Schabert (Re), 2016 ABQB 82

Court of Queen ’ s Bench of Alberta Citation: Schabert (Re), 2016 ABQB 82 Date: 20160208 Docket: B101 824982 Registry: Calgary In the Matter of the Bankruptcy of Stewart Allen Schabert _______________________________________________________ Memorandum of Decision of J. Farrington , Registrar in Bankruptcy _______________________________________________________ [ 1 ] This matter came before me on a bankruptcy list on January 22, 2016. The bankrupt is the sole Alberta Registries registered owner of a thirty foot 2003 Citation Supreme Holiday travel trailer.

Bromwich & Smith Inc. (the “Trustee”) seeks an order directing that the trailer be sold and the proceeds be paid to the estate. [ 2 ] The bankrupt was in a common-law relationship with Tracy Scanlon. The relationship lasted more than ten years from approximately April 1, 2001 to approximately October 1, 2012. The trailer appears to have been acquired during the relationship. [ 3 ] The bankrupt did not list the trailer in his Statement of Affairs. The explanation given was that he believed that he had agreed in a separation agreement to transfer ownership of the trailer to his former common-law spouse Ms.

Scanlon. [ 4 ] The evidence is unclear as to whether a formal separation and property contract was ever signed. The bankrupt first indicated that he thought that one was signed, but later indicated that he checked and it was not signed. None of that evidence is directly from the bankrupt. It is provided via the Trustee from information provided to the Trustee by the bankrupt. There has been no cross examination on that evidence, or for that matter, on the evidence of Ms. Scanlon. [ 5 ] The Trustee’s office swore an affidavit indicating that a Notice to Prove a Property Claim was served upon Ms.

Scanlon on or about September 9, 2015 pursuant to section 81(4) of the Bankruptcy and Insolvency Act RSC 1985 c. B-3 with follow-up thereafter. Without a response to the Notice to Prove Claim, the Trustee seeks an order permitting the trailer to be sold with all proceeds to the estate. [ 6 ] Ms. Scanlon appeared at the hearing of this matter with an affidavit sworn on January 22, 2016 in an attempt to prove her claim to at least some extent. Her evidence under oath in her affidavit is that the separation agreement was signed, and she includes an unsigned copy.

She attributes the lack of a signed copy to the bankrupt and various other factors since the separation. She does, however, also provide some evidence that from a banking perspective the trailer belonged to both herself and the bankrupt, and also from an insurance perspective that insurance was in both names. In addition, she provided some evidence that she has paid insurance on the trailer herself. [ 7 ] If the separation agreement was signed in 2013, it does provide that the trailer was Ms. Scanlon’s under the separation

arrangements. The Trustee makes no application suggesting that there was a preference or a settlement in the alternative. [8] The draft separation agreement names a lawyer for the bankrupt but not for Ms. Scanlon. Her independent advising lawyer isleft blank in the draft document. The named lawyer for the bankrupt in the draft document was Brickard Ratcliffe. There is no evidenceas to whether the Trustee followed up with Mr.

Ratcliffe in an effort to try and obtain a signed copy of the agreement. [9] I note, as well, that this was a common law situation as opposed to a matrimonial property situation so the Court may at leasthave some latitude to give effect to an agreement with less formality or to consider the matter in the absence of a formal agreement. [10] In addition, I do not have a copy of the Notice to Prove Claim and communicating materials before me.

Re Taylor VenturesLtd. (2005) 2005 BCSC 11 , 10 CBR (5th) 104 (BCSC) suggests that the communication of a clearly imposed deadline in thematerial served with the notice is a factor in assessing whether the 15 day deadline under section 81(4) will be strictly enforced. [11] In addition, there is no evidence as to whether the other provisions of the separation agreement were carried out.

For example,the separation agreement talks about what would happen with the house that the parties owned, and there is no evidence as to whetherthat provision was carried out, and also there is no evidence as to whether the bankrupt received any property under the separationagreement as recited in the draft agreement.

The unsigned copy of the separation agreement does say: At Paragraph 23…The Common Law Husband acknowledges that his one half share of such equity has been taken into account in thedistribution of property between the parties and the Common Law Husband waives and gives up any and all claims of any nature or kindwhatsoever, whether in law or in equity, at present or at any future time in and to the Lands.

And at Paragraph 26…The Common Law Husband shall transfer the 2003 Citation Supreme holiday trailer to the Common Law Wifeand the Common Law Wife shall retain sole and exclusive possession and ownership of the 2003 Citation Supreme holiday trailer freeand clear of any and all claims of the Common Law Husband. [12] I am reluctant to direct that there be a trial of an issue in relation to this matter, but I do not have sufficient evidence before meright now to make a reasonable determination of the issues pertaining to disposition of the trailer.

Accordingly, I am directing that theTrustee’s application be adjourned sine die. This leaves the application unresolved. The parties, namely the Trustee and Ms. Scanlon,shall have 60 days from the issuance of these reasons to file any further evidence which they wish to file, and then either of them are atliberty to return this application to an appropriate bankruptcy list on notice to the other, and to the bankrupt, for further disposition. Thepresiding Registrar may then be able to resolve the matter with the benefit of such further evidence, or give further directions as needed.

Heard on the 22nd day of January, 2016. Dated at the City of Calgary, Alberta this 8th day of February, 2016. J. Farrington Registrar in Bankruptcy Appearances: Bromwich & Smith Inc. Trustee of the Estate of Stewart Allen Schabert Tracy Scanlon for herself