Bankruptcy, sometimes it is the only option.
The bills are piling up. The collection agencies are calling. At night you lie awake, wondering how you’re ever going to cope with your debts. What should you do??
There’s no one-size-fits-all answer to that question. In purely financial terms, the answer depends on:
- Your current situation and your future prospects. Is the financial burden based on a short term item, such as a temporary lapse of income. Or perhaps over years have you created a credit house of cards?
- Perhaps you feel you tried everything, new budgets, debt management plans, counselling, debt consolidation. At what point does it make sense to throw in the towel and file for bankruptcy?
- We have professionals to help you figure out the best solution, whether consumer proposal or filing bankruptcy.
For now, let’s explore the purely financial and legal aspects of bankruptcy, process information provide by Office of the Superintendent of Bankruptcy
Declaring Canadian Bankruptcy
Bankruptcy is a legal process that can provide relief to honest but unfortunate debtors. When you are in bankruptcy, no unsecured creditor can garnishee your wages or initiate any other collection action against you.
However, bankruptcies generally do not affect the rights of secured creditors, i.e., those who have a valid security against your property, such as a car or a house.
A bankruptcy can only be filed through a trustee in bankruptcy, an individual licensed by the Office of the Superintendent of Bankruptcy (OSB) to administer the bankruptcy process.
Note: Your own bankruptcy does not affect the liability of anyone who guaranteed or co-signed a loan on your behalf. Your spouse, for example, may be accountable for liabilities incurred jointly with you. It is, therefore, important to make the trustee aware of joint liabilities.
Step 1: Contact a trustee and attend a meeting with him or her to talk about your personal situation and your options. The meeting is completely confidential and no charge or obligation to you.
The trustee will evaluate your financial situation and provide you with an explanation of the merits and consequences of the various options available to help you to solve your financial problems.
Step 2: Work with the trustee to complete the required forms. The trustee will then file the bankruptcy with the Office of the Superintendent of Bankruptcy.
The trustee will prepare the necessary documents and file them with the OSB. You will then formally be declared bankrupt. From that point on, the trustee will deal directly with your creditors.
Once you are bankrupt,
- you will stop making payments directly to your unsecured creditors;
- Student loans have special rules in the BIA regarding bankruptcy
- garnishments against your salary will stop; and
- lawsuits against you by your creditors will be stayed (stopped).
Step 3: The trustee sells your assets and you make payments to the trustee.
The trustee will then sell your assets, except those exempted by provincial and federal laws, and hold the proceeds in trust for distribution to your creditors. This includes all existing assets as well as those acquired prior to the discharge of your bankruptcy.
Once you have filed for bankruptcy, you cannot dispose of any assets assigned to the trustee.
During the bankruptcy, you will also be required to make payments to your trustee for distribution to your creditors.
The trustee determines how much you will be required to pay. He or she calculates the amount by taking into account your total income, income standards issued by the OSB, and your personal and family situation.
Step 4: The trustee notifies your creditors of the bankruptcy.
The trustee will notify all of your creditors about your bankruptcy. Depending on the expected size of your bankruptcy estate and whether or not there are requests from creditors or the OSB, there may be a meeting of creditors.
Step 5: You attend a meeting of creditors, if one is called.
The purpose of this meeting is to
- allow creditors to obtain information about the bankruptcy;
- confirm the appointment of the trustee;
- appoint up to five inspectors to supervise the administration of your estate; and
- allow creditors to give directions to the trustee.
Step 6: You attend an examination by an officer at the OSB, if required.
After filing for bankruptcy you may be examined under oath by a representative of the OSB. The purpose of the examination is to question you, the bankrupt, with respect to your conduct, the causes of the bankruptcy and the disposition of your property.
Step 7: You attend two counselling sessions.
The purpose of the counselling is to help you discover and understand the causes of your bankruptcy. These sessions will also provide information to assist you in managing your financial affairs in the future.
Step 8: The trustee prepares a report to the OSB describing your actions during the bankruptcy.
In certain circumstances, the trustee prepares a report regarding your application for discharge. This report describes your financial situation and analyzes
- your financial affairs;
- the causes of the bankruptcy;
- the manner in which you performed your duties under the Bankruptcy and Insolvency Act (BIA);
- your conduct before and after the bankruptcy;
- whether you were convicted of any offence under the BIA (sections 198 to 208); and
- any other fact that could justify the Court refusing to your discharge.
Step 9: You attend the discharge hearing, if required.
You will be automatically discharged nine months after filing for bankruptcy if the following conditions are met:
- this is your first bankruptcy;
- your discharge is not opposed by the Office of the Superintendent of Bankruptcy, the trustee or a creditor;
- you have not refused or neglected to receive counselling; and
- you are not required to pay a portion of your surplus income into the bankruptcy estate as per the standard established by the OSB.
If you are required to make payments from your surplus income, you will be eligible for an automatic discharge after contributing part of the surplus to your estate for 21 months.
For a second bankruptcy, if payments from surplus income are not required, automatic discharge takes place 24 months after the date of the bankruptcy. Second-time bankrupts with surplus income, however, are required to contribute part of the surplus to their estate for 36 months, after which they are eligible for an automatic discharge.
Normally, when an individual files for personal bankruptcy, they are declaring to the courts and their creditors that they are insolvent (unable to pay their debts as when they become due and have insufficient equity in their assets to cover those debts). Personal bankruptcy usually results in:
- settlement of your assets not including assets claimed as exempt property that you are entitled tokeep (Your Trustee will explain),
- disbursement to the creditors, and
- release from the legal requirement to pay those creditors covered in the bankruptcy.
Some debts are excluded in bankruptcy. If you have any questions regarding your debt’s ability to be eliminated in bankruptcy – be sure to ask your Trustee.
The is a very detailed process in determining how long you will be kept in bankruptcy and how much you will pay during the time you are in bankruptcy. Click here for more details on length of bankruptcy.
Personal bankruptcy in Canada is governed mainly by the:
Despite changing social views which have reduced the stigma attached to personal bankruptcy, declaring bankruptcy in Canada is a very serious, complex legal action that should only be taken after all other debt repayment options have been explored?