SHELLEY FORESTER Applicant - v. -, 2023 SKKB 161

KING’S BENCH FOR SASKATCHEWAN In Bankruptcy and Insolvency Citation: 2023 SKKB 161 Date: 2023 08 02 Docket: BKY-RG-00069-2023 Estate No.: 23-2884195 Judicial Centre: Saskatoon ___________________________________________________________________________ IN THE MATTER OF THE BANKRUPTCY OF RITCHIE PETER POITRAS BETWEEN: SHELLEY FORESTER Applicant - and - ROSANNA FAYANT Respondent Counsel: Michael J. Russell and Cameron G. Christensen for the applicant no one for the respondent ___________________________________________________________________________ FIAT ROTHERY J.

August 2, 2023 ___________________________________________________________________________ Introduction [ 1 ] Shelley Forester [Forester] obtained a judgment under The Family Property Act , SS 1997, c F-6.3 [ FPA ], on October 24, 2022, awarding her $150,000, representing an equalization payment from her former common law partner, Ritchie Poitras [Poitras], as well as an order of costs against Poitras for $21,500. Three weeks later, on November 14, 2022, Poitras made an assignment in bankruptcy. [ 2 ] The trustee in bankruptcy, MNP Ltd. [Trustee], allowed the claims of the three unsecured creditors.

They included Forester’s claim of $171,500, along with a claim by TD Canada Trust for $4,232.95 and a claim by Poitras’s mother, Rosanna Fayant [Fayant], for $6,000. [ 3 ] Forester alleges that Poitras transferred title to the SE of Sec 01 Twp 44 Rge 16 W3 Extension 1 [acreage] to Fayant on June 24, 2019, at undervalue, as defined by s. 96 of the Bankruptcy and Insolvency Act , RSC 1985, c B-3 [ BIA ]. Forester’s counsel requested the Trustee to take proceedings to void the transfer at undervalue.

The Trustee responded that it was unable to pursue any claim to void the potential transfer at undervalue because of the lack of funds in Poitras’s bankruptcy estate. The Trustee further advised that it would consent to any application by Forester pursuant to s. 38 of the BIA . [ 4 ] On April 6, 2023, Forester obtained the order pursuant to s. 38 of the BIA , permitting her to apply, at her own expense, for a declaration pursuant to s. 96 of the BIA that Fayant pay her the difference between the value of the consideration given to Poitras by Fayant and the value of the acreage transferred from Poitras to Fayant.

The order made pursuant to s. 38 of the BIA also set out the mechanism for other creditors to participate in the prosecution of the claim in turn for contributing to the cost of the claim. The order states that any surplus of funds from the recovery of the acreage transferred for undervalue are to be paid to the Trustee to augment the bankruptcy estate. [ 5 ] On June 6, 2023, Forester’s counsel brought the application pursuant to s. 96 of the BIA for an order declaring the transfer of the acreage to Fayant to be a transfer at undervalue.

Fayant attended the application personally, although she resides in Salmon Arm, British Columbia. Fayant sought an adjournment of the application to provide her an opportunity to retain legal counsel. On July 20, 2023, the application continued. Counsel for Forester had filed two affidavits on her behalf; counsel for Fayant had also filed two affidavits on her behalf. After Forester’s counsel concluded his argument, the parties sought an adjournment of the proceedings. They continued to seek further adjournments throughout the day, as the parties were negotiating.

Finally, Fayant’s counsel sought an adjournment of the proceedings until June 24, 2023, so that he could have an opportunity to obtain clear instructions from Fayant. That

adjournment was granted. [ 6 ] On the resumption of the application on July 24, 2023, Fayant’s counsel sought leave to withdraw, as Fayant had dismissed him as her lawyer. Fayant was not in the courtroom and never did appear on the application. Her former counsel did not know whether she sought a further adjournment to seek new counsel.

