Koble (Bankrupt), Re, (1995) 167 A.R. 269 (QB)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 10, 1995
• Citations: (1995), 167 A.R. 269 (QB)

Koble (Bankrupt), Re (1995), 167 A.R. 269 (QB)

MLB headnote and full text

In The Matter Of the Bankruptcy of Donald Francis Koble

(Action No. BKCY 45065)

Indexed As: Koble (Bankrupt), Re

Alberta Court of Queen's Bench

In Bankruptcy

Judicial District of Edmonton

Funduk, Registrar in Bankruptcy

March 10, 1995.

Summary:

A wife obtained an order for exclusive possession of the marital home. Her husband moved out. He later assigned himself into bankruptcy. A further order in the marital action required that the property be listed for sale. The trustee in bankruptcy held that the bankrupt's half interest in the marital home was exempt. A creditor challenged the trust­ee's decision.

The Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, affirmed the trustee's decision.

Bankruptcy - Topic 485

Property of bankrupt - Exemptions or exclusions - Homestead property - [See Bankruptcy - Topic 486 ].

Bankruptcy - Topic 486

Property of bankrupt - Exemptions or exclusions - Proceeds from sale of exempt property - A wife obtained an order for exclusive possession of the marital home - Her husband moved out - He later assigned himself into bankruptcy - A further order in the marital action required that the property be listed for sale - The trustee in bankruptcy held that the bank­rupt's half interest in the marital home was exempt - A creditor challenged the trust­ee's decision - The Registrar of the Alberta Court of Queen's Bench, in Bank­ruptcy, affirmed the trustee's decision, holding that there was no abandonment of the home where the bankrupt did not voluntarily give it up as his residence.

Cases Noticed:

McAteer, Re (1981), 32 A.R. 248 (Q.B.), not folld. [paras. 13, 15].

Davis (Bankrupt), Re (1991), 116 A.R. 17; 80 Alta. L.R.(2d) 100 (C.A.), refd to. [para. 13].

Holthuysen (Trustee) v. Holthuysen (1986), 49 Alta. L.R.(2d) 25 (C.A.), refd to. [para. 13].

Gruber (Bankrupt), Re (1993), 143 A.R. 301; 11 Alta. L.R.(3d) 342 (Q.B. Bktcy.), folld. [para. 13 et seq.].

Laurentian Bank of Canada v. Woo (1994), 163 A.R. 217 (Q.B.), refd to. [paras. 13 et seq.].

Starko v. Starko (1992), 134 A.R. 48; 16 C.B.R.(3d) 236 (Q.B.), dist. [para. 21].

Statutes Noticed:

Exemptions Act, R.S.A. 1980, c. E-15, sect. 1(1)(k) [para. 12].

Interpretation Act, R.S.A. 1980, c. I-7, sect. 10 [para. 12].

Law of Property Act, R.S.A. 1980, c. L-8, Part III [para. 23].

Counsel:

Peat Marwick Thorne Inc., as the trustee;

J.M. Culkin (Gledhill Reid), for Victoria A. Archer.

This application was heard by Funduk, Registrar in Bankruptcy, of the Alberta Court of Queen's Bench, In Bankruptcy, Judicial District of Edmonton, who delivered the following decision on March 10, 1995, which was filed on the same date.