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CANADA RECOVERY BENEFIT ACT: EVERYTHING YOU NEED TO KNOW IF CRA IS IN BATTLE WITH YOU FOR REPAYMENT

canada recovery benefit act

A new phase for the Canada Recovery Benefit

The Canada Recovery Benefit (CRB) was part of the Canadian government’s overall economic recovery programs to help Canadian individuals and businesses during the COVID-19 period. It was a taxable benefit of $500 per week that lasted for up to 26 weeks. It was given to employed and self-employed workers directly affected by COVID-19. The Canada Recovery Benefit gave financial support to eligible workers who could not work and tried to provide some measure of recovery in response to the COVID-19 pandemic. This includes self-employed workers, contract workers, and part-time workers.

The benefit was paid out for a maximum of 26 weeks in respect of any application under this program and was available to workers who lost their job, were sick or quarantined, were taking care of someone who was sick with COVID-19, or was caring for children who are not in school because of COVID-19.

We’re in a new phase with the Canada Recovery Benefit now. It was phased out some time ago. Since the money was given out so quickly, there wasn’t any checking to see whether the person applying for this benefit actually qualified. Now the Canada Revenue Agency (CRA), which is in charge of the program, is checking all of the applications.

The CRA is currently investigating all applications for the program to ensure that everyone who received funding met the eligibility criteria. They’re sending out letters asking for proof of eligibility, and if people can’t provide that, they’re asking for the money back. We have done the bankruptcy of several individuals who did not have the money to repay, as they spent it on things like food and shelter.

In this Brandon’s Blog, I explain in more detail what the Canada Recovery Benefit was and describe a recent court decision about someone who CRA demanded the money back from and the kind of proof that CRA is demanding to see if a person met the eligibility criteria.

Canada Recovery Benefit – Closed: How the Canada Recovery Benefit used to work

The Canada Recovery Benefit plan stopped accepting retroactive applications as of December 23, 2021.

The Canada Recovery Benefit was created to help those who have been directly affected by COVID-19 and are not eligible for Employment Insurance. The Canada Revenue Agency is responsible for administering this benefit.

Depending on when you applied for the Canada Recovery Benefit, you may have received either $1,000 ($900 after taxes withheld) or $600 ($540 after taxes withheld) for 2 week periods, for no more than 13 two-week periods. The Canada Recovery Benefit was available between September 27, 2020, and October 23, 2021.canada recovery benefit act

Who was eligible for and what were the requirements for Canada recovery benefit?

The Canada Recovery Benefit was established under federal legislation, the Canada Recovery Benefits Act (S.C. 2020, c. 12, s. 2) To be eligible for the CRB for a 2-week period, you must have met the following conditions:

  • A resident of Canada and present in the country during the two-week period being applied for.
  • Be at least 15 years old on the first day of the two-week period.
  • Have a valid Social Insurance Number.
  • Due to the pandemic, either your work has stopped and you are available for work, or you continue to work but have had a 50 percent reduction in your employment/self-employment income in the two-week period as compared to an average two-week period in the previous year.
  • Must have had employment and/or self-employment annual income of at least $5,000 in either 2019 or 2020 or in the 12 months preceding a CRB application. Keep in mind if you are self-employed that income losses from self-employment will make you ineligible. Although it was never properly defined, CRA looks at net income, not gross income.
  • You have not received EI, the Canada Recovery Sickness Benefit (CRSB) or the Canada Recovery Caregiving Benefit (CRCB).
  • During the two-week period being the periods in respect of what was being applied for, the applicant must have looked for work and not placed any undue restrictions on their ability to work.
  • Not having quit their job on or after September 27, 2020, or if they did, it must have been for a reasonable reason.
  • You must have returned to work when recalled, or not have declined a reasonable offer to work, during the two-week period or the four two-week periods immediately prior (back to September 27, 2020).
  • You filed a tax return for the 2019 or 2020 tax year (with certain limited exceptions).
  • If your annual net income exceeds $38,000, you will be required to repay a portion of the Canada Recovery Benefit at a rate of 50 cents for every $1 over the limit.

Do you know if the Canadian government is giving out any extra money in 2022?

The federal government announced some changes to the Employment Insurance (EI) program to supplement regular benefits under that program and introduced three new benefits to help people who are transitioning from CRB and other ending benefits.

