CANADIAN BAR ASSOCIATION ALBERTA LAW CONFERENCE EDMONTON, ALBERTA TEETERING ON THE BRINK - STRATEGIES AVAILABLE WHEN YOUR CLIENT IS FACING INSOLVENCY

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1 CANADIAN BAR ASSOCIATION ALBERTA LAW CONFERENCE EDMONTON, ALBERTA TEETERING ON THE BRINK - STRATEGIES AVAILABLE WHEN YOUR CLIENT IS FACING INSOLVENCY January 28th, 2011 Presented by: Susan L. Robinson Burns, Q.C. MILES DAVISON LLP 1600 Bow Valley Square II 205-5th Avenue S.W. Calgary, Alberta T2P 2V7 Telephone: (403) Fax: (403) sburns@milesdavison.com

2 BIOGRAPHICAL SKETCH SUSAN L. ROBINSON BURNS, Q.C. is a partner of the law firm Miles Davison LLP in Calgary, Alberta. She is a graduate of the University of Calgary (Bachelor of Commerce) and Osgoode Hall Law School (Bachelor of Laws). She was called to the Alberta Bar in 1980 and appointed a Queen's Counsel in She has practised extensively in the areas of insolvency and commercial law, including secured financings, security enforcement, receiverships, bankruptcies and proposals. Ms. Burns has presented many papers on insolvency, civil enforcement and Personal Property Security Act topics for the Legal Education Society of Alberta, the Canadian Bar Association, the Canadian Association of Insolvency and Restructuring Professionals and other groups. She has published articles in the Law Society of Alberta Benchers' Advisory and the National Creditor Debtor Review. Ms. Burns taught the Bar Admission Course (Creditors' Rights) for a number of years. She was a member of the Office of the Superintendent of Bankruptcy's National Management Advisory Board for many years and she has served on several advisory committees for the Alberta Law Reform Institute.

3 TEETERING ON THE BRINK - STRATEGIES AVAILABLE WHEN YOUR CLIENT IS FACING INSOLVENCY January 28th, 2011 TABLE OF CONTENTS Page I. Planning Considerations Before There Is Any Insolvency... 1 (a) Organizational Structure... 1 (b) Directors Liabilities... 2 (c) Separate Family Assets from Business Liabilities... 3 (d) Exemptions... 4 (e) Secure Shareholder Advances and Guarantees... 6 (f) Priority Issues... 5 II. General Principles If Your Client Is Insolvent Or On the Eve of Insolvency... 8 III. Position Once a Bankruptcy Assignment is Filed... 8 (a) Principal Residence... 8 Pelkey Guidelines (b) (c) (d) Other considerations regarding the sale or other realization by a Trustee of a bankrupt's non-exempt assets Partition and Sale Proceedings (where the bankrupt co-owns property with another, often his or her spouse) Dower Issues (where the bankrupt is the sole owner of the homestead) (e) Matrimonial Property Claims The "New" Alberta Rule (f) Certificates of Lis Pendens (Matrimonial Property Actions)... 33

4 IV. Protecting Your Retainer V. Recent Amendments to the BIA Affecting Individual Bankrupts (a) Bankrupts with high income tax debt (b) Discharge of second-time bankrupts (c) Surplus Income (1) Requirement to Pay Surplus Income (2) Definition of Income (d) Treatment of RRSPs and RRIFs (e) Consumer Proposal Amendments (f) Student Loans Acknowledgments... 47

5 TEETERING ON THE BRINK - STRATEGIES AVAILABLE WHEN YOUR CLIENT IS FACING INSOLVENCY I. PLANNING CONSIDERATIONS BEFORE THERE IS ANY INSOLVENCY the time to plan for financial reversals is when your client doesn't need it - when your client is successful and solvent - ideally from "day 1" planning is a matter of risk tolerance and balance - consider business risks, family needs and dynamics, tax strategies - don't let the tail wag the dog - beware of unduly complicated structures which can be expensive to set up and difficult to properly document over time and maintain (a) Organizational Structure limited liability corporations instead of a partnership or sole proprietorship? use of a holding company ("holdco") and an operating company ("opco") - "holdco" owns the tangible assets - land and building, equipment, vehicles - "opco" conducts the business with assets leased from holdco - opco has the operating liabilities

6 use separate corporations for different lines of business and spread the risk (but there are tax considerations and this increases paper work)? Food for Thought should your client incorporate his/her small business? will the advantage of limited liability justify the extra expense and paperwork? should your client have more than one company? (b) Directors Liabilities directors of a corporation have personal liability for certain corporate obligations, by statute, for example: wages source deductions GST environmental liabilities but not for: WCB corporate income tax a person (eg. spouse) can be a shareholder of a corporation without being a director a person (eg. spouse) can have "signing authority" and act as an officer without being a director