What is Bankruptcy? What is a Proposal? What are my Duties? Will My Creditors Stop Harassing Me? Who Will Know? How Do I Go Into Bankruptcy? How Much Am I Allowed to Keep? Will I Lose My House or Car? Are My Spouse's Assets and Liabilities Affected by the Bankruptcy?

What About My Wages During Bankruptcy? What Debts are Not Erased by a Bankruptcy? What About My Alimony or Maintenance? How Much Does it Cost? What is Counselling and Do I have to Take it? What Happens During Bankruptcy? When is my Bankruptcy Over? What About my Student Loans? What are the alternatives to bankruptcy?

What is Bankruptcy?

View this PowerPoint presentation for an  overview of the bankruptcy process.

Bankruptcy is a legal process that is available to anyone, who is hopelessly burdened with debt, to get a fresh financial start. To go into bankruptcy you must be insolvent, which means:

 

What are my Duties?

 

Will My Creditors Stop Harassing Me?

 

 Who Will Know?

Unless you are a prominent person it is likely that only your creditors will know you have filed bankruptcy.

If you have minimal assets, your creditors are notified by mail only. There is no advertisement placed in the local newspaper. However, all bankruptcy filings are public and the general public may access the documents. In a bankruptcy, where there are significant assets, a notice is placed in the legal section of the newspaper notifying creditors of the date of the meeting of creditors. When the documents are filed with the Superintendent of Bankruptcy, the Credit Bureau is notified and the bankruptcy is recorded and will remain on your credit record for six years from the date of your discharge.

 

How Do I Go Into Bankruptcy?

There are two ways a person can become a bankrupt. The first and most common way is to make an assignment in bankruptcy (voluntary bankruptcy). The second and rarely used way is for creditors to ask the court to make an order that a person is bankrupt (involuntary bankruptcy). In both cases a Trustee in Bankruptcy is required to administer the process.

Usually, you complete an application form and provide it, along with all related information and documentation, to the Trustee. The Trustee will meet with you to ensure that bankruptcy is the most appropriate option in your circumstances. The Trustee then prepares the bankruptcy documents for you to sign. Once they are signed and filed with the Superintendent of Bankruptcy, you are officially bankrupt.

 

How Much Am I Allowed to Keep?

By law, you are entitled to keep up to $34,000 of equity in specified assets, in addition to certain pensions and insurance policies.

An individual in Ontario is allowed to to keep up to $34,000 of equity in specified assets, in addition to certain pensions and insurance policies.

 

 

 

Clothing	$ 5,650.00
Household Goods	$11,300.00
Tools of the Trade	$11,300.00
Farmers	$28,300.00
Motor Vehicle	$  5,650.00

 

 

 

 

 

 

 

 

• Effective July 7, 2008 exemptions are in effect for all registered retirement savings plans (RRSP's, RRIF's and DPSP's (Deferred Profit Sharing Plans).

  • Contributions made in the 12 months prior to the date of bankruptcy will be recovered (clawed back) for the benefit of the bankruptcy estate for RRSPs in provinces without RRSP exemption laws (BC, Alberta, Ontario, NB, and NS);
  • There will be no upper cap on the amount of RRSPs that can be protected;
    
  • There will be no need to set up the RRSPs in a locked in plan to make them eligible for exemption;
  • The court will have no jurisdiction to extend the one year claw back period period in an appropriate case.

 

Will I Lose My House or Car?

This depends on how much equity you have. With a house for example, your equity would be the amount left over after mortgages, penalties and property taxes are taken into account. If your equity in the asset is within the allowable limit, then the Trustee will generally release the asset to the secured creditor. You and the secured creditor would then make arrangements for you to keep the asset and continue making the mortgage or loan payments. If your equity exceeds the exemption limit, arrangements can often be made with the Trustee for you to "buy back" anything over the exemption limit in order to keep your assets.

 

Are My Spouse's Assets and Liabilities Affected by the Bankruptcy?

Your spouse's assets and wages are not affected if you file bankruptcy.

Not directly. Husbands and wives are separate individuals. Therefore, unless the spouse also files bankruptcy, the spouse's assets and liabilities are not affected. However, where assets are owned jointly, e.g. a house or car, it is the Trustee's responsibility to liquidate the one-half interest owned by the bankrupt. Also, if both spouses signed a debt, then the bankruptcy of one spouse means the other is now liable for the full debt.

 

What About My Wages During Bankruptcy?

You must report your income to the Trustee each month. However, earnings after the start of a bankruptcy, such as wages, salaries or commissions, belong to the bankrupt person and are not normally interfered with by the Trustee. There are standards supplied to the Trustee by the Superintendent of Bankruptcy, which instruct the Trustee to collect funds, for the benefit of creditors, from any earnings above what is reasonable for the number of people in the family and the bankrupt's personal situation.