He simply confirmed that Fayant was not present in the courtroom and there were no plans for her to be in attendance. [ 7 ] Because Fayant’s former counsel had already filed all the affidavit evidence and a comprehensive brief of law on the issues, I allowed Forester’s counsel to address the court on what remedy he sought on Forester’s behalf. Counsel submitted that the value of the acreage should be set at $300,000 and the loans that Fayant had proven she had made to Poitras up to June 24, 2019, was the sum of $28,691.40.

Forester’s counsel also conceded that some consideration should be made for the mortgage of $42,200 that Fayant assumed when Poitras transferred the title to the acreage to her. [ 8 ] From the affidavit and briefs of law filed, the following issues must be determined: 1. whether the judgment awarded to Forester in the FPA action is ascertainable such that the judgment may be a claim provable in bankruptcy; and 2. whether Forester has proven all the requirements of s. 96 of the BIA . [ 9 ] Forester’s claim in bankruptcy arises from a petitioner she commenced November 24, 2016, for a division of family property under the FPA .

She and Poitras commenced a common law relationship in 2009 and separated in the early weeks of 2016. The action finally came to trial in 2022, and Hildebrandt J. rendered an unreported decision in Forester v Poitras (24 October 2022) Battleford, FLD-BF-00193-2016 (Sask KB) [ FPA Action ]. [ 10 ] The trial judge dealt with two pieces of property that were subject to equal division between Forester and Poitras. Forester owns a house in North Battleford, Saskatchewan, in her name alone.

Forester acknowledged at trial that it was the family home as defined by s. 2(1) of the FPA and sought an order that the family home be sold and any equity be divided equally between her and Poitras. No valuation of the family home was proven at trial, but the trial judge acknowledged that encumbrances included two interests registered by Crown Crest Capital Management for a water softener rental, as well as the mortgage registered by the Toronto-Dominion Bank for $84,000. The trial judge also acknowledged that Forester had only been paying interest on the mortgage and the principal amount had not reduced.

The trial judge also excluded any claim Poitras had registered against the family home for $150,000 for renovations he had done on the family home. [ 11 ] After addressing the division of the family home between the couple, the trial judge proceeded to determine the value of the acreage, which was registered in Poitras’s name alone. While Poitras represented himself at trial and refused to provide any valuation of the acreage, his property statement sworn January 9, 2017 (when he was represented by counsel) states the value of the acreage as at January 9, 2017, was $300,000.

The trial judge found this to be the value of the acreage and decided that an equalization payment of $150,000 to Forester was appropriate. [ 12 ] The trial judge granted judgment in the FPA Action on the following terms: [78] For the reasons outlined above, Ms. Forester is entitled to judgment as follows: a.

The family home located at 1478 99 th Street, North Battleford, Saskatchewan, the legal description of which is Lot 8, Blk/Par 37 Plan B2991 Extension 22, currently registered in the name of the petitioner, shall be sold, with the net proceeds, following payment of the realtor and legal costs associated with the sale, the Toronto-Dominion Bank mortgage, and the Crown Crest Capital Management interests in the water softener, to be distributed equally between the parties, subject to the provisions of subpara. e herein. b.

No payment is to be made to the respondent regarding his claim for reimbursement of the renovation costs for the family home and the respondent is directed to withdraw the miscellaneous interest he has registered against the above-noted property within 30 days of this judgment, failing which the registrar of titles is directed to discharge the miscellaneous interest registered by the respondent, Ritchie Peter Poitras, on the title to the above-noted property. c. The acreage, the legal description of which is SE-1-44-16-W3, is family property and its value is determined to be $300,000.

The respondent shall forthwith pay to the petitioner her half share of the acreage, namely $150,000, by way of an equalization payment. d. The respondent shall forthwith pay to the petitioner the costs of these proceedings, which are set at $21,500. e.

If at the time of distribution of the net sale proceeds of the family home, as contemplated by subpara. a, any amounts pursuant to subparas. c and d herein remain outstanding from the respondent to the petitioner, any share of the proceeds of such sale to which the respondent would otherwise be entitled shall be paid to the petitioner to reduce the amount outstanding to her pursuant to subparas. c and d.

