Gabrielle (Bankrupt), Re, (2014) 304 Man.R.(2d) 215 (QB Reg.)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 15, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 304 Man.R.(2d) 215 (QB Reg.);2014 MBQB 77

Gabrielle (Bankrupt), Re (2014), 304 Man.R.(2d) 215 (QB Reg.)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. AP.022

In The Matter Of The Bankruptcy Of Michele Tara Dawn Gabrielle

MNP Ltd., as Trustees of the Estate of Michele Tara Dawn Gabrielle (applicant) v. Michele Tara Dawn Gabrielle (respondent)

(BK 10-03-01170; 2014 MBQB 77)

Indexed As: Gabrielle (Bankrupt), Re

Manitoba Court of Queen's Bench

Brandon Centre

Harrison, Registrar

April 15, 2014.

Summary:

Gabrielle filed her initial assignment in bankruptcy in April 2004 and was discharged in August 2005. Gabrielle filed her second assignment in September 2009 and was discharged in November 2010. In February 2013, Gabrielle filed adjustments to her personal income tax returns for the years 2003 to 2012, claiming disability tax credits arising from the care of her mother. Canada Revenue Agency (CRA) responded that the request had to come from the trustee in bankruptcy. As a result of the trustee's filings, CRA sent a refund in the total amount of $13,575.09 to the trustee. The trustee applied for an order affirming it as the trustee for Gabrielle with approval to retain the income tax refund for the benefit of unsecured creditors. Gabrielle asserted that the funds should be released to her.

A Registrar of the Manitoba Court of Queen's Bench allowed the trustee's application.

Bankruptcy - Topic 428.1

Property of bankrupt - Particular property - Disability tax credit refund - [See Bankruptcy - Topic 440.2 ].

Bankruptcy - Topic 440.2

Property of bankrupt - Particular property - Post-bankruptcy tax refunds (incl. child tax benefits) - Gabrielle filed her initial assignment in bankruptcy in April 2004 and was discharged in August 2005 - Gabrielle filed her second assignment in September 2009 and was discharged in November 2010 - In February 2013, Gabrielle filed adjustments to her personal income tax returns for the years 2003 to 2012, claiming disability tax credits arising from the care of her mother - Canada Revenue Agency (CRA) responded that the request had to come from the trustee in bankruptcy - As a result of the trustee's filings, CRA sent a refund in the total amount of $13,575.09 to the trustee - The trustee applied for an order affirming it as the trustee for Gabrielle with approval to retain the income tax refund for the benefit of unsecured creditors - Gabrielle asserted that the funds should be released to her - A Registrar of the Manitoba Court of Queen's Bench allowed the trustee's application - The law regarding income tax refunds was clarified by amendments to s. 67 of the Bankruptcy and Insolvency Act, governing all assignments after July 7, 2008 - Although Gabrielle's first assignment predated the amendments, the funds issued to the trustee could not be allocated between the two bankruptcies - Gabrielle's last bankruptcy was filed well after July 7, 2008 - She was bound by the amendment - The disability tax credit refund was property of the bankrupt under s. 67(1)(c) - This included the 2005 adjustment and the amounts related to the years between the first discharge and the second assignment - See paragraphs 8 to 19.

Cases Noticed:

Koenne (Bankrupt), Re, [2010] O.A.C. Uned. 453; 65 C.B.R.(5th) 294; 2010 CarswellOnt 5388 (C.A.), refd to. [para. 10].

Potter (Bankrupt), Re (2010), 252 Man.R.(2d) 14; 2010 MBQB 36 (Reg.), refd to. [para. 13].

Ford (Bankrupt), Re (2009), 277 N.S.R.(2d) 1; 882 A.P.R. 1; 2009 NSSC 124 (Bktcy. Reg.), refd to. [para. 13].

Ronald (Bankrupt), Re (2008), 231 Man.R.(2d) 87; 437 W.A.C. 87; 2008 MBCA 104, refd to. [para. 18].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 67(1)(c) [para. 5].

Authors and Works Noticed:

Bennett, Frank, Bennett on Bankruptcy (16th Ed.), p. 1347 [paras. 11, 13].

Office of the Superintendent of Bankruptcy Canada, Transitional Provisions-Explanatory Note (November 6, 2009), generally [para. 16].

Counsel:

Bradley J. Milne, as Trustee;

M.T.D. Gabrielle, appeared in person.

This application was heard by Harrison, Registrar, of the Manitoba Court of Queen's Bench, Brandon Centre, who delivered the following reasons for judgment on April 15, 2014.