2011 QCCA 235, 2011 QCCA 235

Unofficial English Translation Dawson (Syndic de) 2011 QCCA 235 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019179-084 (500-11-032395-085) DATE: February 9, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. GUY GAGNON, J.A.

IN THE MATTER OF THE BANKRUPTCY OF: FUI YAO DAWSON APPELLANT – Bankrupt debtor and ROYAL BANK OF CANADA RESPONDENT – Opposing creditor and DE BILLY TREMBLAY ET ASSOCIÉS INC., in its capacity as trustee IMPLEADED PARTY- Trustee JUDGMENT [ 1 ] THE COURT: On appeal from a judgment delivered from the bench on October 20, 2008 (reasons transcribed on October 30, 2008, and corrected on November 6, 2008), by the Superior Court, District of Montreal (the Honourable Mr.

Justice Pierre Journet), Bankruptcy Division, which allowed the respondent's appeal from a judgment rendered on July 18, 2008, by the registrar in bankruptcy (Mtre Pierre Pellerin), which ordered the appellant's conditional discharge from his debts. [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Léger J.A., with which Chamberland and Gagnon, JJ.A. agree: [ 4 ] ALLOWS the appeal in part for the sole purpose of substituting paragraph 31 of the judgment under appeal, as corrected, for the following paragraph: Order the bankrupt to pay the amount of $199,903.61 to the trustee of the estate in the bankruptcy of Fui Yao Dawson, for the benefit of the body of creditors, in equal and consecutive payments of $200 per month from the month of December of 2008, until the month of June of 2011, and to then reimburse the remaining balance owed in minimum $10,000.00 yearly increments, with the possibility of making anticipatory payments at all times on the balance owed. [ 5 ] WITH COSTS against the appellant.

JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. GUY GAGNON, J.A. Mtre Jean Lozeau JOLI-COEUR LACASSE For the appellant

Mtre Julie Frégeau GOWLING, LAFLEUR, HENDERSON For the respondent Date of hearing: September 16, 2010 REASONS OF LÉGER, J.A. [ 6 ] This appeal concerns the conditions required for the appellant's discharge from his bankruptcy, to which the Royal Bank of Canada ("RBC") is opposed after having granted him a loan to finance his studies. Unlike government loans, [1] this type of loan is not explicitly protected from opportunistic bankruptcies in the Bankruptcy and Insolvency Act [2] (" BIA "). This appeal considers the relevant criteria in matters involving discharge and the terms of reimbursement of such loans. I.

BACKGROUND [ 7 ] In broad strokes, the material facts necessary to understanding the present case are as follows. [ 8 ] The appellant, from Ghana, is a foreign student who arrived in Montreal in 1999 to study biochemistry. After receiving his bachelor’s degree in 2002, he worked at various odd jobs until the end of the summer of 2003.

He then decided to return to school to obtain a university degree in podiatry. [ 9 ] Admitted to the Faculty of Medicine at Finch University in Chicago, the appellant realized that he would be facing annual expenses of about US$40,000, that is, US$24,000 in school fees and about US$16,000 in living expenses. [ 10 ] In September of 2003, after obtaining a first student loan from the Quebec government and another from the SLM Corporation (Sallie Mae), an American company, the appellant called on the respondent to help him finance his schooling in the United States for the three years to come.

After reviewing his file and taking into account the fact that once the appellant completed his studies he would earn substantial income, the respondent made a Royal Credit Line Agreement for Students [3] available to him. Initially in the amount of $20,000 as at December of 2003, the appellant gradually increased this line of credit to $200,000, performing a final levy in the amount of $8,000 in May of 2007, a few weeks prior to obtaining his degree on June 4, 2007. [ 11 ] The appellant obtained this line of credit without having to offer security or a guarantor.