The federal government realized that Canadians would still need support while they looked for work. The government attempted to transition people who had been receiving the Canada Recovery Benefit to a more flexible EI program for those who qualify, which will provide them with additional features.

The federal government also disclosed 3 new programs for Canadians who don’t qualify for EI. These are all taxable and will be run by the CRA.

All COVID-19 benefits are now finished. The new emergency programs were:

  1. Canada Worker Lockdown Benefit (CWLB). If you’re a Canadian and could not work because of a lockdown in designated regions, you could have applied for the CWLB starting December 30, 2021. The CWLB was only obtainable when a coronavirus lockdown was announced for your area. If you were eligible, you could have gotten a weekly income of $300 ($270 after tax was deducted at source) for each and every one-week period. The CWLB eligibility period ran from October 24, 2021, to May 7, 2022. The final day to submit the application was May 18, 2022.
  2. The CRCB was a program that gave workers a weekly income of $500 (taxable, tax deducted at source) for up to 42 weeks in respect of a situation where people couldn’t work for at least 50% of the week because they had to care for a child under 12 or a family member.The need for this benefit arose from the closure of schools, daycares, or care facilities due to COVID-19, or from the child or family member being sick and/or self-isolating or at high risk of serious health complications due to a health condition that made you more susceptible to a significant reaction to COVID-19. This benefit was paid in one-week periods and was available for the period from September 27, 2020, until May 7, 2022. The deadline to file CRCB applications was July 6, 2022.
  3. The Canada Recovery Sickness Benefit (CRSB). It was a government-funded program that supplied monetary support to workers who were not able to work at least fifty percent of the week due to being ill with the coronavirus, self-isolation, or underlying conditions that placed them in danger of contracting the virus. The benefit paid a maximum weekly income of $500 for a max of 6 weeks. The benefit was paid out in 1-week periods of weekly income and was available from September 27th, 2020 until May 7th, 2022. However, the ability to file for the benefit closed off on July 6th, 2022.canada recovery benefit act

The Canada Recovery Benefit is now closed and we have entered a new phase

Now that the Canada Recovery Benefit program is closed, we are entering a new phase. CRA is reviewing all benefit payments made by each individual and assessing those that CRA feels were not entitled to it, either because of error or outright fraudulent claims. They are demanding that such people provide proof of eligibility and if they can’t, they need to repay the money.

As mentioned before, to be eligible for the Canada Recovery Benefit, you must have had an income level through employment and/or self-employment income of at least $5,000 in either 2019 or 2020 or in the 12 months preceding a CRB application. The case from British Columbia showed what the right evidence is.

Other than confirming what evidence CRA can request, the case was not remarkable. The taxpayer did not help himself by refusing to give CRA additional information other than his T4 slips.

CRA stated that T4 slips are insufficient proof of income for Canada Recovery Benefit eligibility: The judge agreed with this assessment

You would think that if a taxpayer filed their 2019 and 2020 income tax returns showing all employment and self-employment income earned, that is good enough. Unfortunately, it is not. The Canadian income tax act is not the governing legislation; the Canada Recovery Benefits Act (S.C. 2020, c. 12, s. 2) (Act) is.

The legislation in question imposes a duty to disclose information. The extent of this duty is significant; the Act requires that applicants provide the Minister with any information that may be requested in relation to their application. The only arbiter of what is sufficient proof is CRA!

Proof of employment income includes verification through pay slips, employment verification letters, records of employment, bank statements with the employee’s name, address and payroll deposit, and other documentation.

Evidence of self-employment income includes invoices that include the date of service, client name, cost of service, and type of payment received.canada recovery benefit act

Will I have to repay the Canada Recovery Benefit?

I hope you found this Canada Recovery Benefit Brandon’s Blog informative. Is CRA taking collection action against you, including seizing bank accounts?

If you were in receipt of benefits under the Canada Recovery Benefit program and either did not meet the eligibility requirements or cannot prove that you did, then the short answer is YES. We are currently handling the insolvency filings of several individuals who were unable to prove their eligibility to the CRA’s satisfaction.

I know it’s not your fault. You were trying to make ends meet during this COVID-19 period, but you couldn’t do it all on your own. I get why you don’t have the money now.