 

What Debts are Not Erased by a Bankruptcy?

Certain types of debts are not erased by bankruptcy. They include:

• Fines imposed by a court;

• Debt incurred by misrepresentation or fraud;

• Alimony or maintenance payments;

• Debt for damages imposed by a Civil Court for intentional bodily harm, sexual assault or wrongful death;

• Student loans, if bankruptcy occurs within 7 years of ceasing to be a full or part time student.

Also, bankruptcy does not generally interfere with secured debts (i.e. a mortgage or vehicle lease) if there is no equity in the secured asset.

 

What About My Alimony or Maintenance?

Alimony or maintenance payments are not affected by bankruptcy. These payments must be kept up-to-date. A bankruptcy does not stop any actions for collection.

 

How Much Does it Cost?

In most cases the cost of a bankruptcy is less than $200 a month for each of 9 months.

Our Predictor will tell you what your bankruptcy will cost and how long you will be in bankruptcy. Go to the Predictor.

In the simplest cases it usually amounts to $1,800, which includes all necessary filing fees, disbursements, taxes and counselling fees. Our firm will allow you to pay these fees over time.

 

What is Counselling and Do I have to Take it?

You are required to take 2 counselling sessions in order to be eligible for a discharge in 9 months.

You must take counselling in order to be eligible for an "automatic nine month discharge". The counselling can be one-on-one, with you and your Trustee, or if you prefer, it can be in a group consisting of other bankrupts and your Trustee. The first counselling session must be held between 10 and 60 days following bankruptcy; the second counselling session must be held no later than 210 days following the date of bankruptcy.

 

What Happens During Bankruptcy?

You must be co-operative and respond to the Trustee's requests in providing all information required during your bankruptcy. You must keep the Trustee informed as to where you are living and as to any material changes in your circumstances, you must also provide the Trustee with monthly reports of earnings and expenses. The Trustee will provide you with the appropriate forms to be filled in to provide the necessary information. As well, there may be a meeting of creditors approximately 1-2 months after the commencement of the bankruptcy in which the bankrupt is required to attend. These meetings are usually held at the office of the Trustee.

 

When is my Bankruptcy Over?

The majority of people are out of bankruptcy in 9 months, at which time most of the debtor's debts are erased.

 

 

What About my Student Loans?

Student Loans can be erased in a bankruptcy if the student was in school 7 or more years ago. This amendment will apply where the debtor obtains his or her discharge on or after July 7, 2008 (PROVIDED that at the time they filed they had ceased to be student for the required seven years) or the debtor had or becomes bankrupt on or after July 7, 2008. 

The amendment that will reduce to five years the period a bankrupt will have to wait to make a “hardship” application to have student loan debt or obligation discharged (BIA , s. 178 (1.1)) is also now in force.  This amendment applies to all debtors notwithstanding when the bankruptcy or the process that results in the bankruptcy is initiated.

What are the alternatives to bankruptcy?

Contact Your Creditors

Explain why you cannot make your payments and suggest an arrangement that could work for both of you. You may be surprised that many creditors are more than willing to co-operate.

Consolidation Loan

You can approach a bank or financial institution about combining or "consolidating" your debts into one loan. This creditor pays off all your debts and, in return, you make a monthly payment to that creditor. Make sure you shop around - interest rates vary. Avoid further credit purchases; this could make your debt load too great for you to handle.

Credit Counselling

Credit counselors will contact your creditors and attempt to work out a repayment plan that is satisfactory to both you and your creditors. In some cases they can work with you and your creditors to set up a payment plan that will allow you to pay your creditors in an orderly way and thus help preserve your credit rating. This operates similar to a debt consolidation loan except you do not borrow the money to pay off your creditors.

Proposals

View this PowerPoint presentation for an
overview of the Consumer Proposal process.

Under the Bankruptcy and Insolvency Act, a Trustee or an administrator files a Proposal or an arrangement between you and your creditors to have you pay off only a portion of your debts, extend the time you have to pay off the debt, or provide some combination of both. To be acceptable, your creditors must be better off under a Proposal than if you go bankrupt.

There are two types of Proposals an individual can file:

• Consumer Proposal - A person is eligible if his aggregate consumer and commercial debts, excluding debts secured by a principal residence, do not exceed $250,000. The consumer proposals cannot be for more than five years. If the creditors do not accept the Proposal the debtor is not automatically bankrupt. Counselling is required;

• Other Proposal - There is no restriction on the amount a person owes. If the creditors do not accept the Proposal the person is automatically bankrupt effective as at the date of the creditors' meeting. Counselling is not required.