Preliminary Issue: Whether the judgment awarded to Forester in the FPA Action is ascertainable such that the judgment may be a claim provable in bankruptcy [ 13 ] Prior to Fayant dismissing her legal counsel, counsel had filed a brief of law that included a submission that, because of the terms of the court’s judgment in the FPA Action , the actual amount owed to Forester has not yet been ascertained, and cannot be ascertained until Forester sells the family home and credits Poitras with his half share of the net sale proceeds. [ 14 ] This argument must be dismissed.

The Trustee takes the position that Forester’s claim for $171,500 arising from the FPA Action is a discrete claim, separate from any claim that Poitras might have and enforceable in the FPA Action . Pursuant to the order under s. 38 of the BIA , Forester has stepped into the shoes of the Trustee to prosecute the action under s. 96 of the BIA . That is,

Forester is authorized to determine whether the acreage was transferred to Fayant at undervalue. [ 15 ] Furthermore, any claim Poitras might have resulting from the sale of the family home would vest in the Trustee. However, evidence was filed in this application that makes this issue a moot point. [ 16 ] The principal balance owing on the mortgage registered against the family home in July 2023 is almost the same as it was in November 2022, just after the judgment was rendered in the FPA Action . Forester continues to only pay the monthly interest due.

The principal balance is now $83,829.46; it was $83,748.54 in November 2022. The two interests filed by Crown Crest Capital Management remain registered against title. [ 17 ] The opinion of a real estate agent provided to Forester in June 2023 states that a recommended list price for the family home would be $79,900, for a possible sale price of $70,000 to $75,000. The realtor noted that the family home “is in need of a lot of work, is in overall poor condition and only partially finished.” [ 18 ] In short, there is no equity in the family home to be distributed between Forester and Poitras.

Forester must resort to the bankruptcy proceedings to assert her claim of $171,500, which the Trustee has already admitted as a claim on the Claims Register in Poitras’s

summary administration. Issue: Whether Forester has proven all the requirements of s. 96 of the BIA [ 19 ] Forester applies on behalf of the Trustee for judgment pursuant to the provisions of s. 96 of the BIA , specifically s. 96(1) (b)(ii)(B), which states: 96

(1) On application by the trustee, a court may declare that a transfer at undervalue is void as against, or, in Quebec, may not be set up against, the trustee — or order that a party to the transfer or any other person who is privy to the transfer, or all of those persons, pay to the estate the difference between the value of the consideration received by the debtor and the value of the consideration given by the debtor — if … (

b) the party was not dealing at arm’s length with the debtor and … (ii) the transfer occurred during the period that begins on the day that is five years before the date of the initial bankruptcy event and ends on the day before the day on which the period referred to in subparagraph (

i) begins and … (

B) the debtor intended to defraud, defeat or delay a creditor. [ 20 ] There is no dispute that Fayant, by being Poitras’s mother, is a related person as defined by s. 4 of the BIA and was not dealing at arm’s length with Poitras at the time of the transfer of the acreage to her.

There is also no dispute that the transfer took place within the time period of November 14, 2017, and November 13, 2021 (one year prior to Poitras’s assignment in bankruptcy on November 14, 2022); the transfer occurred on June 24, 2019. [ 21 ] However, for Forester to be successful in the application, she must prove that Poitras intended to defraud, defeat or delay her claim as a creditor.

To calculate the amount that Fayant must pay Forester, on behalf of the bankruptcy estate, a determination must be made as to “the difference between the value of the consideration received by the debtor and the value of consideration given by the debtor”. That is, a determination must be made of the value of the acreage at the time of the transfer to Fayant on June 24, 2019. Also, a determination must be made as to the consideration Poitras received from Fayant to allow the court to decide if the transfer constitutes a “transfer at undervalue”. These facts are in dispute between the parties. [ 22 ]

Section 2 of the BIA defines “transfer at undervalue” as follows: 2 In this Act, … transfer at undervalue means a disposition of property or provision of services for which no consideration is received by the debtor or for which the consideration received by the debtor is conspicuously less than the fair market value of the consideration given by the debtor; … [ 23 ] Forester’s counsel submits that the value of the acreage at the time of the transfer was $300,000 because that is what the trial judge in the FPA Action found it to be, both at the time of the trial, and at the time of Poitras swearing his property statement on January 9, 2017.