If you’re an entrepreneur, it’s not uncommon to use unremitted employee source deductions and unremitted HST to finance Canadian businesses of corporate taxpayers during tough economic times. However, falling behind on your CRA payments can create large tax debt that can be difficult to recover from. Although unpaid income tax is not a Director’s liability, unremitted source deductions and GST/HST become a personal liability for tax of the Directors of the company. It is generally too late to protect yourself or try to restructure your financial affairs, once CRA is hounding you with the collection remedies available to them.

As people’s take-home pay fails to keep pace with inflation and mounting financial debt, many people are having a hard time keeping their heads above water. Are you now worried about just how you or your business are going to survive? Are your creditors taking collection efforts and you cannot afford to pay your or your company’s debts? Those concerns are obviously on your mind. Coming out of the pandemic, we are now worried about its economic effects of inflation and a potential recession.

The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.

It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now while explaining our recommendations.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you. Whatever process we recommend for you, we will do so in order to minimize any cons you may experience.

We understand that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your financial life, Starting Over, Starting Now.canada recovery benefit act

 

 

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CANADIAN INCOME TAX ACT S. 160: BAD MOVES LEAD TO HUGE TAX DEBT

canadian income tax act
canadian income tax act

Canadian Income Tax Act: Section 160 transfer of property

The Canadian Income Tax Act allows Canada Revenue Agency (CRA) to have a variety of methods for collecting debts from businesses. One option is to assess anyone who received money from the tax debtor business without proper consideration. This applies both if the business was a tax debtor when the money was paid out and if the business becomes a tax debtor after the payment is made.

Section 160 of the Canadian Income Tax Act is designed to let the CRA pursue people or companies who receive transfers of property when the person or company transferring the property owed, or could owe, amounts payable to the CRA and hasn’t paid them. The rule creates an income-tax debt for the person who got the transfer of property, without them having given adequate consideration for it.

For example, if an entrepreneur who is the major or sole shareholder of a company conducting business gave themselves a generous bonus in 2022, they may see that bonus clawed away by the CRA if the business is assessed as owing taxes for the 2022 taxation year or for a prior tax year. The potential tax liability could be sizable, so it’s important to be aware of this possibility.

This is what this Brandon’s Blog is about. We explain how section 160 of the Canadian Income Tax Act works and then describe a recent decision from the Federal Court in Murphy v. The King, 2022 TCC 111 (CanLII).

What’s section 160 of the income tax act?

The goal of the current legislation of Section 160 of the Canadian Income Tax Act is to stop taxpayers from avoiding paying taxes by transferring property to someone who is a non-arm’s length transferee. CRA is of the view that rather than transferring the asset, the taxpayer should sell the asset to pay off their income tax debt. A transfer deprives the CRA of the ability to collect taxes by seizing the asset.

Section 160 becomes effective when:

  • a person (or company) has transferred property, directly or indirectly, through a trust or any other means, to their spouse or common-law partner, or to a party they are not dealing with at arm’s length; and
  • the party making the transfer owes income tax or is assessed at a later date to owe income tax for the taxation year or prior to the transfer taking place.

Section 160 of the Canadian Income Tax Actis designed to cover a wide range of transactions involving a party related to the tax debtor. This includes many types of transactions, such as:

  • A direct transfer to a related party, such as an outright gift to a spouse or child, or a dividend from a corporation to a shareholder.
  • An indirect transfer of property to a related party may occur when the property is first transferred to an arm’s-length party and then the same property is transferred to a non-arm’s length party.
  • A transfer of property to a trust where the beneficiaries of the trust are non-arm’s length parties.
  • A transfer to a related party by any other means whatever, just in case the above wording missed a specific transfer.

    canadian income tax act
    canadian income tax act

What is the third-party tax liability under Section 160 for the transferee?

If section 160 of the Canadian Income Tax Act applies, both the person making the transfer and the person receiving the property become jointly and severally liable for the original tax debtor transferor’s income tax debt. So, the original tax debtor remains liable for the tax debt, but the recipient now becomes independently liable as well. The CRA can now go after both the original tax debtor and the recipient for the same income-tax debt. The claim by CRA against transferees are known as derivative assessments.

