SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-09-2433
DATE HEARD: 2013-04-11
RE: FRANCINE MICHELLE MARIE BOILY, Applicant
AND
CHRISTOPHER JOHN EATON and BANK OF MONTREAL, Respondents;
AND RE: IN THE MATTER OF THE BANKRUPTCY 0F CHRISTOPHER JOHN EATON –Trustee; Ginsberg, Gingras, & Assoc, Added Party
BEFORE: Honourable Justice Timothy Ray
COUNSEL:
Counsel, for the Ms. Boily, Rodney Cross.
No-one for Mr Eaton,
Counsel, for the Bank of Montreal, Robert de Toni.
Counsel for Ginsberg, Gingras & Assoc, Nigel McCready
HEARD: April 11, 2013
E N D O R S E M E N T
[1] The Bank of Montreal and the Trustee in Bankruptcy for Mr. Eaton move to rescind or set aside a portion of the consent order of Polowin J, dated February 13, 2012 on the ground that it was invalid.
[2] Mr. Eaton did not attend, although Mr. Cross indicated he had been in touch with Mr. Eaton’s counsel at some point who said that Mr. Eaton, being a bankrupt, had no interest in the proceeding.
[3] Paragraph 7 of the consent order of Polowin, J, except for the last sentence is rescinded. Mr. Eaton, an undischarged bankrupt purported to consent to the transfer of money on deposit with the Accountant of the Superior Court pursuant to the Order of Warkentin J dated October 28, 2011 - to Ms Boily, and purported to characterize the funds as child support, all in defiance of the terms of the order of Warkentin, J. Ms. Boily was represented at the time of the consent order. She knew Mr. Eaton was an undischarged bankrupt. Mr. Cross says she was unaware of the Order. She knows now.
[4] The funds on deposit pursuant to Warkentin, J’s order, were in fact the excess proceeds from the sale of the jointly owned matrimonial home of Ms. Boily and Mr. Eaton. That portion of the funds belonging to Mr. Eaton was vested in the Trustee in Bankruptcy by virtue of his assignment in bankruptcy March 26, 2010. Ms. Boily was claiming an unequal share of the proceeds. The order provided that the funds were to be paid into court in the Family Law proceeding underway between Ms. Boily and Mr. Eaton pending trial, and provided that Ms. Boily was to file a proof of claim in the bankruptcy proceeding in order to claim against Mr.. Eaton’s share. It also ordered that the Trustee in Bankruptcy be given notice of any of the family law proceedings. Ms. Boily did not file a proof of claim, and the Order of Polowin J was obtained without notice to the Trustee.
[5] The consent order of Polowin, J. seems to have emerged from a settlement between the parties and without notice to the Trustee in Bankruptcy. Furthermore, the Bank of Montreal held an execution against Ms. Boily for a debt in excess of the half of the fund on deposit, arising out of the purchase of a mobile home. When the Bank of Montreal got wind of the consent order, it obtained from Kershman J., an order to stop payment of Ms. Boily half of the proceeds to her because of its execution. The other half – namely – Mr. Eaton’s or the Trustee’s half was paid out to her.
[6] It therefore from the rescission of para. 7 as above, follows that the amount on deposit with the Accountant of the Superior Court, subject to the stop order be paid out to the Bank of Montreal. It also follows that Ms. Boily’s is liable to the Trustee in Bankruptcy for the half of the proceeds she took pursuant to Polowin J.’s order. She is jointly and severally liable with Mr. Eaton. Counsel can calculate the exact amounts since there may have been accrued interest.
[7] This scheme that the parties concocted in para. 7 of Polowin, J’s order also recited that Mr. Eaton’s arrears of child support were forgiven in exchange for the lump sum. That term in paragraph 7 is also rescinded.
[8] The Bank of Montreal and the Trustee in Bankruptcy are entitled to their costs. Mr. Cross says his client is an innocent victim. She could have consented to this relief a long time ago and have avoided any costs liability. She was complicit in any event. As a result there have been several unnecessary appearances and adjournments. Counsel say they have incurred full indemnity costs of close to $8,000.00 each. The Bank of Montreal and the Trustee in Bankruptcy are each awarded their costs fixed at $5, 000.00 payable jointly and severally by Mr. Eaton and Ms. Boily.
Honourable Justice Timothy D. Ray
DATE RELEASED: April 11, 2013
COURT FILE NO.: FC-09-2433
DATE HEARD: 2013-04-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FRANCINE MICHELLE MARIE BOILY, Applicant
AND
CHRISTOPHER JOHN EATON and BANK OF MONTREAL, Respondents;
AND RE: IN THE MATTER OF THE BANKRUPTCY 0F CHRISTOPHER JOHN EATON –Trustee; Ginsberg, Gingras, & Assoc, Added Party
BEFORE: Honourable Justice Timothy Ray
COUNSEL: Counsel, for the Ms. Boily, Rodney Cross.
No-one for Mr Eaton,
Counsel, for the Bank of Montreal, Robert de Toni.
Counsel for Ginsberg, Gingras & Assoc, Nigel McCready
ENDORSEMENT
Honourable Justice Timothy D. Ray
DATE RELEASED: April 11, 2013