Randell (Bankrupt), Re, (2015) 363 Nfld. & P.E.I.R. 160 (NLTD(G))

• Judge: Butler, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 14, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 363 Nfld. & P.E.I.R. 160 (NLTD(G))

Randell (Bankrupt), Re (2015), 363 Nfld. & P.E.I.R. 160 (NLTD(G));

    1129 A.P.R. 160

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. FE.006

In The Matter of the Bankruptcy of Donna Louise Randell;

 

And In The Matter of a Notice of Motion pursuant to section 178(1.1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as Amended.

(20120118144; 2015 NLTD(G) 10)

Indexed As: Randell (Bankrupt), Re

Newfoundland and Labrador Supreme Court

Trial Division (General)

Butler, J.

January 30, 2015.

Summary:

Randell filed for bankruptcy on February 22, 2012 and was discharged in June of 2014. Randell applied for an order under s. 178(1.1) of the Bankruptcy and Insolvency Act to the effect that s. 178(1)(g) of the Act did not apply to her bankruptcy. In practical terms, she sought an order that her absolute order of discharge released her from her student loan debts which totalled approximately $71,000.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application.

Bankruptcy - Topic 8804

Discharge of debtor - General principles - Considerations - Student loans - Randell began her university studies in Ontario in 2001 at the age of 42 and completed her undergraduate degree in health sciences, followed by a Master's degree in occupational therapy in 2007 - Upon graduation she worked two part-time jobs - In May of 2009, she accepted a full time position and earned an income of $51,473 - In July 2010, she accepted a position as an independent contractor in Hamilton, Ontario - The position required her to obtain an apartment in Hamilton and to commute to and from her home in London, Ontario - In 2010, she earned $66,086 - In February 2011, she and her husband made a joint consumer proposal pursuant to which she took responsibility for the couple's unsecured debt and her husband took responsibility for the secured debt associated with the house and two vehicles - In October 2011, she separated from her husband and moved to Corner Brook, N.L., where she accepted full-time permanent employment - Her 2011 income was $80,085 - In February 2012, she declared bankruptcy - She was discharged of the unsecured debt (with the exception of the student loans) on payment of $5,095.40 to the trustee - She earned $62,484 in 2012, and $74,663 in 2013 - Her anticipated income for 2014 was $74,300 - In 2014, she was discharged from bankruptcy - She applied for an order under s. 178(1.1) of the Bankruptcy and Insolvency Act to the effect that s. 178(1)(g) of the Act did not apply to her bankruptcy - In practical terms, she sought an order that her absolute order of discharge released her from her student loan debts which totalled approximately $71,000 - She was now age 56 and the mother of two children, ages 18 and 19, both of whom were in full-time attendance at school or university in Ontario - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that to succeed, Randell had to establish that she (1) acted in good faith and (2) would continue to experience financial difficulty to such extent that she would be unable to pay the debt - Until March 2012, when Randell made her last payment on her student loan, she acted in good faith - However, from that point onward she chose the expenses that she would meet from her healthy income and made no effort to contribute to the debt that had funded the education that lay behind her success - Further, she chose to use her surplus income to pay her children's cell phone bills and for trips to and from Ontario - She had not established either current financial hardship to such an extent that she was and would be unable to pay the debt or that she was foregoing other expenses to make payment on her loan - The court dismissed the application.

Bankruptcy - Topic 8988

Discharge of debtor - Liabilities not released by discharge - Student loans - [See Bankruptcy - Topic 8804 ].

Cases Noticed:

Cote (Bankrupt), Re, [2010] B.C.T.C. Uned. 490; 66 C.B.R.(5th) 45; 2010 BCSC 490, (Master), dist. [para. 8].

Minto (Bankrupt), Re (1999), 191 Sask.R. 1; 14 C.B.R.(4th) 235 (Q.B. Bktcy. Reg.), refd to. [para. 8].

Fournier (Bankrupt), Re, [2009] O.T.C. Uned. E30; 178 A.C.W.S.(3d) 28 (Sup. Ct. Bktcy. Reg.), refd to. [para. 23].

Dustow (Bankrupt), Re (1999), 193 Sask.R. 159; 14 C.B.R.(4th) 186 (Q.B. Bktcy. Reg.), refd to. [para. 26].

Hankinson (Bankrupt), Re (2009), 280 N.S.R.(2d) 266; 891 A.P.R. 266; 2009 NSSC 211 (Bktcy. Reg.), dist. [para. 29].

Kelly (Bankrupt), Re, [2000] O.T.C. Uned. C47; 20 C.B.R.(4th) 251; 101 A.C.W.S.(3d) 688 (Sup. Ct. Reg.), refd to. [para. 29].

Cusack (Bankrupt), Re (2014), 445 Sask.R. 1; 2014 SKQB 136 (Bktcy. Reg.), dist. [para. 31].

Counsel:

Conor E. Stack, for the applicant;

Christine Singh, for Student Loan Authorities.

This application was heard at St. John's, N.L., on October 1 and November 14, 2014, and January 26, 2015, by Butler, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on January 30, 2015.