Maguire (Re)

Maguire (Re)

Because the material did not permit an accurate determination of the bankrupt's actual earnings, it was inappropriate to order a specific fixed monthly payment under s.68; instead the appropriate remedial order is to require the employer or successor employer to remit monthly one-half of the bankrupt's net earnings in excess of a $2,000 base amount retained by the bankrupt.

Citation
2001 NSSC 214
Parties
Bankrupt: Thomas John Maguire; Trustee: Green Haley Wedlake Inc.; Inspector of the Bankrupt's Estate: Shirley Hickey
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
5 February 2001
Procedural Posture
Bankruptcy / Hearing/decision on Trustee's Application Under Section 68 of the Bankruptcy and Insolvency Act; Supplementary Reasons Issued
Outcome
Trustee's section 68 application granted in modified form; specific fixed monthly payment refused due to uncertain earnings.
Legal Topics
Section 68 BIA, Remittance Orders, Earnings Assessment
Source Language
English
Bankruptcy and Insolvency Law Section 68 BIA Remittance Orders Earnings Assessment

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Parties

Thomas John Maguire

Bankrupt

Green Haley Wedlake Inc.

Trustee

Shirley Hickey

Inspector of the Bankrupt's Estate

Procedural Posture

Bankruptcy / Hearing/decision on Trustee's Application Under Section 68 of the Bankruptcy and Insolvency Act; Supplementary Reasons Issued

Legal Issues

  1. 1 Whether a fixed monthly payment order under s.68 BIA is appropriate given uncertain evidence of the bankrupt's earnings
  2. 2 Whether the employer can be ordered to remit a portion of the bankrupt's earnings monthly to the trustee

Ratio Decidendi

Because the material did not permit an accurate determination of the bankrupt's actual earnings, it was inappropriate to order a specific fixed monthly payment under s.68; instead the appropriate remedial order is to require the employer or successor employer to remit monthly one-half of the bankrupt's net earnings in excess of a $2,000 base amount retained by the bankrupt.

Court Disposition

Trustee's section 68 application granted in modified form; specific fixed monthly payment refused due to uncertain earnings.

Orders

  • Refused: order for a specific fixed monthly payment under section 68, because earnings could not be accurately determined.
  • Granted: order requiring the employer, or any successor employer, to remit to the trustee monthly one-half of the bankrupt's net earnings in excess of a base amount of $2,000 which the bankrupt may retain.