Forester’s counsel argues that the doctrine of res judicata precludes Fayant from questioning the trial judge’s finding, and the bankruptcy court ought to accept the value of $300,000. Counsel refers to 420093 B.C. Ltd. v Bank of Montreal , 1995 ABCA 328 at para 16 , 174 AR 714 , for the doctrine of estoppel by res judicata : [16] Estoppel by res judicata is a rule of evidence.

Where a final judicial decision has been pronounced by a court of competent jurisdiction over the parties and the subject-matter “… any party or privy to such litigation, as against any other party or privy thereto, and in the case of a decision in rem , any person whatsoever as against any other person, is estopped in any subsequent litigation from disputing or questioning such decision on the merits”: Spencer-Bower and Turner, The Doctrine of Res Judicata , (2nd ed.) at p. 9.

[24] Now is an appropriate time to quote the portions of the trial judge’s decision in the FPA Action pertaining to thevalue of the acreage. Paragraphs 49 to 62 of the decision are reproduced, in part: [49] Title to the acreage is now in the name of Mr. Poitras’ mother, Rosanna Fayant. From the title, found .in Exhibit P-l, the transferoccurred in June of 2019, despite Ms. Forester having registered a certificate of pending litigation on December 11, 2017. RosannaFayant, who Mr. Poitras indicated is now 84 years old, was not called to testify. Nor were any sale or debt cancellation documents filedby Mr.

Poitras regarding transfer of the acreage to his mother. [50] Mr. Poitras merely claims that he owed his mother $70,000 in relation to his first divorce, which occurred back in 2008 – 2009,around the time he and Ms. Forester reconnected, according to her testimony. Thus Mr. Poitras “forfeited” the acreage to his mother inorder to pay that still-outstanding debt. Given the amounts Mr.

Poitras was earning and the money invested in the family home andpurchase of the acreage, it is, at best, curious that he was unable to reduce or eliminate this debt to his mother in the ten years prior totransferring title of the acreage to her. [51] Also concerning is Mr. Poitras’ admission that he still wishes it to be known as his acreage. Further, under cross-examination,Mr. Poitras agreed that giving his mother property which he valued at $300,000 for a debt of $70,000 was “not reasonable”. Finally, noindication of any debt to his mother was included in Mr.

Poitras’ property statement, sworn January 9, 2017, with his explanation forsuch omission being that the debt was “personal”, did not involve a bank, and “family is not an institution”. Mr. Poitras acknowledgedhaving completed the property statement and having had the assistance of a lawyer at the time. Thus, his stated justification fortransferring the property to his mother in the context of undisclosed debt is neither credible nor reasonable. [52] Equally unbelievable is Mr.

Poitras’ altered version of the debt to his mother, arising late in cross-examination, wherein hesuggested that he had borrowed money from her to buy the acreage and “she kept on giving me money to build the buildings”. No hint ofthis notion had been provided earlier. [53] In light of the petitioner’s legitimate concern that Mr. Poitras, in transferring the acreage to his mother, was dissipating property,attempts were made to contact her, in keeping with the requirements of s. 28 of The Family Property Act. However, as Mr.

Poitrasconfirmed in cross-examination, he instructed his mother to “obstruct the process” and not even answer any calls from the petitioner’scounsel. Mr. Poitras also testified that it was “correct” that his mother had taken the property “with the lis pendens on it” and thereforeshe “knew it was disputed”. [54] Mr. Poitras also confirmed under cross-examination that he had refused to accommodate an appraisal. Despite repeated requests,he declined to allow an appraisal and threatened to contact the media, the Law Society, and other “proper authorities” if counsel for thepetitioner continued to pursue an appraisal.

Mr. Poitras testified that he had refused the appraisal “because a whole bunch of work wasdone on the property and there was no way [Ms. Forester] was going to benefit”. This obstructive conduct on the part of Mr. Poitrasleaves this court with the challenge of valuing the acreage property. … [58] Here, Mr. Poitras provided no evidence regarding the value of the acreage. However, Ms.

