We’ve collected the most common questions about bankruptcy. Here’s how it all works with simple language and clear examples.
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If you file for bankruptcy, Canada Revenue Agency (CRA) is notified as part of the bankruptcy process.
As part of the bankruptcy, a pre-bankruptcy tax return will usually be completed by the Licensed Insolvency Trustee (LIT) administering your bankruptcy. Any income tax owed will be included in the bankruptcy; any refunds due to you will be kept by the LIT and form part of the disbursements to your creditors.
Below are the most common returns that will be required pre and post bankruptcy.
You will usually be asked to be current on all tax returns prior to filing for bankruptcy. If your tax returns have not already been filed, the LIT may be able to assist you with this
As part of the bankruptcy process, the LIT will file a pre-bankruptcy return which is for the partial year the bankruptcy was filed. This will cover from January 1st to the date of bankruptcy.
At the time of discharge a post-bankruptcy return will be completed by the LIT. It covers the period from the date of bankruptcy to December 31st. If there is an amount owing from the post bankruptcy return, it will need to be paid by you.
However, if there is a refund, it will be sent to the LIT for the benefit of the creditors.
Personal income tax debts are treated the same as unsecured debts and are included in your bankruptcy. If it’s a second bankruptcy, with CRA debt included in both, CRA may oppose your discharge from bankruptcy.
Once you file for bankruptcy, if you are owed a GST/HST rebate it is part of the bankruptcy estate and will be sent directly to your LIT.
Filing for bankruptcy will not impact your CCB benefit, however, as this is a source of income, you must include the CCB when reporting your household income which may impact your surplus income payment during bankruptcy.
Yes. In order to qualify for a mortgage after you file for bankruptcy you will usually need to be fully discharged from your bankruptcy for at least two years. The bankruptcy does not need to be fully removed from your credit report (6 years from discharge) as many people believe.
However, there are a number of other factors that enable you to qualify for a mortgage regardless of having previously declared bankruptcy; they are as follows:
When looking at the credit score post bankruptcy it doesn’t come down to if the bankruptcy is still showing on the credit report, it comes down to how long since you were discharged and what have you done since then.
As a rule of thumb (and every lender views things differently) you should have three positive reporting credit lines (i.e. credit cards, line of credit, etc). Ideally, two of these should have limits of over $2,500 which have been reporting positively for at least 2 years post bankruptcy.
This shows the importance of starting your credit rebuilding as soon as you are discharged from a bankruptcy vs waiting until you need to apply for credit see How to rebuild credit after a bankruptcy or consumer proposal.
Lenders want to see that you can responsibly use credit again. For this reason, having only one secured credit card is not enough evidence when it comes to applying for a mortgage.
A secured card is great to have as a positive reporting tradeline but when it comes to getting a ‘significant’ tradeline look for the following:
Lenders want to see that you can responsibly use credit again. For this reason, having only one secured credit card is not enough evidence when it comes to applying for a mortgage. A secured card is great to have as a positive reporting tradeline but when it comes to getting a ‘significant’ tradeline look for the following:
These tradelines must be new items obtained post bankruptcy discharge.
In order to have the best chance of qualifying you should also look at the following:
Bigger is better when it comes to a down-payment; the bigger the down-payment the less risk for the lender. Try to save up in order to put down more than the minimum 5%.
Plan ahead, create a budget and understand what’s an affordable mortgage payment for you. Before you submit the application, correct any inaccuracies on your credit report and speak with a mortgage broker about what it’s going to take to qualify.
Only apply when you are ready and the mortgage broker has confirmed you have a high chance of approval.
If you receive any type of windfall or inheritance after filing for bankruptcy and before you are discharged from bankruptcy, these assets must be disclosed to the LIT administering your bankruptcy.
This includes bonuses, any type of property, gifts, inheritance, or winnings. The Licensed Insolvency Trustee (LIT) will then determine if the assets are exempt or need to be liquidated and distributed amongst your creditors.
There are some exceptions, but generally any property you receive after you are fully discharged from bankruptcy does not need to be reported to the LIT and is yours to keep.
Inheritance is different as although you may receive the funds after your discharge date, the date you receive the funds isn’t the critical date in the eyes of the bankruptcy.
If you are a beneficiary of an estate and the person dies prior to you filing for bankruptcy the pending inheritance needs to be disclosed to your LIT.
