Smith v. Schaffner, 2007 NSSC 210

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 21, 2007
• Jurisdiction: Nova Scotia
• Citations: 2007 NSSC 210;(2007), 257 N.S.R.(2d) 58 (SC)

Smith v. Schaffner (2007), 257 N.S.R.(2d) 58 (SC);

    820 A.P.R. 58

MLB headnote and full text

Temp. Cite: [2007] N.S.R.(2d) TBEd. JL.012

Kim Arlene (Schaffner) Smith (petitioner/applicant) v. Barry James Karl Schaffner (respondent)

(1209-000263; 2007 NSSC 210)

Indexed As: Smith v. Schaffner

Nova Scotia Supreme Court

Warner, J.

July 4, 2007.

Summary:

Schaffner failed to pay arrears of child support and an execution order was issued in the amount of $3,510. The sheriff served the execution order on Schaffner's bank. Schaffner held a joint account with his partner, but the bank declined to turn over any of the contents of the account. An application was brought for enforcement of the execution order against the joint account.

The Nova Scotia Supreme Court directed the bank to deliver 45% of any monies in the joint account as of the time of re-service of the execution order.

Banks and Banking - Topic 2733

Bank accounts - Joint accounts - Title to account - Resulting trust in favour of original owner of funds - [See Banks and Banking - Topic 2734 ].

Banks and Banking - Topic 2734

Bank accounts - Joint accounts - Attachment - Schaffner owed child support arrears - An execution order was served on Schaffner's bank - Schaffner held a joint account with his partner, but the bank declined to turn over any of its contents - An application was brought for enforcement of the execution order against the joint account - At common law, a joint bank account could not be attached under a garnishee order in respect of a debt owed by only one of the joint holders - The Nova Scotia Supreme Court stated that the common law permitted judgment debtors to hide monies from execution creditors in an inequitable, unfair and illogical manner and that it would be preferable for this area of the law to be legislatively reformed - The court considered that at least 45% of the contributions to the account since January 1, 2006, had been made by Schaffner - The court held that based on the presumption of resulting trust Schaffner's interest in the account was at least 45% - Civil Procedure Rule 53.02(1)(a) provided that an execution order shall direct the Sheriff to seize "any property in which the judgment debtor has an interest" - The court stated that if the interest of the execution debtor in the property of a joint account was established, there was no reason that a creditor should not be entitled to have the sheriff attach the execution debtor's interest in the property by garnishee - The court directed the bank to deliver 45% of any monies in the joint account as of the time of re-service of the execution order.

Creditors and Debtors - Topic 4346

Garnishment by creditor - Property liable to garnishment - Joint bank accounts - [See Banks and Banking - Topic 2734 ].

Trusts - Topic 1901

Resulting trusts - General principles - General (incl. when available) - [See Banks and Banking - Topic 2734 ].

Cases Noticed:

MacDonald v. Tacquah Gold Mines Co. (1884), 13 Q.B.D. 1 (C.A.), refd to. [para. 9].

Hirschhorn v. Evans, [1938] 3 All E.R. 491 (C.A.), refd to. [para. 10].

Director of Support and Custody Enforcement (Ont.) v. Jones et al. (1991), 52 O.A.C. 47; 5 O.R.(3d) 499 (Div. Ct.), refd to. [para. 11].

Penney v. Canadian Imperial Bank of Commerce (1996), 145 Nfld. & P.E.I.R. 355; 453 A.P.R. 355 (Nfld. T.D.), refd to. [para. 11].

Pecore v. Pecore (2007), 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 12].

Saylor et al. v. Brooks (2007), 360 N.R. 327; 224 O.A.C. 382; 2007 SCC 18, refd to. [para. 12].

Niles v. Lake, [1947] S.C.R. 291, refd to. [para. 13].

Harvey Estate, Re (2006), 243 N.S.R.(2d) 109; 772 A.P.R. 109; 2006 NSSC 118, refd to. [para. 13].

Arab Bank v. Barclays Bank, [1954] 2 All E.R. 226, refd to. [para. 14].

Brewer v. Westminister Bank, [1952] 2 All E.R. 650 (Q.B.D.), refd to. [para. 14].

Noble China Inc. v. Lei, 1999 CarswellOnt 4244, refd to. [para. 25].

Bank of Nova Scotia v. Buonissimo Gourmet Specialties Inc. et al., [2006] O.T.C. Uned. 20; 2006 CarswellOnt 79 (Sup. Ct.), refd to. [para. 25].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 53.02(1)(a) [para. 22].

Authors and Works Noticed:

Baxter, Ian F.G., The Law of Banking (4th Ed. 1992), pp. 85 to 89 [para. 12]; 90 [paras. 12, 13]; 91 to 98 [para. 12].

Counsel:

W. Bruce Gillis, Q.C., for the petitioner;

Barry James Karl Schaffner, self-represented.

This application was heard on May 3 and June 21, 2007, at Kentville, Nova Scotia, before Warner, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 4, 2007.