When looking into bankruptcy, one of the questions that are always on the forefront of someone’s mind is, “How long does bankruptcy in Canada last?” As with any legal process, there are many variables, and the most efficient way to obtain specific answers to your questions is to go through a Licensed Insolvency Trustee. There are, however, some guidelines that will give you a good place to start.
Bankruptcy in Canada ends when the bankrupt receives a “bankruptcy discharge”. If this is the first time someone has declared bankruptcy.
Duties of a Bankruptcy in Canada
Bankruptcy in Canada is not meant to be a punishment, but, rather, a legal way to provide a clean financial slate, there are still certain duties that a bankrupt must complete in order to receive a discharge.
One of these duties will include surrendering credit cards and certain (non-exempt) assets to the trustee. Others can include attending any meetings requested by creditors, providing the trustee with the appropriate paperwork to complete outstanding tax returns (i.e. T4 slips), disclosing a monthly total of household income and living expenses along with documentation (such as pay stubs), and attending two financial counselling sessions.
Along with these, a bankrupt must also be sure to inform their trustee of any change of living arrangements and respond to all of the trustee’s requests in a timely manner. Should the trustee feel that someone is not completing their duties as required? It could lead to them challenging a bankrupt’s discharge (called “opposing the discharge”).
Opposition
Although uncommon, it is possible for one of the parties involved to oppose the bankruptcy discharge. This usually happens if it is believed that the bankrupt did not complete their duties, or that they haven’t been completely honest in their dealings with the trustee or creditors. In the case of opposition, the matter can be taken to Court. If the only dispute surrounds the bankrupt’s surplus income. The matter would go to mediation with the Office of the Superintendent of Bankruptcy.
Surplus Income
An important piece of bankruptcy in Canada is something called “surplus income”. Using calculations based on family size and household income, the government has set a level of take-home pay that a bankrupt can make to ensure that the family is reasonably provided for, without having to make additional payments to the trustee.
A bankrupt must provide income information, such as pay stubs and monthly reports, to the trustee. Which they will then use to calculate whether the bankrupt has surplus income (or not). If the bankrupt has taken home more than $200 per month in excess of the income ceiling.
This, again, is not meant to be punitive. But is used to assist in paying creditors a portion of what they’re owed and contributes to a bankrupt’s rehabilitation. Although there is nothing wrong with having a surplus income. It is likely that a bankrupt with surplus income will have their term of bankruptcy extended to twenty-one months. Rather than the usual nine. In a second time bankruptcy, the usual length of a file is twenty-four months and extends to thirty-six months where there is surplus income (more on this below).
Number of Filed Bankruptcy in Canada
If someone has filed bankruptcy more than once, a nine-month automatic discharge will no longer be available to them. Such as a bankrupt having a surplus income. If this is the case, the time extension is another twelve months, which brings the length of the file to thirty-six months.
Should an individual need to file for a third bankruptcy, an automatic discharge will no longer be an option, and the Licensed Insolvency Trustee will need to go through the process of applying to a bankruptcy court in order to arrange a discharge hearing, at which time the Court will determine how long the file will last.
Discharge
After completing all necessary duties and requirements. Something that may still affect the length of time in bankruptcy is the type of discharge someone receives. Under the laws that govern bankruptcy in Canada, four types of Court Orders are possible:
- Absolute discharge
- Conditional discharge
- Suspended discharge
- Refusal of a discharge
In a standard bankruptcy, it is most common to see an absolute discharge. The bankruptcy released from the debts.
Some cases will result in bankruptcy receiving a suspended discharge. But it will not take effect until a later date.
In order to receive specific advice and information, and to go over options that may be considered before beginning the bankruptcy process, it is important to consult with a Licensed Insolvency Trustee and create a plan of action that best suits your needs.
