy tax refunds - A discharged bankrupt received an income tax refund resulting from non-refundable tax credits under the Income Tax Act for a caregiver amount which she was entitled to, but did not claim, for an eight year period before her bankruptcy - The bankruptcy trustee submitted that the refund was property of the bankrupt's estate under s. 67 of the Bankruptcy and Insolvency Act - The bankrupt claimed that the refund was part of her "total income" under s. 68 - A Registrar of the Nova Scotia Supreme Court, In Bankruptcy and Insolvency, held that the tax refund was income under s. 68, not property under s. 67 - Section 68 applied to income which accrued prior to assignment but was not received by the time of discharge - The refund fell under "total income", which included "all revenue of a bankrupt of whatever nature or source" which was earned or in some other way crystallized during the bankruptcy period and was received during the bankruptcy or after discharge.

Cases Noticed:

Marzetti v. Marzetti (Bankrupt), [1994] 2 S.C.R. 765; 169 N.R. 161; 155 A.R. 340; 73 W.A.C. 340; 26 C.B.R.(3d) 161, folld. [para. 9].

Landry (Bankrupt), Re (2000), 135 O.A.C. 381; 21 C.B.R.(4th) 58 (C.A.), folld. [para. 17].

Peat Marwick Thorne Inc. v. Crowe et al. (1990), 97 N.S.R.(2d) 199; 258 A.P.R. 199 (T.D.), dist. [para. 20].

Bolz v. Farber (A.) & Partners Ltd., [2004] B.C.T.C. 1702; 7 C.B.R.(5th) 49 (S.C. Bktcy.), refd to. [para. 22].

Sobieski (Bankrupt), Re (1997), 122 Man.R.(2d) 78; 2 C.B.R.(4th) 70 (Q.B.), dist. [para. 26].

Nixon (Bankrupt), Re (2001), 206 Sask.R. 200; 25 C.B.R.(4th) 74 (Q.B. Bktcy. Registrar), dist. [para. 28].

Neufeld (Bankrupt), Re (1993), 144 A.R. 182; 22 C.B.R.(3d) 275 (Q.B. Bktcy. Registrar), dist. [para. 28].

Ruelland (Bankrupt), Re (2005), 235 N.S.R.(2d) 287; 747 A.P.R. 287; 2005 NSSC 207 (Bktcy. Registrar), refd to. [para. 33].

Byrne (Bankrupt), Re (2003), 336 A.R. 298; 41 C.B.R.(4th) 6 (Q.B. Bktcy. Registrar), refd to. [para. 34].

Devooght (Bankrupt), Re, [2008] N.S.R.(2d) Uned. 160; 2008 NSSC 291 (Bktcy. Registrar), refd to. [para. 35].

Statutes Noticed:

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

Authors and Works Noticed:

Houlden, Lloyd W., Morawetz, Geoffrey B., and Sarra, Janis P., Bankruptcy and Insolvency Law of Canada (3rd Ed.) (Looseleaf Update), para. F § 52(2) [para. 54].

Counsel:

Tim Hill, for the bankrupt, Joanne Marie Ford;

D. Bruce Clarke, for the Trustee, Salyzyn & Associates.

This application was heard on February 6, 2009, before Cregan, Registar of the Nova Scotia Supreme Court, In Bankruptcy and Insolvency, who delivered the following judgment on April 16, 2009.