The recipient’s tax liability under section 160 cannot be greater than the fair market value of the transferred property. If any amount was paid or another consideration given in return for the property reduces the amount the recipient owes CRA on account of the original tax debtor transferor’s tax liability.

As stated in section 160 of the Canadian Income Tax Act, when the original taxpayer who transferred the property makes a payment to CRA, it will discharge the liability to the extent of the payment.

It also states that when the taxpayer who received the property makes a payment, their liability is reduced by that amount. This also lowers the amount the taxpayer owes. To get rid of the recipient’s liability completely, the taxpayer receiving the property needs to pay an amount that equals or is greater than the fair market value of the property they received.

Is it possible to dispute a Canadian Income Tax Act Section 160 CRA Assessment?

You could fight CRA’s notice of assessment and collection action first by filing a notice of objection. If that proves unsuccessful, you could take it to court, but you’re not likely to win. In the next section, I describe a recent Tax Court decision where the taxpayer fought it in court – and lost. The taxpayer then appealed the lower court decision and the appellate court refused to hear the appeal. So I’m a licensed insolvency trustee, not a tax accountant or tax legal professional, but here’s my understanding of section 160.

Section 160 of the Canadian Income Tax Act is pretty harsh. There’s no due-diligence defence, it applies even if the transfer wasn’t motivated by tax avoidance transactions, and it catches transferees who don’t even realize that they’re receiving property from a tax debtor with an outstanding tax debt.

Section 160 of the Canadian Income Tax Act doesn’t have a time limit or limitation period, so the CRA could come after you years after the supposed transfer. And even if the original tax debtor is later discharged from bankruptcy and doesn’t owe the tax debt anymore, the person who got the property would still be on the hook.

As an aside, I wonder if the transferee could get out of their liability if the taxpayer fully completed a successful proposal – like a consumer proposal or Division I. But this is just a thought, not related to this Brandon’s Blog post.

Further, the unpaid tax debt liability under section 160 can be passed on – just like the common cold or COVID! After being assessed for a tax obligation under s.160, you can spread out the suffering if you then transfer property to yet one more taxpayers who are non-arm’s length persons to you. The CRA may come after you for the tax bill, and now someone else!

The only defences I am aware of available to the transferee against this are to prove that:

  • the transferor didn’t owe anything to CRA at the time of transfer;
  • that the recipient gave fair market value for the property in return; or
  • the property’s fair market value is zero (this will presumably be impossible because if it was really worthless, the transfer was unnecessary).

    canadian income tax act
    canadian income tax act

Murphy v. The King, 2022: The court upheld the third-party income tax liability under section 160 of the Canadian Income Tax Act

This case is all about an appeal to the Federal Court of Appeal of a 2018 decision of the lower court, upholding the notice of assessment issued by the Minister of National Revenue (the “Minister”) dated June 7, 2017, pursuant to section 160 of the Canadian Income Tax Act in respect of dividends paid by 591985 British Columbia Ltd. (the “Corporation”), in December 2015 to Mr. Murphy, the Appellant. Coincidentally, Mr. Murphy is a licensed insolvency trustee.

At that time, the Appellant was the only director and the controlling shareholder of the Corporation. The Corporation had a tax liability which, on June 7, 2017, was $109,460.96. This amount represented the total federal and provincial taxes owing, plus penalties and interest.

The question that needed to be answered is whether the Appellant is jointly and severally liable for the $109,460.96 the Corporation owes under section 160 of the Canadian Income Tax Act.

Although the lower court went through a purposive analysis and is detailed, the lower court’s decision was ultimately based on one key issue. This issue is important not only for cases involving the transfer of property or for taxpayers experiencing financial difficulty and having an unpaid tax debt, but also for all entrepreneurs.

It’s not uncommon for entrepreneurs to bonus themselves through dividends instead of salaries. In this case, Mr. Murphy argued that the fair market value of the services he provided to the Corporation was equal to or greater than the amount transferred. He argued that, since he gave market value consideration for the property in question, he should not have any liability under subsection 160(3) of the Canadian Income Tax Act.

The Tax Court and the Federal Court of Appeal was not buying this argument. The Judge referred to the fact that Canadian courts follow a Supreme Court of Canada decision in support of the fact that market value consideration has nothing to do with it when considering this liability provision in the context of the transferred property being dividends.