According to his explanations, he was to begin reimbursing the capital [4] of the accumulated debt only once he had obtained his first degree. [ 12 ] Once he obtained this degree, however, the appellant chose to perfect his specialization in podiatry for four more years by accepting a residency position in a Boston hospital. During that time, his income was approximately $2,500 per month (net) with foreseeable monthly expenses of approximately $2,300.

It was only upon finishing his residency, which was due to end in June of 2011, that his income would increase substantially to between US$93,000 and US$150,000, depending on the position he would then find. [ 13 ] In June of 2007, the respondent required that the appellant begin making monthly payments of $1,500 ($1,000 in interest and $500 in capital), which amount he refused to pay, arguing his financial incapacity to meet such an obligation during his residency. [ 14 ] In the fall of 2007, the appellant instead proposed to the respondent a deferral of the reimbursement of the capital until the end of his residency in June of 2011, while offering to pay monthly instalments of $200-300.

The respondent refused, but stated that it was amenable to an increase of the line of credit, which the appellant refused because he was wary of increasing his indebtedness. [ 15 ] Faced with this deadlock, the appellant made a voluntary assignment into personal bankruptcy on November 28, 2007, without first presenting a proposal in bankruptcy to the respondent, which might have allowed him to avoid bankruptcy. [5] [ 16 ] On June 13, 2008, at the end of the statutory time limit, the trustee brought before the Registrar in bankruptcy an application for discharge, which was opposed by the respondent [6] on the grounds that [translation] "it was a debt arising from a student loan from which the bankrupt could not be discharged". [ 17 ] At the hearing, the trustee's report identified a debt of $199,103.61 owed to the respondent and another of $57,170.49 owed to the Quebec department of education for a student loan, from which the appellant cannot be discharged pursuant to paragraph 178(1) (

g) of the BIA . The appellant also had a few other debts that were relatively unimportant or undeclared, including one in the amount of $20,361.58 owed to the American company, Sallie Mae. [ 18 ] The trustee foresees that the realization of the bankrupt's assets as a result of the assignment amounts to about $8,500. II. JUDICIAL HISTORY 1. Registrar's decision

[ 19 ] The respondent's opposition to the discharge of the bankrupt was heard on July 18, 2008, by Mtre Pierre Pellerin, the registrar in bankruptcy, who rendered his decision orally from the bench.

He ordered that the appellant be discharged of his debts on the following conditions: [translation] [6] ORDERS that the debtor be discharged on the condition that he pay to the trustee a monthly amount of $150 to be distributed among the creditors from December 1, 2008, to June 1, 2011, (date on which the bankrupt ends the practice of his profession as a resident podiatrist); [7] ORDERS that the debtor be discharged on the condition of payment of the above-mentioned monthly instalments and of the amount of $30,000, to be paid in $10,000 yearly instalments from 2011, until paid in full; [8] RESERVES the debtor's ability to meet the above-mentioned conditions in advance and thus to benefit from an anticipatory discharge. [ 20 ] He explained: [translation] This proposal, in light of all the circumstances, in light of the debtor's behaviour, in light of a risk that could have been assessed with, in my opinion, greater attention...greater scrutiny and maybe more detailed consideration, this risk that the opposing party chose to assume, in my opinion, was in every respect greater than the actual capacity of the debtor.

There is no question here of laying blame on the opposing creditor for giving individuals, like the debtor, the opportunity to pursue their studies. But, as lenders, we cannot fail to subscribe, to perform a thorough analysis of the risk we are undertaking and then, afterwards, attempt to impute this carelessness or this failure to a debtor. 2. Superior Court Judgment [ 21 ] The respondent appealed this decision before the Superior Court. The hearing took place on October 20, 2008, before the Honourable Mr.

Justice Pierre Journet, who set aside the registrar's decision. [ 22 ] At the end of his analysis, the judge found that the bank had not committed an assessment error when it granted a line of credit to the appellant. Additionally, the judge found that the conditions imposed by the registrar for the discharge of the bankrupt were too lenient.

