2015 NSSC 321, 2015 NSSC 321

IN THE SUPREME COURT OF Nova Scotia IN BANKRUPTCY AND INSOLVENCY Citation: Tucker , (Re) , 2015 NSSC 321 Date: November 17, 2015 Docket: Halifax , No. 36426 Registry: Halifax District of Nova Scotia Division No.1 Court No. 36426 Estate No. 51-1521036 IN THE MATTER OF THE BANKRUPTCY OF Kevin Wayne Tucker D E C I S I O N Registrar: Richard W. Cregan, Q.C. Heard: October 16, 2015 Present: Kelly A.

Peck, Counsel for the Department of Justice Kevin Wayne Tucker By the Court: [ 1 ] This is an application by Kevin Wayne Tucker for the discharge of his student loan pursuant to Section 178 (1.1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ( BIA ). [ 2 ] Mr. Tucker attended a 20 month course in Business, Payroll and Accounting at Compu College. He graduated in September 2004. [ 3 ] To finance his studies he obtained a student loan guaranteed by the Federal authorities and administered by the Canada Revenue Agency (CRA). This loan has a present balance of $19,289.97.

He also obtained a student loan which is guaranteed by Provincial authorities. [ 4 ] He made an assignment in bankruptcy on July 21, 2011. This date is short of seven years after he ceased to be a student by about

two months. Accordingly, this loan was not discharged by his assignment. [ 5 ] Apparently no claim was made in his bankruptcy respecting the Provincial loan. The appropriate agency was not served with notice of this application and no claims have been made for its payment since he made his assignment. Thus, this loan is not a subject of this application. [ 6 ] Mr. Tucker received his discharge on April 22, 2012. Having not heard from anyone respecting the Federal loan since his discharge, he had assumed the account was closed.

However, he and his employer recently started receiving demand letters and his wages were being garnisheed to address this loan. [ 7 ] Using the education financed by these loans, he was able to work for Ceridian Payroll Co. However, this employment lasted only 16 months. He was laid off. He went back to working as a cook and as an overnight courier delivering newspapers. [ 8 ] Mr. Tucker is married and has 3 children, ages 11, 8, and 6 respectively. His income as a cook is $1,360 per month and as a courier $2,600 less expenses per month. His spouse’s income is $1,600. She receives the child tax credit of $600.

This results in total income of $6,160. His expenses are estimated at $5,652 giving a difference of $508. Thus his surplus income would be $254.

The following is his statement of income and expenses: MONTHLY INCOME AND EXPENSES INCOME: KING OF DONAIR 1,360.00 CHRONICLE HERALD 2,600.00 SPOUSE 1,600.00 CHILD TAX 600.00 TOTAL 6,160.00 EXPENSES: RENT 1,500.00 VEHICLES 1,000.00 CAR AND HOME INS 215.00 LIFE INS X 5 187.00 WATER 90.00 CABLE 230.00 POWER 175.00 CREDIT CARDS 500.00 DAUGHTER’S BRACES 105.00 INCOME TAX PAYMENTS 550.00 FUEL 400.00 GROCIERIES 500.00 FURNITURE LEASE 200.00 TOTAL 5,652.00 [ 9 ] The cross-examination by counsel for CRA suggests that his income more accurately is $5,585 and expenses are $4,345 with a difference of $1,240, resulting in surplus income of $620. [ 10 ] CRA objects to relief being granted to Mr.

Tucker. It alleges that he has not met either of the tests set out in Section 178(1.1) of the

BIA , that is, having shown good faith in attempting to repay his obligations and having shown that he will continue to experience financial difficulty such that he will be unable to pay the debt. [ 11 ] As to the first test, Mr. Tucker says in his affidavit: “I have not made any payments to the student loan. I applied for interest relief for 12 months after the last date of my studies which I was granted”. [ 12 ] This fact very much concerns me. He completed his studies fifteen years ago. Apart from one year of interest relief and three payments of $100 each, he has not addressed this loan.

Meanwhile he was discharged from his other debts through bankruptcy. Counsel for CRA strongly submits that he has not acted in good faith. His present income and expenses statement indicates that there is room for some payment to have been made on a regular basis. He has not given any evidence to show that in the past this would have not been possible. [ 13 ] I am not satisfied that Mr. Tucker has met the test of good faith. He has only made three token payments against the loan. He has given little evidence that such is all that could be reasonably expected of him.

He did initially obtain employment related to his studies. After that ended, he has had employment in cooking and courier work. I presume that this has been steady work. It provides steady employment which supports a reasonable life style.

However, he has placed a very low priority on repaying these loans. [ 14 ] It would be otherwise, if he had made payments with some regularity, even small payments, had made further use of interest relief and had attempted to reach some understanding with CRA regarding what he might reasonably be able to pay, something Counsel for CRA in her brief represents that it is willing to consider. [ 15 ] As a result, in the present circumstances I am unable to find that Mr. Tucker is entitled to the relief sought. R