What Can They Take During Bankruptcies?

Navigating Asset Safeguards: Unveiling What Creditors Can and Cannot Seize in Canadian Bankruptcies

When grappling with mounting debts, the concept of bankruptcy often surfaces as a potential solution. However, the fear of losing cherished possessions can be a significant deterrent. This comprehensive guide aims to demystify the intricate landscape of Canadian bankruptcy laws, shedding light on the assets creditors can and cannot claim during this process.

Understanding Bankruptcy Exemptions: A Provincial Perspective

In Canada, the laws governing bankruptcy exemptions – assets shielded from creditors – are primarily determined at the provincial level. Each province and territory has meticulously crafted its own unique list of exemptions, outlining the types of assets and their corresponding value limits that debtors can retain.

These exemptions serve as a crucial safety net, ensuring that individuals and families undergoing bankruptcy are not stripped of essential possessions necessary for maintaining a basic standard of living. By preserving certain assets, the law aims to strike a delicate balance between providing debt relief and preserving a foundation for debtors to rebuild their financial lives.

Unveiling Provincial Bankruptcy Exemptions

To illustrate the nuances of bankruptcy exemptions across Canada, let’s delve into the specifics of a few provinces:

Alberta

In Alberta, debtors can safeguard the following assets during bankruptcy:

  • Food supplies for up to 12 months
  • Clothing valued up to $4,000
  • Household furnishings and appliances up to $4,000
  • One motor vehicle worth up to $5,000
  • Equity in a principal residence up to $40,000 (reduced proportionately for co-owners)
  • Tools of the trade up to $10,000
  • Farm property essential for 12 months of operations (for agricultural debtors)

British Columbia

British Columbia’s bankruptcy exemptions include:

  • Unlimited clothing for debtors and their dependents
  • Household goods up to $4,000
  • One motor vehicle up to $5,000 (or $2,000 if behind on child support payments)
  • Tools of the trade up to $10,000
  • Principal residence equity up to $9,000 (or $12,000 in Greater Vancouver or Victoria)

Ontario

In Ontario, debtors can retain the following assets during bankruptcy:

  • All personal clothing (no value limit)
  • Household furnishings, equipment, and food up to $14,180
  • One motor vehicle up to $7,117
  • Tools and equipment used for employment up to $14,405
  • Registered Retirement Savings Plans (RRSPs) and Registered Retirement Income Funds (RRIFs), except for contributions made within the last 12 months
  • Equity in a principal residence up to $10,783
  • For farmers: livestock, fowl, bees, books, tools, and implements up to $31,379

These examples illustrate the diversity of exemptions across provinces, underscoring the importance of consulting with a Licensed Insolvency Trustee (LIT) to understand the specific regulations applicable to your circumstances.

Federal Bankruptcy Exemptions: A Nationwide Safety Net

In addition to provincial exemptions, the Bankruptcy and Insolvency Act (BIA) – the federal legislation governing bankruptcy proceedings in Canada – provides a nationwide layer of asset protection. These federal exemptions apply uniformly across all provinces and territories, further shielding certain assets from creditors’ reach.

Some notable federal bankruptcy exemptions include:

  • Goods and Services Tax/Harmonized Sales Tax (GST/HST) credits (except for unpaid trustee fees)
  • Funds held in Registered Retirement Savings Plans (RRSPs), Deferred Profit Sharing Plans (DPSPs), Registered Retirement Income Funds (RRIFs), and Locked-in Retirement Accounts (LIRAs)
  • Monies held in Registered Disability Savings Plans (RDSPs), including any payments received
  • Property held in trust for another person
  • Government benefits, such as the Canada Emergency Response Benefit (CERB), Canada Recovery Benefit (CRB), Child Tax Benefit, and HST payments
  • Most pension plans and life insurance policies

By combining provincial and federal exemptions, debtors can navigate the bankruptcy process with a clearer understanding of the assets they can potentially retain, providing a foundation for rebuilding their financial lives.

Non-Exempt Assets: What Creditors Can Claim

While bankruptcy exemptions protect certain assets, it’s crucial to recognize that creditors can still lay claim to non-exempt assets. These are possessions that exceed the prescribed exemption limits or fall outside the scope of protected categories.

Common non-exempt assets that creditors may seize during bankruptcy include:

  • Secondary vehicles (beyond the exemption limit)
  • Investments held in non-registered accounts
  • Cash held in bank accounts beyond a reasonable amount for short-term living expenses
  • Tax-Free Savings Accounts (TFSAs)
  • Registered Education Savings Plans (RESPs)
  • Jewelry, coin collections, and valuable art
  • Inheritances received during bankruptcy
  • Second homes and vacation properties
  • Rental properties
  • Tax refunds received in the year of bankruptcy filing
  • Equity in a principal residence and other assets exceeding exemption limits

It’s important to note that attempting to conceal or shelter non-exempt assets can lead to severe consequences, including potential criminal charges. Full disclosure and cooperation with the LIT are paramount throughout the bankruptcy process.

Retaining Essential Assets: Strategies and Options

While the prospect of surrendering non-exempt assets can be daunting, Canadian bankruptcy laws provide debtors with options to retain certain possessions that hold significant value or sentimental importance.

Buying Back Non-Exempt Assets

In some cases, debtors may have the opportunity to “buy back” non-exempt assets by paying the LIT the amount that exceeds the exemption limit. This approach allows debtors to retain ownership of the asset while contributing the non-exempt portion to their bankruptcy estate for distribution to creditors.

For instance, if a debtor’s vehicle is valued above the provincial exemption limit, they can pay the LIT the excess amount to retain the vehicle without further obligations.

Surrendering Assets: A Difficult but Necessary Choice

In situations where the value of non-exempt assets significantly exceeds the exemption limits or the debtor’s financial means, surrendering those assets to the LIT for sale and distribution to creditors may be the most prudent course of action.

