Starko v. Starko, (1992) 134 A.R. 48 (QB)

Judge:Bielby, J.
Court:Court of Queen's Bench of Alberta
Case Date:November 13, 1992
Jurisdiction:Alberta
Citations:(1992), 134 A.R. 48 (QB)
 
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Starko v. Starko (1992), 134 A.R. 48 (QB)

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Danny Gary Starko (plaintiff) v. Sharon Lynn Starko (defendant)

(Action No. 8803-13289)

Indexed As: Starko v. Starko

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

November 13, 1992.

Summary:

A court ordered the sale of matrimonial property, with the wife's share paid into court. The husband was awarded costs pay­able out of the monies paid into court. The wife was an undischarged bankrupt. The issue was whether the husband or trustee in bankruptcy had priority to the monies.

The Alberta Court of Queen's Bench ruled that the wife's share in the sale proceeds were not exempt from the property divisible among her creditors. The wife no longer had an interest in the monies, accordingly, the monies were not available to the husband to pay his costs.

Bankruptcy - Topic 486

Property of bankrupt - Exemptions or exclusions - Proceeds from sale of exempt property - Matrimonial home - Section 1(1) of the Alberta Exemptions Act and s. 67(b) of the Bankruptcy Act combined to provide an exemption for the sale proceeds of an execution debtor's matrimonial home - The court ordered the sale of a matri­monial home, with the wife's share to be paid into court - The wife was an undis­charged bankrupt - The husband was awarded costs payable out of the funds paid into court - The husband and trustee in bankruptcy both claimed priority - The Alberta Court of Queen's Bench held that the exemption extended only to the pro­ceeds of sales forced as a result of seizure under a writ of execution and not to sales forced under other legislation - Not all court-ordered sales triggered the exemp­tion.

Cases Noticed:

Regal Distributors Ltd. v. Freele, [1931] 1 D.L.R. 943 (Alta. C.A.), refd to. [para. 17].

Finley, Re (1977), 7 A.R. 26; 4 Alta. L.R.(2d) 47 (Dist. Ct.), refd to. [para. 17].

McAteer, Re (1981), 32 A.R. 248; 38 C.B.R. 217 (Q.B. Master), refd to. [para. 17].

Patterson, Re (1990), 84 Sask.R. 160 (Q.B.), dist. [para. 20].

Higgins Co. v. McNabb, [1980] 2 W.W.R. 385; 2 Sask.R. 119 (C.A.), dist. [para. 20].

Harris v. Rankin (1887), 4 Man. R. 115, refd to. [para. 26].

Burns, Re (1977), 9 A.R. 413; 4 Alta. L.R.(2d) 258 (Q.B.), refd to. [para. 26].

Bocz v. Spiller (1905), 1 W.L.R. 366, affd. 2 W.L.R. 280 (Terr. C.A.), refd to. [para. 28].

Statutes Noticed:

Bankruptcy Act, R.S.C. 1985, c. B-3, sect. 67(b) [para. 12]; sect. 71(2) [para. 10].

Exemptions Act, R.S.A. 1980, c. E-15, sect. 1(1)(k) [para. 14].

Matrimonial Property Act, R.S.A. 1980, c. M-9, generally [para. 1].

Counsel:

B.T. Daly, for the plaintiff;

B. Fish, for the defendant;

Deloitte & Touche, on its own behalf as the defendant's bankruptcy trustee;

R. Bouvier, for the Legal Aid Society of Alberta.

This action was heard before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 13, 1992.

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