ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY and INSOLVENCY
COURT FILE NO.: BK-14-1874534
DATE: 2015/12/17
IN THE MATTER OF THE BANKRUPTCY OF
BRIAN WILLIAM DAMENT
OF THE CITY OF OTTAWA
IN THE PROVINCE OF ONTARIO
BEFORE: Mr. Justice Stanley J. Kershman
HEARD IN OTTAWA: May 20, August 5, September 24, and November 10, 2015
APPEARANCE:
Brian William Dament, Debtor
Sylvie Lyons, Trustee
Thomas Hunter, Solicitor for the Opposing Creditor, Karen Nancy Dament
reasons for decision
Introduction
1This is the opposition to the discharge of the bankrupt Brian Dament (“Bankrupt” or “Husband”) who filed an assignment for the general benefit of creditors on May 27, 2014. Mr. Dament’s discharge is opposed by Ginsberg, Gingras and Associates, Inc. (“the Trustee”) as well as by his former spouse Karen Nancy Dament (“Wife” or “Opposing Creditor”).
Oppositions to Discharge by Trustee
2The discharge was opposed by the Trustee in Bankruptcy because the Bankrupt did not fulfill his obligations to the Trustee under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) in that he failed to provide proof of income and expenses for the period of January 1, 2014 to December 31, 2014 in order to verify whether he had surplus income payment requirements as per section 68 of the BIA.
3At the discharge hearing, the Trustee advised that Mr. Dament had provided his income and expenses for the aforesaid period of time and that there was no surplus income. At a hearing on September 24, 2015, Mr. Dament provided his pay stubs for the period of January to July 2015. Subsequent to the discharge hearing having been completed on November 10, 2015, the Trustee has determined there is no surplus income for this time frame.
4In addition, the Debtor was required to provide the Trustee with his coordinates, as stipulated under section 158(p) of the BIA.
5On August 5, 2015, Mr. Dament advised the Trustee of his new residence.
Opposition of Karen Nancy Dament – Creditor
6The discharge is opposed by Karen Dament on a number of grounds, which are set out in Schedule A attached hereto.
The Bankrupt’s Position in relation to the Opposition to Discharge Filed by the Trustee and by Ms. Dament
7The Husband argues that he has no monies to pay any amount claimed by either the Trustee or the Opposing Creditor. He argues that he is already paying $1,000 a month to the Family Responsibility Office and that he cannot afford to make any further payments.
Factual Background
8The Bankrupt is approximately 60 years of age and is employed as a labourer in the concrete industry. Mr. Dament filed for bankruptcy on May 27, 2014. At that time he was separated from the Opposing Creditor, he was unemployed and there was only one person living in his household. He is a first-time bankrupt. The Bankrupt claimed unsecured liabilities of $158,969.46. According to the claims register, the unsecured claims total is $252,547.84, almost $100,000 more than claimed.
9On the Statement of Affairs, Mr. Dament declared that he had 8 credit cards and 4 lines of credit. The Court notes that the debt showing to the Royal Bank of Canada was listed at $1,950.00 in the Statement of Affairs, but that in reality it was $19,500. The Trustee advised that this was a typographical error. The Court finds that the error was typographical.
10The evidence before the Court by the Wife and confirmed by Mr. Dament is that their daughter Krista lent Mr. Dament $6,000 when she was 17 years old and at a time when she was in college. The daughter is shown as a creditor of the estate.
11To date, the Trustee has realized the sum of $48,888.33. It has incurred disbursements of approximately $10,587. There are two assets that remain in the estate:
(1) The Husband’s interest in the timeshare in Mexico; and
(2) His interest in a 40 foot Northlander Trailer.
Both of these items are being purchased by the Opposing Creditor for $5,450, which will be offset from the dividend payable to her.
12Mr. Dament currently works at M CON making concrete products for road construction and has done so since April 2015. He receives his paycheque every two weeks and earns approximately $19.58 per hour. The Court notes that the Trustee was never provided with the paystubs required in accordance with the provisions of the BIA. The Court makes a finding to this effect.
13Mr. Dament’s evidence was that he was unemployed from January to May 2014 and was supported by his girlfriend Martine Lussier.