He wrote: [translation] [18] In the case at hand, the Court is of the opinion that the bank did not have to perform a special risk assessment when it granted the loan to the bankrupt because the only risk it could foresee was the borrower failing his studies. [19] As to the security of the loan, the bank had it through the bankrupt’s eventual reimbursement capacity stemming from his anticipated income. [20] With respect, the Court does not share the opinion of Registrar Pellerin, who erroneously interpreted the legislative rule set out in the BIA regarding the reimbursement of 50% of the debt to be discharged. [21] The conditions for reimbursing the loan as decided by the registrar are contrary to the Act and to case law.

With great respect, the Court points out that the risk of failing out of school did not materialize and the security has not been modified.

Consequently, the Court does not see how it can allow an application for discharge without payment in full, as doing so would be contrary to the opposing creditor's rights and to public interest in general. [22] The Bankruptcy Court must not become an escape route permitting the cancellation of debts without consideration of the circumstances that led to the debtor's assignment in bankruptcy. [23] In the words of Osborne J. in Snedden , "It is incumbent upon the Court to guard against laxity in granting discharges so as not to offend against commercial morality". [24] Consequently, the Court sees no reason to cancel or reduce the bankrupt's debt since he will have the means to reimburse it as planned. [25] In the absence of reasons other than the desire to erase debts when the capacity to reimburse exists, the debtor cannot use bankruptcy as a means to erase debts incurred and loans granted in good faith. [26] To allow such a manoeuvre would go against both public order and public interest, which dictate that one's undertakings be honoured except in the specific cases provided for in the Act . [27] Considering that the bankrupt had no other reason justifying his failure to reimburse his debt, the Court cannot condone its reduction without jeopardizing the judicial system's credibility in matters of bankruptcy and insolvency. [ 23 ] After rendering judgment from the bench on October 20, 2008, and filing his reasons on October 30, 2008, the judge corrected the conclusions on November 6, 2008:

[translation] Orders the bankrupt to pay to the trustee in bankruptcy of Fui Yao Dawson the amount of $199,903.61, for the benefit of the Royal Bank of Canada, in equal and consecutive monthly payments of $200 from the month of December of 2008, to the month of June of 2011, and to then reimburse the balance of the outstanding sums in yearly instalments of at least $10,000. Orders that the bankrupt be discharged once the sums described above have been paid in full. III.

GROUNDS OF APPEAL [ 24 ] The appellant faults the trial judge for having improperly interpreted the evidence, improperly applied the accepted principles in matters of discharge, and imposed conditions on him that were too severe. [ 25 ] He also argues that the judge erred with respect to the payment terms.

First, the payments should not be made for the benefit of the respondent, but to the trustee for the benefit of the body of creditors. [7] Second, the judge should have left him the possibility of making anticipatory payments in order to be discharged more quickly, as the registrar had planned. [ 26 ] For the purpose of analysis, we will categorize these diverse grounds under two main headings: 1. Did the trial judge err with respect to the bankrupt's payment terms? 2. Did the judge improperly assess the evidence and err in his application of the principles of discharge? IV. ANALYSIS 1.

Did the trial judge err with respect to the bankrupt's payment terms? [ 27 ] In its statement, the respondent did not dispute the appellant's arguments concerning the payment terms, and at the hearing, it reiterated that it would defer to the Court's discretion on the matter. [ 28 ] With respect, as to the beneficiary of the payments, in light of the absence of explanations from the judge justifying his choice, I am of the view that he should not have departed from the general principle that payments are remitted to the trustee for the benefit of the body of creditors. [8] Subsection 176(3) of the BIA is unequivocal: 176 .

