Protz (Bankrupt), Re, (1997) 159 Sask.R. 45 (QB)

• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 14, 1997
• Jurisdiction: Saskatchewan
• Citations: (1997), 159 Sask.R. 45 (QB)

Protz (Bankrupt), Re (1997), 159 Sask.R. 45 (QB)

MLB headnote and full text

Temp. Cite: [1997] Sask.R. TBEd. SE.026

In The Matter Of the Bankruptcy of Archibald William Protz.

Archibald William Protz (applicant) v. Angella Phyllis Protz (respondent)

(Court No. 2547)

Indexed As: Protz (Bankrupt), Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

MacPherson, C.J.Q.B.

August 14, 1997.

Summary:

In a division of matrimonial property, the wife was granted judgment for $135,982 and a charge was created in that amount against the matrimonial assets, including certain farm machinery and an RRSP. An order was subsequently made that the husband release the farm machinery to the sheriff for dispo­sition and that the RRSP be transferred to the wife. In the meantime, the husband had made an assignment in bankruptcy. The husband applied for an order that the wife was not a secured creditor within s. 2 of the Bankruptcy and Insolvency Act, or alterna­tively, that she was not a secured creditor within s. 70 of the Saskatchewan Farm Security Act.

The Saskatchewan Court of Queen's Bench dismissed the motion, holding that the wife was a secured creditor within s. 2 of the Bankruptcy and Insolvency Act.

Bankruptcy - Topic 3931

Secured creditors - What constitutes a secured creditor - Charging order (incl. on matrimonial property) - In a division of matrimonial property, the wife was granted judgment for $135,982 and a charge was created in that amount against the matri­monial assets, including certain farm machinery and an RRSP - An order was subsequently made that the husband release the farm machinery to the sheriff for disposition and that the RRSP be transferred to the wife - In the meantime, the husband had made an assignment in bankruptcy - The husband applied for an order that the wife was not a secured creditor within s. 2 of the Bankruptcy and Insolvency Act - The Saskatchewan Court of Queen's Bench held that the wife was a secured creditor within s. 2 of the Act.

Family Law - Topic 880.13

Husband and wife - Marital property - Distribution orders - Enforcement - Charging orders - [See Bankruptcy - Topic 3931 ].

Cases Noticed:

A.A. Electric Ltd. and Swan Electric Ltd., Re; A.A. Electric Ltd. and Swan Electric Ltd. v. Bank of British Columbia, Toh­can Ltd., Alberta, Department of Labour and Elbec Contractors Ltd. (1978), 21 A.R. 248; 89 D.L.R.(3d) 157 (T.D.), refd to. [para. 9].

McLean Co. v. Newton; Kaplan, Re, [1927] 1 D.L.R. 183 (Man. C.A.), refd to. [para. 12].

Bortoluzzi v. Kaplan - see McLean Co. v. Newton; Kaplan, Re.

Sara, Re (1985), 56 C.B.R.(N.S.) 282 (Ont. H.C.), refd to. [para. 13].

Authors and Works Noticed:

Houlden, Lloyd W., and Morawetz, Carl H., Bankruptcy Law in Canada (1997), p. 260, para. 9 [para. 9].

Counsel:

W.J. Hampton, for the applicant;

G. Richards, for the respondent.

This application was heard before MacPherson, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on August 14, 1997.