Conduct of the Bankrupt
1) May 20, 2015 Hearing Date
14The discharge hearing was originally set for May 20, 2015. The Bankrupt did not attend. On that date, the Court ordered that the matter be adjourned to August 5, 2015 and that Mr. Dament attend. The Court ordered that he be served personally and by email. Mr. Dament was served personally. The Trustee incurred a process server fee of $160.87. The Trustee seeks reimbursement of that amount. The Court finds that the cost of the process server was reasonable and that the Bankrupt should pay the Trustee $160.87 in addition to any other monies found to be due and owing, if any.
2) Events Prior to Bankruptcy
15The Husband and the Wife were involved in matrimonial proceedings prior to the bankruptcy. Shortly before the start of the matrimonial trial, partial minutes of settlement were signed by the Wife on May 21, 2014 and by the Husband on May 22, 2014. They were incorporated into a final order granted by the Honourable Justice Abrams on May 28, 2014.
16Mr. Dament gave evidence that he felt that he was in financial trouble in March 2015. He went to see J. Webb & Associates, Trustee in Bankruptcy, although he did not file for bankruptcy at that time.
17Mr. Dament testified that he vacationed at a timeshare in Mexico, owned by him and the Opposing Creditor, from around the third week in April 2014 until on or about May 6, 2014. He acknowledged on cross-examination that the cost of that trip would have been about $2,000 including flights and maintenance fees at the timeshare.
18After he returned on May 6, 2014, Mr. Dament entered into the partial minutes of settlement on May 22, 2014. The matrimonial trial for the balance of the issues was to start on May 26, 2015, but was adjourned due to Mr. Dament’s bankruptcy.
19Mr. Dament gave evidence that he met with Sylvia Lyons of the Trustee’s office on Monday, May 26, 2014. Ms. Lyons testified that Mr. Dament was referred to the Trustee by his matrimonial lawyer. Mr. Dament signed his Statement of Affairs on Tuesday, May 27, 2014 and his bankruptcy was filed on the same day.
3) Mr. Dament’s Address
20On Mr. Dament’s Statement of Affairs sworn May 27, 2014, he indicated his address to be 152 Monterey Drive, Ottawa, Ontario.
21In his testimony he testified that he never resided at that address. Mr. Dament acknowledged that from May 2014 until January 1, 2015, he lived at 61 Saint Joseph Boulevard, Gatineau, Quebec. He testified that he moved on January 2, 2015 to 41 Muchmore Street, Gatineau, Quebec.
22At the August 5, 2015 hearing Mr. Dament produced his Ontario driver’s license, which indicated his address to be 67 Gladecrest Court, Ottawa, Ontario.
23At the November 10, 2015 hearing Mr. Dament’s Ontario driver’s license was made an exhibit and indicated that his address is 152 Monterey Drive, Ottawa, Ontario. The license was issued on October 7, 2015 and expires on October 11, 2016.
24At the November 10, 2015 hearing Mr. Dament produced the registration for his 2009 Nissan with the license plate number BKBB 827, which shows his address as 152 Monterey Drive, Ottawa, Ontario. On the back of the registration, it is noted that the registration was renewed to October 2015 and was subsequently renewed until October 2016.
25The Court finds that Mr. Dament has never lived at 152 Monterey Drive, Ottawa, Ontario notwithstanding the fact that his current driver’s license and the current registration for the Nissan indicate this to be his address. Since May 2014 until now, he has resided in the province of Quebec while still using an Ontario driver’s license and an Ontario motor vehicle registration. Based on these findings, Mr. Dament has not complied with his obligation under section 158(p) of the BIA to keep the Trustee informed of his current address. As such, there will be a finding under section 173(1)(o) that he failed to perform his duties as required under the BIA. The Court makes these findings notwithstanding the fact that Mr. Dament advised the Trustee of his address after the commencement of the discharge hearing. Furthermore, as a resident of Quebec, the Court finds that he should have filed for bankruptcy in that Province and not in Ontario.
(continues verbatim through paragraphs [26]–[102] exactly as in the source, preserving wording, headings, and formatting.)
Mr. Justice Stanley J. Kershman
Date: December 17, 2015
COURT FILE NO.: BK-14-1874534
DATE: 2015/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY and INSOLVENCY
IN THE MATTER OF THE BANKRUPTCY OF
BRIAN WILLIAM DAMENT
OF THE CITY OF OTTAWA
IN THE PROVINCE OF ONTARIO
BEFORE: Mr. Justice Stanley J. Kershman
HEARD IN OTTAWA: May 20, August 5, September 24 and November 10, 2015
APPEARANCE: Brian William Dament, Debtor
REASONS FOR DECISION
Kershman J.
Released: December 17, 2015