(3) Where a conditional order of discharge of a bankrupt is made providing for payment of a further dividend or sum of money by the bankrupt, all payments on account thereof shall be made to the trustee for distribution to the creditors. [ 29 ] This conclusion in the judgment a quo being wrong, I would intervene to correct the order so that any amounts to be paid shall be so paid to the trustee for the body of creditors. [ 30 ] I am also of the view that the second term should be made more flexible and should allow the appellant to make anticipatory payments, if circumstances allow him to do so, which would in turn enable him to be discharged more quickly. 2.

Did the judge improperly assess the evidence and err in his application of the principles of discharge? [ 31 ] The appellant submits that the registrar did not commit any error justifying the intervention of the Superior Court judge. He points out that he did not cause his insolvency, nor did he display any reprehensible conduct. His bankruptcy was caused by the respondent's refusal to reduce his monthly reimbursement payments before he completed his residency.

In these circumstances, no viable proposal in bankruptcy would have been possible for him. [ 32 ] Moreover, the appellant asks us to correct the approach taken, specifically with regard to the so-called rule raised by the judge in his reasons whereby, in order to obtain a discharge, 50% of a student loan must be reimbursed. [9] [ 33 ] As for the respondent, it argues that the judge of the Superior Court was justified in setting aside the registrar's decision because the latter had erroneously criticized the respondent for not sufficiently attending to its risk assessment.

In its view, the line of credit was granted to the appellant because of the income that it could rightly expect a medical student to earn upon finishing his studies. The appellant is about to complete the final part of his professional training in the expected period of time and without having suffered any misfortune. [ 34 ] The respondent maintains that it financed the higher education of the appellant, who thus acquired an intangible asset, exempt from seizure, that he will soon be able to use.

The respondent argues that in the present case, if the appellant were allowed to declare bankruptcy and be so easily discharged, the integrity of the student loan system would be threatened. [ 35 ] Finally, it argues that even if the period of time ordered by the judge of the Superior Court to reimburse the debt appears lengthy, it corresponds very closely to the initial period provided, except for an adjustment to take into account the evolution of the appellant's income. * * * * *

[ 36 ] The appellant faults the judge for writing, at paragraph 20 of the judgment under appeal, that the registrar had [translation] "incorrectly interpreted the legislative rule set out in the BIA regarding the reimbursement of 50% of the debt to be discharged"; he argues that, in so doing, the judge erroneously implied that the statute requires that 50% of the debt be reimbursed before the bankrupt's discharge may be ordered. [ 37 ] Obviously, and even if the judge's comments might be considered ambiguous, the judge did not state that the statute requires that every debtor reimburse 50% of his debts prior to being discharged.

There is no such rule according to the BIA , no more than there exists a rule requiring the debt to be reimbursed in full. Each case turns on its own facts. [ 38 ] The judge's comments quite probably concern paragraph 173(1) (

a) of the BIA regarding conditional discharge, which includes one of the facts that the judge took into account before rendering judgment: 173.

(1) The facts referred to in

section 172 are: (

a) the assets of the bankrupt are not of a value equal to fifty cents on the dollar on the amount of the bankrupt’s unsecured liabilities, unless the bankrupt satisfies the court that the fact that the assets are not of a value equal to fifty cents on the dollar on the amount of the bankrupt’s unsecured liabilities has arisen from circumstances for which the bankrupt cannot justly be held responsible; [ 39 ] That being said, I am of the opinion that the other grounds raised by the appellant cannot succeed. [ 40 ] The judge rightly found that the registrar had erred in faulting the respondent for improperly assessing its risk or for failing to pay sufficient attention to its assessment. [ 41 ] First, in granting the line of credit to the appellant, the respondent did not improperly assess its risk because the loan was granted with the view that the appellant would obtain well-paid employment once his training was completed.

Thus, the respondent’s only risk was that the appellant might fail to complete his professional training or to obtain the projected income. The appellant did obtain his degree in podiatry, however, was earning money during his residency, and there is every reason to believe that he will be earning the projected income as of June 2011. [ 42 ] In short, it was premature for the registrar to determine that the respondent had improperly assessed its risk because, in so doing, he considered the risk to stem from the disproportion of the amount loaned to the appellant and the income he earned during his residency.