The Supreme Court of Canada’s decision held that a dividend is related to shareholding and not to any other consideration the shareholder might have provided. The fact that the Appellant declared the dividends on his personal income tax return and paid taxes on them does not impact the fact that dividends are not paying for services. Therefore, the lower court decision finding joint liability was upheld.

This is an important point for all entrepreneurs, whether facing a liability assessment under section 160 or not. Dividends are related to shareholding and not to any other consideration the shareholder might have provided, according to the Supreme Court of Canada’s decision. This means that shareholders are only entitled to the dividend if they continue to hold their shares. If they sell their shares, they are not entitled to the dividend.

Perhaps if Mr. Murphy had received a salary from the Corporation in return for the services provided, then all he would have to prove is that the services provided had a value equal to or greater than the underlying tax debt of the Corporation. Perhaps the lower court or the Federal Court of Appeal would have ruled differently. But that is not what he did, so, no sense speculating further on such legal questions.

The Canadian Income Tax Act and your income-tax debt to CRA

I hope you found this Canadian Income Tax Act Brandon’s Blog informative. Is CRA taking collection action against your or your company, including seizing bank accounts?

If you’re an entrepreneur, it’s not uncommon to use unremitted employee source deductions and unremitted HST to finance the businesses of corporate taxpayers during tough economic times. However, falling behind on your CRA payments can create large tax debt that can be difficult to recover from. Although unpaid income tax is not a Director’s liability, unremitted source deductions and GST/HST become a personal liability for tax of the Directors of the company. It is generally too late to protect yourself or try to restructure your financial affairs, once CRA is hounding you with the collection remedies available to them.

As people’s take-home pay fails to keep pace with inflation and mounting financial debt, many people are having a hard time keeping their heads above water. This is also a crucial concern dealing with entrepreneurs and their businesses, as profits, as well as cash flow, are challenged and perhaps even evaporating. In these troubled economic times, it is necessary to be knowledgeable about these concerns as well as take action to shield yourself and your company.

Are you now worried about just how you or your business are going to survive? Are your creditors taking collection efforts and you cannot afford to pay your or your company’s debts? Those concerns are obviously on your mind. Coming out of the pandemic, we are now worried about its economic effects of inflation and a potential recession.

The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.

It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now while explaining our recommendations.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you. Whatever process we recommend for you, we will do so in order to minimize any cons you may experience.

We understand that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your financial life, Starting Over, Starting Now.

canadian income tax act
canadian income tax act
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Brandon Blog Post

PROS AND CONS OF BANKRUPTCIES CANADA: A HEALTHY FRESH START OR THE LAST RESORT?

pros and cons of bankruptcies canada
pros and cons of bankruptcies canada

Evaluating the pros and cons of bankruptcies Canada: Introduction

When you are in debt, it can feel like you are stuck in quicksand – the more you struggle, the deeper you sink. If you are considering bankruptcy, you are not alone. According to the Office of the Superintendent of Bankruptcy (OSB), almost 100,000 Canadians filed either a consumer proposal or for bankruptcy in 2021. The numbers for 2022 are rising above the 2021 level.

Before you make a decision, it is crucial to weigh the pros and cons of filing for bankruptcy in Canada. On the positive side, bankruptcy can give you a fresh start. It can discharge your debts and give you a chance to rebuild your finances. On the negative side, bankruptcy can damage your credit score more than one of the bankruptcy alternatives.

If you are struggling with debt, there are other options to consider before bankruptcy. You may be able to negotiate with your creditors and set up a payment plan. You can also improve your financial situation by cutting expenses and increasing your income. If you decide that you do need an insolvency process, a consumer proposal or a Division I Proposal may be better for you.

In this Brandon’s Blog post, I wish to aid you in gaining a better understanding of the pros and cons of bankruptcies Canada. Then you can make a much more educated choice about your financial debt issues.

What are the pros and cons of bankruptcies Canada?

When it comes to making the decision to file for bankruptcy, it is important to understand all of the implications that this will have on your life. In Canada, bankruptcy is a legal process that allows individuals to discharge all of their debts if they are unable to repay them. This process is overseen by the OSB, and there are certain requirements that must be met in order to be eligible for bankruptcy.