Forester’s counsel again points to theproperty statement of the respondent sworn January 9, 2017, approximately six weeks after the petition was issued, found on the courtfile and marked as Exhibit P-8 for identification in this trial. Therein Mr. Poitras states that the “current” value of the acreage, located atthe SE-l-44-16-W3, is $300,000. Mr. Poitras, in cross-examination, as previously noted, acknowledged having completed the propertystatement and agreed that he had a lawyer at the time. [59] In Exhibit P-5, Kijiji advertisements are included, which demonstrate that Mr.

Poitras attempted to sell the acreage in February of2017 for $360,000 and made a further attempt in early 2018 with a price of $327,000. In the TD Canada Trust application for personalcredit, included in Exhibit P-4, and signed by Mr. Poitras on May 23, 2015, Mr. Poitras stated that the “current value” of the acreage(referenced as the principal residence on Brada Road) was $660,000. In the circumstances, however, this latter document may representa gross over-valuation as part of an attempt to secure greater credit. [60] In closing argument, counsel for the petitioner indicated that, regrettably, Mr.

Poitras may actually benefit from his obstructiveactions if, indeed, the acreage is now worth over $300,000. Mr. Poitras, counsel submits, should at least be held to the value he indicatedin his property statement sworn mere weeks after issuance of the petition. In the circumstances, this is reasonable. Again, as of January 9,2017, Mr.

Poitras averred that the “current date” value of the acreage was $300,000, This would, effectively, be a valuation as of theapplication date, a choice permitted by Benson v Benson (1994), (SK CA), 120 Sask R 17 (CA) at paras 33 and 34: 33 Now, of course, the Act contemplates the distribution of that property or its value.

And the court is empowered to value thatproperty as of the time of application or adjudication, “whichever the court thinks fit.” The power in the court to make that choice –choices, really, for the court is not required to value every item of matrimonial property as of the same time – is cast in decidedly broadterms. It is not, however, unbounded. It has been taken to constitute a discretionary power, but one which must be exercised rationally, inkeeping with the purposes of the Act and the justice of the case: Tataryn v. Tataryn (1984), (SK CA), 38 R.F.L. (2d)272 (Sask. C.A.), Mitchell v.

Mitchell (1992), (SK CA), 41 R.F.L. (3d) 220 (Sask. C.A.). 34 Since it is the property owned by the spouses at the time of application which constitutes the base for the distributioncontemplated by s. 21(1), the courts have tended to choose that date for valuation purposes, unless there be something in thecircumstances suggesting otherwise. From time to time various considerations have informed the choice, including the rise or fall ofvalue in the interval between application and adjudication. That has been taken to be an appropriate consideration.

But value can rise orfall according to diverse causes, some beyond the control of the spouses, others within their control. This, too, has been taken to be anappropriate consideration. Thus, a decline in land values attributable to market forces, beyond the control of the spouses, has been takenas justification for choosing to value as of the time of adjudication rather than application: Medernach v. Medernach (1987), (SK CA), 56 Sask. R. 240 (C.A.).

And a rise in the value of business assets, attributable solely to the effort of one of thespouses in the interval, has been taken to justify a decision to value as of the time of application rather than adjudication, as in Greshamv. Gresham (1988), (SK CA), 17 R.F.L. (3d) 209 (Sask. C.A.). These were taken to be rational choices, made in

keeping with the purposes of the Act and the justice of the case. [Emphasis in original] [61] I t is not feasible to order a sale or transfer back of the property without the involvement of Rosanna Fayant and that has been blocked by Mr. Poitras. Thus, the option presented on behalf of the petitioner, whereby an equalization payment of $150,000 is paid from Mr. Poitras to Ms. Forester is the prudent course. [62] Notably, no disclosure has been provided regarding the value of Eagle Oilfield Consulting Ltd. However, Ms. Forester has elected not to pursue that business asset.