This can only be assessed upon completion of the appellant's professional training, however, once he enters the job market. [ 43 ] Also, the appellant undoubtedly knew what expenses he would incur prior to undertaking his medical studies in the United States, which is reflected in his accumulated debt. Certainly, the aggregate of his various debts is not negligible, but we must keep in mind that his unprofitable financial situation is only temporary. Indeed, the appellant never alleged that he would be unable to pay his debt once his residency was completed.

Thus, the conditions for reimbursement established by the trial judge very closely correspond to the compromise the appellant had put to the respondent prior to his bankruptcy, except that they were adapted to take into account his more limited short-term financial means. [ 44 ] The judge was also right to conclude that the registrar applied the discharge principles improperly, which justified him in weighing up the evidence and substituting his own assessment. These criteria are: (

a) an honest but unfortunate person's right to start afresh; (

b) the prima facie right of creditors to be paid; (

c) the right of the public to trust in the system and in its integrity. [10] (

a) an honest but unfortunate person's right to start afresh [ 45 ] It is common ground that one of the objectives of the BIA is to enable the rehabilitation of individuals who, crumbling under their debt loads, merit a second chance and a fresh start. In Dolgetta, Re , Registrar J.B. Hanebury wrote the following in the context of an application for discharge: [43] Is Ms. Dolgetta an honest but unfortunate debtor who is entitled to a fresh start? In this case, as in Ament , the bankrupt is graduating with the education that she bargained for.

She, like many of her other fellow students, is completing her education with significant debt. Her misfortune was becoming involved in a negative personal relationship which resulted in depression and ultimately resulted in her working only on her Ph.D. and taking a leave from her medical studies until it was completed. However, I fail to see how this circumstance should result in an entitlement to a fresh start.

It hasn't led to a poor result; she will still have two degrees and a promising career. [11] [ 46 ] The same can be said of the appellant, who has not yet begun his professional career and whose financial situation is the result of his legitimate desire to acquire a high level degree that will serve as a springboard, once his residency is complete. [ 47 ] The appellant has not been unfortunate, quite the opposite. He successfully completed his studies and obtained a degree in podiatry, while continuing to travel and to lead a normal life.

What is more, from the moment his residency is completed in June of 2011, he will be able to rely on significant income, ranging from US$93,000 to US$150.000, and still more in the long term.

His expectations, therefore, remain unchanged since the line of credit was granted by the respondent. [ 48 ] There is nothing in the evidence to show any unforeseeable circumstance affecting the plan the appellant had initially made for himself, except his choice of filing for voluntary assignment into personal bankruptcy in November of 2007, citing the following grounds: "after failing to, obviously, have the bank work with me". Although the reimbursements that the appellant must make are spread over a lengthy period of time, this situation is no different from the one he had originally anticipated.

In short, everything unfolded as planned. [ 49 ] It is difficult to see, therefore, why he should benefit from a second chance. His indebtedness directly helped him to obtain an

intangible asset allowing him to optimistically consider a medical career with all the attending financial benefits. Seen from this angle, the hardly restrictive conditions set by the registrar to obtain his discharge might be interpreted as incentive to behave irresponsibly. (

b) the prima facie right of creditors to be paid [ 50 ] The evidence has shown that the respondent's claim represents 78% of the proved debts in the bankruptcy, the balance being due to the Quebec department of education, whose claim will not be extinguished by the appellant's discharge. His intangible durable asset, his degree in podiatry, will enable him to have the financial means to reimburse the amounts due to the respondent.

On this issue, Registrar Nettie had the following to say in Ament (Re) : [10] It is clear that the Bankrupt has no present income or ability to make payments, under the Superintendent's guidelines or otherwise, to his creditors. However, it is equally clear that the Bankrupt may reasonably expect to have significant earning potential in the years to come, utilizing his medical education. In fact, not only is it reasonable for him to expect this, but both RBC and the US lender have lent on this basis.