While relinquishing cherished possessions can be emotionally challenging, it’s important to remember that bankruptcy is designed to provide a fresh start, not a punishment. By surrendering non-exempt assets, debtors can discharge their unsecured debts and begin the process of rebuilding their financial lives.

Protecting Your Principal Residence

For many Canadians, their home represents not only a significant financial investment but also a deeply personal sanctuary. Understandably, the fear of losing one’s principal residence during bankruptcy is a common concern.

Fortunately, bankruptcy exemptions in most provinces provide substantial protection for home equity, allowing debtors to retain their principal residence up to a specified limit. However, if the equity in the home exceeds the exemption threshold, debtors have two options:

  1. Buying Back the Excess Equity: Debtors can pay the LIT the amount that exceeds the exemption limit, effectively “buying back” the non-exempt portion of their home equity. This option allows them to retain full ownership of their principal residence without further obligations.
  2. Surrendering the Property: In cases where the excess equity is substantial and buying back is not financially feasible, debtors may need to surrender their home to the LIT. The LIT will then arrange for the sale of the property, with the proceeds being distributed to creditors after satisfying any outstanding mortgage obligations.

It’s important to note that filing for bankruptcy does not automatically result in the loss of one’s home. Consulting with an LIT is crucial to understand the specific implications for your principal residence and explore available options.

Navigating Vehicle Ownership During Bankruptcy

Automobiles are often essential assets for transportation and employment purposes. As such, bankruptcy exemptions in most provinces allow debtors to retain at least one motor vehicle up to a specified value limit.

If a debtor’s vehicle exceeds the exemption limit, they have two options:

  1. Paying Out the Excess Value: Debtors can pay the LIT the difference between the exempt and non-exempt value, effectively “buying back” the portion that exceeds the limit. This allows them to retain ownership of the vehicle without further financial obligations.
  2. Surrendering the Vehicle: If the equity in the vehicle significantly exceeds the exemption limit or the debtor’s financial means, surrendering the vehicle to the LIT for sale and distribution of proceeds to creditors may be the wiser choice.

It’s important to note that vehicles tend to depreciate rapidly, making it more likely for debtors to retain their primary mode of transportation during bankruptcy compared to other assets like homes.

Protecting Employment Income and Bank Accounts

One of the primary concerns for individuals considering bankruptcy is the potential impact on their employment income and bank accounts. Fortunately, Canadian bankruptcy laws provide significant protections in these areas.

Employment Income

Creditors are prohibited from targeting the income earned from a debtor’s employment during bankruptcy. Debtors can retain 100% of their take-home pay, ensuring a steady stream of income to cover essential living expenses.

However, debtors must report their monthly income and expenses to the LIT. If their earnings exceed the prescribed limit under the BIA, they may be required to make surplus income payments as part of their bankruptcy obligations.

Bank Accounts

While the money held in a debtor’s bank account is considered a non-exempt asset, the BIA allows debtors to retain a reasonable amount to cover critical expenses such as food and rent. The LIT will assess the debtor’s living costs and determine an appropriate amount to be kept in the bank account.

It’s generally recommended for debtors to open a new bank account at an institution where they do not owe money, to prevent creditors from attempting to seize funds from pre-existing accounts.

Alternatives to Bankruptcy: Preserving Assets Through Consumer Proposals

For individuals who own significant non-exempt assets and wish to avoid the potential loss of those possessions, bankruptcy may not be the ideal solution. In such cases, filing a consumer proposal can offer a viable alternative that allows debtors to retain 100% of their assets while still obtaining debt relief.

A consumer proposal is a legally binding agreement between a debtor and their creditors, facilitated by an LIT. Instead of surrendering non-exempt assets to creditors, the debtor agrees to pay a portion of their unsecured debts through a negotiated monthly payment plan.

The LIT consolidates the debtor’s debts and negotiates a fair and affordable repayment plan, typically lasting up to five years. During this period, no interest accumulates on the outstanding balance, providing debtors with a manageable path to becoming debt-free while retaining ownership of their assets.

While a consumer proposal may require ongoing monthly payments, it offers a viable alternative for individuals seeking to preserve their non-exempt assets while resolving their debt obligations.

Seeking Professional Guidance: The Role of Licensed Insolvency Trustees

Navigating the intricate landscape of Canadian bankruptcy laws and asset exemptions can be daunting, especially for those facing significant financial challenges. This is where the expertise of Licensed Insolvency Trustees (LITs) becomes invaluable.

LITs are federally regulated professionals who specialize in administering bankruptcy and insolvency proceedings. They possess in-depth knowledge of the applicable laws, regulations, and exemptions specific to each province and territory.

By consulting with an LIT, debtors can gain a comprehensive understanding of their rights, obligations, and the potential implications of bankruptcy or alternative debt relief solutions on their assets. LITs can provide personalized guidance, helping debtors make informed decisions that align with their unique financial circumstances and long-term goals.

Final Thoughts: Embracing a Fresh Start

Confronting financial challenges and considering bankruptcy can be an emotionally and mentally taxing experience. However, it’s important to remember that the bankruptcy process is designed to provide a fresh start, not a punishment.

While the fear of losing cherished possessions is understandable, Canadian bankruptcy laws strike a delicate balance between providing debt relief and preserving a foundation for debtors to rebuild their financial lives. By understanding the nuances of bankruptcy exemptions and seeking professional guidance from Licensed Insolvency Trustees, individuals can navigate this process with greater clarity and confidence.

Ultimately, embracing the opportunity for a fresh start can be a liberating and empowering experience, allowing debtors to shed the burden of overwhelming debt and embark on a path towards financial stability and personal growth.

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