Nor is there any indication of her pursuing the Quesnel, British Columbia property, referenced in both the TD Canada Trust application for personal credit and Mr. Poitras’ property statement, despite Mr. Poitras claiming no exemption on such property and assets. As such, this court’s conclusions regarding the distribution of family property are limited to the family home and the acreage. In this regard, Ms.

Forester’s request for sale of the family home and an equalization payment in relation to the acreage property is appropriate. [ 25 ] The only evidence put forth at this application by Fayant in her affidavits as to the value of the acreage was exhibiting the “Titles Affidavit of Value” to the transfer of title from Poitras to Fayant, where Poitras swore the value of the acreage to be $162,000.

Fayant also stated in her affidavit that “the acreage was in the middle of being developed and so did not have significant value.” [ 26 ] Fayant filed a supplementary affidavit which attached an appraisal of the acreage, completed July 18, 2023, assessing the value as at June 24, 2019. The appraisal was directed to Poitras, as the client, and the appraiser appraised the value of the acreage at June 24, 2019, at $165,000. However, the appraiser provided the limiting opinion that the appraisal was based on information provided by Poitras as to the condition of the acreage as at June 24, 2019.

The appraisal report states: It should be noted that this appraisal is based on the effective date of June 24, 2019, based on the request of the client. The inspection of the subject property was conducted on July 17, 2023. An extraordinary assumption is required as the condition of the subject property as of the effective date is unknown; therefore, it is based on the site contact’s description. The client states that the dwelling, as of June 24, 2019, was only shell space with no insulation or interior finishing, but it did have the electrical panel and two baseboard heaters.

The client stated that the shop has remained unchanged since June 24, 2019. One well was functional as of the effective date but one didn’t have power. Note that there was no mobile home on the site as of the effective date, per the client. An extraordinary limiting condition is required, in that any change to this assumption may cause the opinion of value stated in this report to change. Per the client, the dwelling was only shell space (no interior finish) as of the effective date. It had two electric baseboard heaters, a 100 amp electrical panel but no insulation.

Overall, the interior of the subject is considered to be in poor condition. [ 27 ] Thus, the evidence before the bankruptcy court is the self-serving affidavit of value that Poitras used to transfer title, along with an appraisal that is based on what Poitras told the appraiser as to the condition of the acreage. Oppositely, the trial judge’s findings in the FPA Action set the value at $300,000. Poitras swore a property statement in January 2017, deposing that the value of the acreage was $300,000.

That property statement was some two years prior to the transfer of the acreage to Fayant. [ 28 ] On the preponderance of evidence, I must conclude that the value of the acreage at the time of the transfer to Fayant was $300,000. Furthermore, the doctrine of estoppel by res judicata applies in this situation. The trial judge has already determined the value of the acreage. [ 29 ] Fayant stated that she lent Poitras $32,827.36 between May 9, 2016, and November 10, 2020. Documentation was filed to support the money transfers.

From that total amount, the sum of $28,691.40 was the actual amount advanced before June 24, 2019, being the date of transfer. [ 30 ] Fayant filed a one-page document as an exhibit to her affidavit, unsupported by any evidence, stating that Poitras owes her $158,911.21.

The document is reproduced as follows: January 13 2023 Monies Owed to me by Richard Poitras From 2009 ----2022 2009 mortgage on home in Anglemont BC....................... 94,500.00 2009 payout on vehicle and lot......................................... 10750.00 2017 loan........................................................................ 14525.00 2018 loan.......................................................................... 6750.00 2018 Cheques issued as a loan............................................ 4400.00 2019 loan.......................................................................... 6675.00 2020 loan.......................................................................... 5585.96 2022 sent.......................................................................... 8810.00 Interest on money borrowed on line of credit {Scotia}........... 965.25 Rooms.............................................................................. 1450.00

Transportation and bus....................................................... 2500.00 Miscellaneous................................................................... 2000.00 ........................................................................... Total..158911.21 [ 31 ] Poitras swore under oath at the trial of the FPA Action that he owed Fayant $70,000 for a debt he incurred in 2008-2009. The trial judge was circumspect about the veracity of this, as outlined in paragraphs 50 to 52 of her decision, quoted herein.