When the funds are received they must be given to the LIT to be distributed amongst your creditors. It could be years after you are discharged from bankruptcy that you receive the funds, but it doesn’t matter, the LIT and the creditors are entitled to funds
If you are a beneficiary of an estate and the person dies during your bankruptcy, the same applies. The pending inheritance will need to be disclosed to your LIT and when received the funds must be given to the LIT to be distributed amongst your creditors.
If the death occurs after you are discharged from bankruptcy its yours to keep and doesn’t need to be disclosed.
If you are bankrupt or need to file for bankruptcy and believe you are going to receive an inheritance, there may be steps you can take to receive some or part of the inheritance.
First, you should seek advice, independent of your LIT, to ensure you are not doing anything that could be deemed fraudulent. Remember, the LIT has duties to the creditors and the Bankruptcy Act and is restricted on the advice they can provide you, so you should seek advice from your own representative.
There are options available which differ depending on whether you have or have not yet filed for bankruptcy.
If you are already in bankruptcy, you may be able to file a consumer proposal out of bankruptcy, which would basically annul the bankruptcy. You would then agree a new formal payment arrangement with the creditors.
If you haven’t filed for bankruptcy yet, you may consider making an informal proposal to your creditors and offer to repay a portion of the debt through a one time lump sum payment.
The disclosure requirement may be less when settling informally with creditors vs filing under the Bankruptcy and Insolvency Act.
There are some debts that even bankruptcy cannot deal with. These include:
Your ability to earn an income and or a salary when you file for bankruptcy is not affected. However during bankruptcy, under the Bankruptcy & Insolvency Act (BIA), you are given an allowance based on your family size and situation.
If your income is above the allowance, you may be required to contribute 50% of the excess amounts into the bankruptcy estate. This money is paid to the LIT and after they take their fees, it is then paid to the creditors.
This is referred to as ‘surplus income’ payments.
Canada Pension Plan (CPP) and Old Age Security (OAS) is not affected if you file for bankruptcy and you will continue to receive these payments. This is counted as income and must be reported to the LIT during your bankruptcy and may impact your surplus income payment.
During a bankruptcy, each month you must report your monthly income. You are given an allowance based on your family size.
This amount is set by The Office of the Superintendent of Bankruptcy (OSB) and is meant to represent what income is required to maintain a reasonable standard of living during your bankruptcy.
It is set nationally, and although some provinces have a much higher cost of living, this is unfortunately not reflected in the allowance. The guidelines are reviewed and updated annually.
During the bankruptcy you pay back 50% of income earned above the allowance for your family size minus certain non-discretionary expenses such as child support and alimony payments.
Here’s an example based on the 2018 family income threshold:
For a single person the income allowance is $2,152. So, if you earn a net income of $2,852 in a month, your surplus income would be $700 ($2,852 – $2,152).
Therefore your payment into the bankruptcy would be $350 (50% of $700) a month if your income remains at this level.
If your surplus income is less than $200 you are not required to pay any amount to the LIT.
If your surplus income is greater than $200 you are required to pay 50% of the monthly surplus income to the LIT.
Yes. Bankruptcy or a consumer proposal will prevent any future garnishments and stop any current garnishments other than for child or spousal support.
Although this is critically important to understand, it should not be the determining factor in dealing with your debt. Your credit can be re-established over time; dealing with the financial stress and improving cash flow should be your priority.
Bankruptcy reports as an R9, which is the lowest rating that the credit bureaus issue. The bankruptcy is listed under public records on your credit report for six years after you are discharged from bankruptcy.
Bankruptcy is a permanent record. If on future credit or other applications it asks if you have ever declared bankruptcy you must answer yes, even if it has dropped off of your credit rating.
Once you have been discharged from bankruptcy, you will need to wait approximately 60 days. After that, pull up your credit report to ensure that your credit record has been updated under public information. If it’s not reporting correctly you will need to send in your discharge papers and request the update.
This depends on a couple of things, the main two being:
Surplus income:
If your income is above the family guidelines for your family size, your bankruptcy may extend from 9 months to 21 months
Have you been bankrupt before?
If you have, you will usually be in bankruptcy for 24 months if you don’t have surplus income. If you do have surplus income then the period is usually 36 months.
If you do not have surplus income and have not been bankrupt before you will be eligible for automatic discharge after the minimum period of nine months.
Other factors impacting the length of time you may be held in bankruptcy include:
Completing all your bankruptcy duties:
If you do not complete all the duties then you will not be discharged from bankruptcy.
Provided that there are no joint debts or joint assets or your spouse has not co-signed any of your debts, filing for bankruptcy will not have a direct impact on your spouse.
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