While bankruptcy can provide relief from debt, it is not without its drawbacks. Once you have been declared bankrupt, your credit rating will be significantly damaged, which can make it difficult to obtain new lines of credit in the future. Additionally, your assets may be seized in order to repay your creditors.

Before making the decision to file for bankruptcy, it is important to weigh the pros and cons carefully. Speak with a financial professional to get advice that is specific to your situation. Now for a more detailed discussion on the pros and cons of bankruptcies Canada.

pros and cons of bankruptcies canada
pros and cons of bankruptcies canada

The pros of bankruptcies Canada

A fresh start

If you’re sick of being in debt, bankruptcy might be a good option for you. It can be a fresh start, and it’ll get creditors off your back. You can move on with your life without all that stress.

Rebuild your credit

As stated above, bankruptcy will cause some damage to your credit. However, it can stop the continuous damage you may be facing now. You can begin rebuilding your credit rating, rather than having to face extra charges from missed payments as well as receiving those pesky telephone calls from bill collectors.

Get rid of most if not all of your debts

In most cases, all of your obligations will be cleared by your bankruptcy discharge. Normally cleared debts are your unsecured debts like credit card debt, lines of credit, personal loans, payday loans, and income tax debts. A bankruptcy filing will let you not worry about a ton of bills but will force you to focus on balancing your budget.

There are some obligations that bankruptcy cannot clear, like child or spousal support payments, or payments for fines or penalties awarded by a court. You can get your student loans discharged too as long as you’ve been out of school for 7 years or even more.

Stop debt collectors cold

Creditors and their debt collectors making their collection calls can be pretty aggressive when they’re trying to get paid. Bill collectors demand and try to scare you as to what will happen if you do not pay up. Answering your phone or checking your VM becomes terrifying. You might also have a ton of mail from them stacking up in your mailbox, inbox, and so on.

If you’re losing the battle of staying up to date with your bill payments, personal bankruptcy might be a good option for you. Declaring bankruptcy stops all collection efforts, including calls as well as letters from your creditors. This is called the “automatic stay of proceedings”. When you’ve filed an assignment in bankruptcy, the automatic stay goes on and offers you some breathing space.

Get rid of any wage garnishment

If you file for bankruptcy, you don’t need to worry about wage garnishment or legal action anymore. The stay of proceedings also prevents any further attempts at collection, including wage garnishment. Creditors and collectors also won’t be able to take you to court.

Bankruptcy is not forever

So, if you’re thinking about filing for the bankruptcy process, know that it usually takes about nine months to go through the process for a first-time bankrupt who does not have any surplus income payments to make to your Trustee. And, if the Licensed Insolvency Trustee handling your case finds that you have surplus income, you won’t be able to get a discharge for 21 months.

If this is your second bankruptcy, it will take longer. If you don’t have surplus income payments to make, it will take 24 months. If you do need to make surplus income payments, it will take 36 months.

These are the pros when considering the pros and cons of bankruptcies Canada. Now for the cons!

pros and cons of bankruptcies canada
pros and cons of bankruptcies canada

The cons of bankruptcy

There are many cons of filing bankruptcy, including:

Your credit rating

If you file for bankruptcy, it’ll rank you as an R9 on your credit report, which is pretty bad news for your credit score. The damages to your credit rating will not last forever. Your very first personal bankruptcy will be noted on your credit record for 6 years after the day of your bankruptcy discharge. A second bankruptcy will certainly harm your credit score for a lot longer.

At the outset of your bankruptcy journey, you cannot see the light at the end of the tunnel. At least you now have a roadmap to restoring your credit and have a date when your credit will be cleared of any damage. You can start to rebuild your credit even before you are discharged from bankruptcy.

Your assets may be liquidated

This doesn’t mean that you’ll lose everything. Your personal belongings – like clothes, household items, work tools, and even a car under a certain value – usually can’t be taken away from you in bankruptcy. This means that the proceeds from the sale of your other non-exempt assets will be used to repay your creditors.

RRSP contributions in the past 12 months are not exempt

Your retirement savings are protected, but any contributions you made in the past 12 months to your RRSP are not exempt.