None of what he stated at trial corresponds to the list that Fayant attached to her affidavit in this application and dated January 13, 2023. [ 32 ] Based on this conflicting evidence offered by both Fayant and Poitras, I must conclude that the only debt which Fayant has proven is the sum of $28,691.40. [ 33 ] When Poitras transferred the acreage to Fayant on June 24, 2019, a mortgage in favour of the Bank of Nova Scotia for $42,200 was registered on the title, having been registered on June 25, 2013. No evidence was led as to the amount of this mortgage that remained outstanding at the time of transfer.

The mortgage must be considered in determining whether the consideration received by Poitras was conspicuously less than the fair market value of the consideration given by him. [ 34 ] In this case, with no evidence before me, I will calculate the outstanding amount of the mortgage as being $42,200 at June 24, 2019. That is the most fair calculation that can be made. Thus, with Fayant’s loans totaling $28,691.40 and the mortgage of $42,200, Poitras has received consideration of $70,891.40. The acreage has a fair market value of $300,000.

That is “conspicuously less” than the value of the acreage transferred to Fayant on June 24, 2019; it is almost $230,000 less. [ 35 ] For Forester to be successful in this application, she must prove that Poitras intended to defraud, defeat or delay her as his creditor. There is no better or more conclusive evidence of Poitras’s intent than the findings of the trial judge, as stated in paragraphs 53 and 54 of her decision. The trial judge concluded that Poitras transferred the acreage to Fayant so that Forester could not benefit from the increased value in the acreage.

Poitras told his mother to not cooperate in the FPA Action . [ 36 ] I need look no further for the “badges of fraud”. Poitras has declared his intent, under oath, before the trial judge. With that element of s. 96 of the BIA being proven, Forester is entitled to judgment against Fayant for the difference between the value of the consideration received by Poitras and the value given by Poitras, that is, the sum of $229,108.60. [ 37 ] Forester is also entitled to costs of this application, fixed at $1,500.00, payable within 30 days hereof.

The Appropriate Remedy [ 38 ] Although judgment is granted against Fayant in accordance with s. 96 of the BIA , counsel for Forester submits that the appointment of a receiver to sell the acreage to satisfy the judgment would be appropriate in Forester’s circumstances.

Section 104 of The Enforcement of Money Judgments Act , SS 2010, c E-9.22 [ EMJA ], sets out additional procedures that must be complied with prior to the Sheriff selling the acreage. [ 39 ] Counsel refers to s. 10-15(1) of The King’s Bench Act , SS 2023, c 28 , which states: 10-15

(1) A judge may, on an interlocutory application, grant a mandamus or an injunction or appoint a receiver if it appears to the judge to be appropriate or convenient that the order should be made. [ 40 ] I decline to even entertain such relief as requested. First, this is not an interlocutory application. Secondly, Fayant has not been served with any notice of application to appoint a receiver. Her rights under the EMJA cannot be extinguished without her being able to respond to the request by Forester’s counsel. Conclusion [ 41 ] It is hereby ordered that: 1. pursuant to s. 96(1)(b)(ii)(

B) of the BIA , the transfer of the acreage from Poitras to Fayant on June 24, 2019, is hereby declared to be a transfer at undervalue; 2. the value at the time of the transfer at undervalue is declared to be $300,000, and the value of consideration given by Poitras to Fayant at the time of the transfer at undervalue is declared to be $70,891.40; 3. Forester is granted judgment against Fayant in the amount of $229,108.60; 4.

Forester is granted costs of this application fixed at $1,500.00, payable by Fayant within 30 days hereof; and 5. except for any matters arising from registering the judgment against the title to the acreage or arising from the preservation order granted July 6, 2023, I am no longer seized with this application. [ 42 ] Counsel for Forester is to provide a draft of this order for my review prior to its issuance. Compliance with Rule 10-4(2) of The Queen’s Bench Rules is hereby waived. “A.R. Rothery” J. A.R. ROTHERY