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DISCHARGE OF BANKRUPT - Conditional discharge - Upon total or partial repayment

Thursday, May 03, 2018 @ 7:43 AM  


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Appeal by the bankrupt from his conditional discharge from bankruptcy. In 2007, the appellant's marriage broke down. The divorce proceedings were acrimonious and took several years to complete. The appellant's assets were tied up in the litigation. When the appellant's income became insufficient to meet his support obligations and legal fees, the appellant began to use credit cards and personal loans. He borrowed $16,000 from his brother in Poland, secured against a property in Poland that he owned. The property was surrendered to his brother when he failed to repay the loan. The appellant declared bankruptcy in May 2009. He made nine monthly payments of $229 each and was discharged in October 2010. In April 2011, the appellant's discharge was annulled based on the trustee's allegation that he had not disclosed the situation with the property in Poland. The appellant denied the allegation. The appellant then made a consumer proposal, which required increasing monthly payments over a five-year period totaling $66,665. At the time, the proven claims in the estate totaled $19,415. In January 2012, following the conclusion of the matrimonial litigation, the appellant received $72,850 from proceeds of the matrimonial settlement, which he deposited into his bank account. He claimed he did not realize he should pay the monies to the Trustee. By late 2012, the money was gone and the appellant did not know where it went. During this time, the appellant, who had been diagnosed with dissociative disorder and depression, experienced a decline in his mental state to the point where he was unable to work. His proposal was annulled in December 2012. At his discharge hearing in 2014, the appellant submitted that he had not intentionally ignored his obligations to the Trustee, but rather his mental condition at the time was such that he was unable to cope. The Registrar refused to grant an absolute discharge but granted a discharge on conditions that the appellant pay $61,000 (the amount outstanding on the proposal) and that he attend a second counselling. She also ordered that the discharge be suspended for six months. The appellant's appeal from the Registrar's decision was dismissed. The appeal judge refused to consider the fresh evidence of the appellant's psychiatric reports finding it was not sufficiently credible or probative to have likely affected the result.

HELD: Appeal allowed. The fresh evidence met the necessary criteria for admission. The evidence was relevant, credible and could reasonably have affected the result. The fact that the psychiatrist was the appellant's treating psychiatrist was not a proper basis for rejecting the evidence, although it might go to weight. Neither the Registrar nor the appeal judge gave proper consideration to the psychiatric evidence. The mental health issues the appellant experienced at the time the matrimonial settlement funds were received were significant and could have affected his thinking, actions and ability to recall events. Furthermore, there was no evidence that the appellant personally benefitted from the funds. In addition, in reaching her decision, the Registrar erred in relying on a fact that did not exist. She found that the appellant failed to disclose the Polish property to his Trustee, but the Trustee acknowledged that he had disclosed the property, although not in his original statement of affairs. The condition that the appellant pay $61,000 as a condition of his discharge was crushing for the appellant given his history and did not reflect the rehabilitative objective of the Bankruptcy and Insolvency Act. As a further suspension was not warranted, the appellant was granted an absolute discharge.

Kuczera (Re), [2018] O.J. No. 1669, Ontario Court of Appeal, J.L. MacFarland, G. Huscroft and I.V.B. Nordheimer JJ.A., March 29, 2018. Digest No. TLD-April302018007