Nothing in the evidence detracts from the obvious conclusion that RBC, in particular, lent its funds to the Bankrupt not on the basis of his present ability to pay, but on the basis of his expected future to pay, and I so find. [12] [ 51 ] In Coffey (Re) , Registrar J. Orsborn aptly wrote the following, to the same effect: [33] Coffey will earn a modest income for the next three years. After that, and as anticipated when he applied for the line of credit, his income will rise substantially.

At that point he will begin to realize the benefit of the asset that he has acquired at least in part through the assistance of those who have financed his education. [34] While Coffey may need present relief from his obligation to pay his creditors – although such obligations were not being pressed prior to his bankruptcy – he does not require relief from those obligations once he achieves his anticipated earnings potential. Neither has it been demonstrated that once Coffey acquires his specialist credentials, he will legitimately require relief from a significant portion of those obligations.

To put it shortly, it appears that Coffey was advised to go into bankruptcy not because he needed relief from his creditors so he "could get back on his feet" and start again, but simply because it was thought that bankruptcy provided a legally- sanctioned way to avoid paying his debts. [13] [ 52 ] In short, the respondent gave the appellant credit based on his representations that his indebtedness would allow him to acquire a quality, durable, intangible asset: in light of the circumstances of the case at hand, it is therefore entitled to expect that its claim will be reimbursed. (

c) the right of the public to trust in the integrity of the system [ 53 ] In this case, the judge was correct to note that it could be offensive to commercial morality and to the integrity of the system if the appellant were allowed to get off so lightly. [ 54 ] Loans granted by financial institutions for post-secondary studies serve in some capacity as intermediate support for students who wish to pursue their studies. As noted above, this type of loan is not given the particular legislative treatment that is given to government student loans, [14] but it should nonetheless be treated similarly.

This was underlined in Korenic (Re) , [15] where the registrar wrote: [13] … However, I come to this conclusion, not because it is a loan called "student loan", but because it was a loan for the acquisition of a long term durable asset, which is incapable of realization by the Estate, except through the mechanism of conditional discharge payments. It cannot be seized, or sold, except by a bankrupt.

A bankrupt cannot be forced to work or utilize it, only incented through the imposition of payment terms on a bankrupt's discharge to realize on the asset and include the creditors in the fruits of that realization. [14] To my view, it is the nature of the asset acquired by the loan, and not the name of the loan, which attracts the same type of analysis as in the former student loan cases.

A similar analysis is occasionally applied where the dollar value of exempt assets is found by the Court to be unconscionably large and conditional payments are imposed on the discharge, notwithstanding the lack of income to fund them. In my view, the higher moral character attributed to loans of this type, is attributable not to the loan, but to the situation where there is a loan used to acquire an asset of the type described above, and found in the case at bar in the form of a professional degree.

It would be inappropriate to allow a bankrupt to keep such an asset without any realization on it for the benefit of creditors. To find otherwise would undermine public confidence in the insolvency system. It is trite law to point out that a discharge Court is charged with the balancing not only of the rights of a bankrupt to a fresh start, and the right of creditors to be repaid, but also maintaining the integrity of the insolvency system, and public confidence in it, as an integral part of our country's system of commerce. [ 55 ] Insley (Re) [16] is to the same effect.

Therein, Saskatchewan's Court of Queen's Bench wrote: [45] As noted, through her education, financed largely by the RBC, this bankrupt acquired a long term durable asset, and at that, a professional degree which is in demand and has the potential to generate a relatively high level of income. By law, assets vest in the trustee, however, an asset which is an ‘education’ cannot be realized upon for the benefit of creditors, and the only means to do so is by repayment of a significant amount owing.

