Weiss (Bankrupt), Re, 2002 ABQB 783

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 16, 2002
• Citations: 2002 ABQB 783;(2002), 325 A.R. 19 (QB Reg.)

Weiss (Bankrupt), Re (2002), 325 A.R. 19 (QB Reg.)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. OC.141

In The Matter Of the Bankruptcy of Norman Alfred Weiss

(Action No. BK03-84801; 2002 ABQB 783)

Indexed As: Weiss (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Breitkreuz, Registrar in Bankruptcy

August 28, 2002.

Summary:

Weiss and his wife divorced on September 16, 1999. On November 29, 1999, Mr. Weiss transferred his half-interest in the matrimonial home to Ms. Weiss, though both continued to live in the home. Mr. Weiss made an assignment into bankruptcy on August 4, 2000. The trustee took the position that the transfer was a settlement contrary to s. 91 of the Bankruptcy and Insolvency Act. Ms. Weiss' solicitor informed the trustee that Ms. Weiss would not object to a division of the equity in the home between herself and the trustee, though he expected the $20,000 principal residence exemption would go to Mr. Weiss. Ms. Weiss died and the home was sold. At issue was whether Mr. Weiss was entitled to the $20,000 exemption.

A Registrar of the Alberta Court of Queen's Bench, In Bankruptcy, held that Mr. Weiss was entitled to the exemption.

Bankruptcy - Topic 481

Property of bankrupt - Exemptions or exclusions - General - A Registrar of the Alberta Court of Queen's Bench, In Bankruptcy, held that exemptions could survive a settlement that was voided under s. 91 of the Bankruptcy and Insolvency Act because the settlement had been made within one year of the bankruptcy - See paragraph 10.

Bankruptcy - Topic 485

Property of bankrupt - Exemptions or exclusions - Homestead property - Weiss and his wife divorced on September 16, 1999 - On November 29, 1999, Mr. Weiss transferred his half-interest in the matrimonial home to Ms. Weiss, though both continued to live in the home - Mr. Weiss made an assignment into bankruptcy on August 4, 2000 - The trustee took the position that the transfer was a settlement contrary to s. 91 of the Bankruptcy and Insolvency Act - Ms. Weiss' solicitor informed the trustee that Ms. Weiss would not object to a division of the equity in the home between herself and the trustee, though he expected the $20,000 principal residence exemption would go to Mr. Weiss - Ms. Weiss died and the home was sold - A Registrar of the Alberta Court of Queen's Bench, In Bankruptcy, held that Mr. Weiss was entitled to the $20,000 exemption.

Bankruptcy - Topic 7322

Setting aside transactions prior to bankruptcy - Settlements - Void settlements - [See Bankruptcy - Topic 481 and Bankruptcy - Topic 485 ].

Bankruptcy - Topic 7327

Setting aside transactions prior to bankruptcy - Settlements - Settlements of exempt property - [See Bankruptcy - Topic 481 ].

Cases Noticed:

Hirani (Bankrupt), Re (1993), 144 A.R. 39 (Q.B.), refd to. [para. 4].

Abba (Bankrupt), Re (1998), 230 A.R. 185 (Q.B.), folld. [para. 4].

Ramgotra (Bankrupt), Re, [1996] 1 S.C.R. 325; 193 N.R. 186; 141 Sask.R. 81; 114 W.A.C. 81, refd to. [para. 9].

Royal Bank of Canada v. North American Life Assurance Co. - see Ramgotra (Bankrupt), Re.

Sawatsky (Bankrupt), Re (2001), 295 A.R. 282; 28 C.B.R.(4th) 116 (Q.B. Bktcy. Reg.), refd to. [para. 78].

Holthuysen (Trustee of) v. Holthuysen (1986), 49 Alta. L.R.(2d) 25 (C.A.), folld. [para. 11].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 67(1)(b) [para. 7]; sect. 91(1) [para. 6].

Counsel:

K. Rowan (Ogilvie LLP), for the trustee;

F.C. MacKay (Cummings Andrew & MacKay), for the bankrupt.

This application was heard on April 16, 2002, by Breitkreuz, Registrar in Bankruptcy, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on August 28, 2002.