Surplus income and the cost of bankruptcy

If you’re making more money than the surplus income threshold, you’ll also have to make surplus income payments to your Licensed Insolvency Trustee. If you don’t have any assets and don’t have to pay the surplus income requirement, you or a relative will have to pay your Trustee’s fee.

Complete financial disclosure

You will need to make full financial disclosure to your Trustee. Your Licensed Insolvency Trustee will use that information to help you complete a Statement of Affairs. This disclosure details your financial position and will even potentially highlight certain financial transactions. Essentially your Trustee and the court will know everything about your finances and your creditors will get a peek too.

When you’re going through bankruptcy, you’ll need to hand over your tax docs and pay stubs to show how much you’re earning. This is how the Trustee decides if you’ve gone over the surplus income threshold.

A lasting record

Once you file for bankruptcy, the paperwork will become part of the public record in Canada. To start your bankruptcy, your Licensed Insolvency Trustee files your bankruptcy documents with the OSB. It then becomes part of the public record.

Most people who file for bankruptcy will only have their Trustee, the OSB, the court, their creditors and the two Canadian credit bureaus know about it.

pros and cons of bankruptcies canada
pros and cons of bankruptcies canada

Bankruptcy alternatives from pros and cons of bankruptcies Canada

Now that you understand the pros and cons of Canadian bankruptcies, you must just consider this option as a last choice. If you can solve your financial problems without experiencing the unfavourable elements of personal bankruptcy, that is the most effective way to go.

During your initial no-cost consultation, the Licensed Insolvency Trustee will help you should explore all the bankruptcy alternatives. I have written before in more detail about each of the bankruptcy alternatives listed below. I have included a link to each of those more detailed blogs. The main alternatives to bankruptcy are:

Debt consolidation

If you’re aiming to leave financial debt behind, debt consolidation could be a good alternative for you. By rolling all your financial obligations into one financing with a lower rate of interest, you will save money from the lower rate of interest on the new consolidation loan and leave your debt behind much faster.

Just make sure that you understand the current interest rates you are being charged, the total of your monthly payments that you currently may or may not be able to afford, the interest rate being offered to you on a debt consolidation loan, what your new monthly payment will be and make sure that you have a realistic budget of your monthly income and monthly expenses that shows that you can afford the new payments on a monthly basis.

Credit counselling

Credit counselling is a process whereby a person in debt meets with a credit counsellor to discuss their options for dealing with their debt. The credit counsellor will assess the person’s financial situation and provide advice on how to best deal with the debt. This may include negotiating with creditors to reduce interest rates or monthly payments and setting up a debt management plan.

As I have written many times before, you should only go to a community-based non-profit credit counselling agency that does not charge any fees. If the credit counsellor you choose wants to charge you fees, get out of there. It is not the best choice for you.

Debt settlement

Debt settlement is a process in which you can negotiate with your creditors to pay less than the full amount you owe. This can be a good option if you are not able to pay your debts in full and you are willing to negotiate with your creditors.

Debt settlement works well if you only have 1 or a few creditors. If you have many creditors, debt settlement is much more difficult in making sure that everyone remains on board with the negotiated settlement and that you will have enough money to pay the lower settled amounts you promised.

Many times with a multitude of creditors, either a consumer proposal or a Division I Proposal is the most effective way to bind everyone in a debt settlement process.

Like in credit counselling, I urge you to stay away from debt settlement companies that charge fees. What they do is charge you unnecessary fees, try to sell you products you don’t need and then when they cannot sell you any more products and their debt settlement techniques do not work, they then walk you to their favourite Licensed Insolvency Trustee for an insolvency process, which might just be a bankruptcy.

I would rather see you use your accountant or lawyer if you do not feel comfortable negotiating yourself. Those professionals will have your best interests at heart in return for their fee. They also won’t try to sell you more products.

Consumer proposals

When it comes to debt of $250,000 or less (other than for secured debts registered against your home), there are a number of options available to help you get back on track. One option is a consumer proposal.

A consumer proposal is a formal debt relief and debt-settlement option available in Canada. It is a legally binding agreement between you and your creditors. Under a consumer proposal, you agree to repay a portion of your debts, and your creditors agree to forgive the rest.

