Mar 17, 2014

Summary of Menzies v. Menzies

Menzies v. Menzies, 2002 SKQB 388 (CanLII)
FIAT. The respondent husband filed an assignment in bankruptcy on December 10, 2001 and the trustee assumed control over four vehicles, the savings bonds and CN shares. The former wife applied for judgment with respect to her petition filed in November 1999 for equal division of family property and for an order that the trustee in bankruptcy for her former husband be directed to transfer her share of the family property to her. The parties married in July 1997 and separated in June 1999. Division of family property will be dealt with once pension information is filed. The parties agreed the petitioner requires an order lifting the stay pursuant to s.69.3(1) of the Bankruptcy and Insolvency Act to bring this application; that the stay should be lifted; any irregularities as to procedure be waived. The sole issue for determination was what, if any, authority this Court has to order the trustee in bankruptcy to transfer assets to the petitioner.HELD: The application was dismissed. No costs were ordered at the request of the trustee. 1)The stay was lifted with a caveat that the court was not making a finding one way or the other as to the applicability of s.69.3 to this situation. 2)The bonds were purchased following the application date and therefore did not fall within the definition of family property as set out in s.2 of the Family Property Act. If the bonds are owned jointly, the petitioner's proper remedy is to make a claim pursuant to s.81 of the BIA. She cannot use the Family Property Act to achieve indirectly what she failed to do directly. 3)While the vehicles and CN shares are family property, this Court has no jurisdiction to order the trustee in bankruptcy to transfer the property in satisfaction of the claims under the Family Property Act. The respondent no longer owns that property. Ownership passed by virtue of the BIA to the trustee, who holds it in trust for the bankrupt's creditors. The petitioner has no court order or agreement giving her ownership of those assets. The mere fact she initiated an application for division of the property does not vest in her any title or interest in the property subject to division. The Saskatchewan Court of Appeal held in Walton v. Walton that s.43 of the MPA (now FPA) governed and that no title or interest in property is vested in a spouse until judgment is obtained under that Act. There was no judgment or charge as in Boe v. Boe nor was there any agreement as in MacPherson.