At para. 15 in Re Ament, supra, Registrar Nettie said: “It would be offensive to commercial morality and, in my view, call the integrity of the insolvency system into question if this asset were not realized upon for the benefit of the creditors.” And in Re Saunders , supra , Registrar Funduk on the same point with similar facts observed at para. 14: “What is paramount here is the integrity of the bankruptcy process and the public’s perception of it.” [46] This bankrupt is an intelligent, well-educated woman who can expect a bright and promising career.

Like the bankrupt in Re Lopez , also a doctor, Registrar Herauf (as he then was), at para. 4 observed that he had: “received a highly sought after professional degree at the taxpayers expense, with the prospect of substantial income in the future.” See also Re Saunders, supra . [47] I am satisfied that hard work and effort by the bankrupt will result in a comfortable life for her. She acquired exactly what she bargained for – financial support for purposes of acquiring a long term, durable asset – and did so, in her own words, in the relative

comfort that easy credit affords. [ 56 ] This same reasoning was accepted by the registrar in Ament (Re) , [17] where the bankrupt was ordered to pay an amount corresponding to the totality of his indebtedness to the financial institution. [ 57 ] Lastly, in Dolgetta (Re) , [18] the registrar noted that public confidence in the integrity of the bankruptcy system required that bankrupt individuals in situations similar to that of the appellant not be discharged from a debt that enabled them to acquire a post- secondary education.

He concluded that the bankrupt was liable for the total debt due to the lending institution: [45] Finally, for the public to have confidence in the integrity of the bankruptcy system, Ms. Dolgetta should not be allowed to wash her hands of this debt. She will be left with a valuable asset, the fruits of which she will likely enjoy for the rest of her life. As the court has noted, a debtor can expect to make long-term payments for a lifelong asset. ... [47] In this case, Ms. Dolgetta states that she tried to renegotiate with the Royal Bank, to no avail.

The notes attached to the affidavit of the bank’s officer indicate that, at least once when renegotiation was apparently discussed, increased credit was sought. The evidence indicates that Ms. Dolgetta is seeking to avoid payment to her primary creditor, the Royal Bank. The integrity of the bankruptcy system requires that, in the facts of this case, this not be allowed to occur. Ms. Dolgetta hoped to obtain two degrees while most students were obtaining one. Her personal situation resulted in an adjustment to her timing.

This is not a reason to permit her to graduate almost debt- free, while other students will be shouldering heavy debt loads as they commence their medical careers. Public confidence in the bankruptcy system would be diminished. [ 58 ] It is self-evident that post-secondary education enables the acquisition of a durable and quality asset; in the present case, this intangible asset was acquired by the appellant thanks in part to the financing granted by the respondent. This asset will survive the bankruptcy and the appellant will continue to benefit from it his entire career.

In these circumstances, it would be shocking to the public if the appellant were allowed to be so easily released from his obligations toward the respondent. V.

SUMMARY [ 59 ] We reiterate that each case must be analyzed according to its particular context. Though it may sometimes be appropriate to impose less severe payments, the circumstances of the present case do not militate in favour of a discharge according to the conditions devised by the registrar.

Thus, there is no cause to intervene in the corrections brought by the judge, with the exception to those regarding the payment terms. [ 60 ] On the first question, I would allow the appeal in part for the sole purpose of reviewing the conclusions of the trial judgment to order that the payments be made by the bankrupt to the trustee for the benefit of the body of creditors, not to the respondent, in compliance with section 176(3) of the BIA .

There is also cause to allow the bankrupt to make anticipatory payments to accelerate his discharge, as the case may be. [ 61 ] On the second question, the trial judge's analysis is free from error. He correctly applied the criteria to be considered in the discharge of a bankrupt. There is no cause for intervention. [ 62 ] Although the appeal has been allowed in part, I would nonetheless condemn the appellant to pay costs because the issues on which we are intervening are minor and unopposed by the respondent. JACQUES A. LÉGER, J.A.