A consumer proposal can be an attractive option for many reasons. First, it can help you get out of debt without having to declare bankruptcy. Second, it can help you keep your assets, such as your home or car. Third, it can give you a fresh start by wiping away most, if not all, of your unsecured debts.

If you’re considering a consumer proposal, it is necessary to obtain assistance from a qualified expert. A Licensed Insolvency Trustee, who is also a consumer proposal administrator in Canada, can walk you through the process and answer your questions. This will allow you to see if it’s the right choice for you.

Division I Proposal

If you owe more than $250,000, a Division I Proposal is a great option to settle your debts. It’s not as streamlined as a consumer proposal, but it’s still a great way to get out of debt.

Other than these technical differences, it has the same aim as a consumer proposal: to provide a debt settlement option that will bind all unsecured creditors and get the person back onto their feet free of the stress and burden of their unmanageable debts.

Either a consumer proposal or a Division I Proposal are excellent debt relief options approved by the Canadian government. One of the other benefits of either of these two debt settlement options is that the person will also receive two mandatory financial counselling sessions. Getting this education will help put the person on the right track for the rest of their life.

Understanding the advantages of bankruptcy and also the disadvantages of bankruptcy for companies

When a company faces overwhelming debt, bankruptcy may seem like the only way out. However, there is only one advantage and one disadvantage to bankruptcy for a company.

One advantage of this situation is that the Trustee may be able to sell the assets to a purchaser who will then be able to use those assets to continue the former business of the company in a profitable way. This could potentially save some jobs, at least for the key employees of the old business.

The one disadvantage is that unlike a person, when a company goes bankrupt, the corporate legal entity is now dead.

Before the Directors of a company decide to bankrupt the company, they should determine if certain divisions or parts of the business can be saved and operate profitably if the unprofitable part(s) could be eliminated. If so, a financial restructuring can be done to turn this unprofitable company into a viable and profitable one and save some jobs in the process.

pros and cons of bankruptcies canada
pros and cons of bankruptcies canada

Pros and cons of bankruptcies Canada: Summary

I hope you enjoyed this Brandon’s Blog on the pros and cons of bankruptcies Canada.

People are falling behind with stagnant wages or tiny wage increases while there is runaway inflation and they are falling deeper and deeper into debt. Revenue and cash flow shortages are critical issues facing entrepreneurs and their companies and businesses. Are you now worried about just how you or your business are going to survive? Those concerns are obviously on your mind. Coming out of the pandemic, we are now worried about its economic effects of inflation and a potential recession.

The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.

It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now, while explaining the pros and cons of bankruptcies Canada or any other of our recommendations.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you. There are many pros and cons of bankruptcies Canada. Whatever process we recommend for you will, we will do so in order to minimize any cons you may experience.

We understand that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your financial life, Starting Over, Starting Now.

 

 

pros and cons of bankruptcies canada
pros and cons of bankruptcies Canada pros and cons of bankruptcies canada
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CCAA PROTECTION FAQ: 10 EASY THINGS YOU MUST KNOW TO BE FINANCIAL RESTRUCTURING SAVVY

ccaa protection

What is CCAA protection?

The Companies’ Creditors Arrangement Act (CCAA) allows insolvent companies owing creditors $5 million or more to seek CCAA protection. This can help them restructure their business and settle their debts over time. The CCAA gives such companies the ability to restructure their business affairs and financial obligations. In Canada, the CCAA operates under the authority of the federal government and is administered by the courts of each province.

If a debtor company owes less than $5 million, it can restructure under Part III Division I of the Bankruptcy and Insolvency Act (Canada). This federal insolvency statute has streamlined procedures for handling insolvency restructuring cases. There’s no prohibition against using this statute if the company owes $5 million or more. Those larger companies just have a choice as to which statute to restructure under. This kind of restructuring is done in order to avoid liquidation through the filing of an Assignment in Bankruptcy. By successfully restructuring, the company can avoid job losses, claims by employees and the other negative effects of bankruptcy.

In this Brandon’s Blog post, I’ll be discussing CCAA protection for companies needing to go through a financial restructuring by making the Initial Application to the court. I’ll also be talking about a recent court decision that will be of interest to companies needing to restructure when their bank is demanding that all loans be repaid and they are trying to enforce their security.

Is CCAA protection the same thing as chapter 11?

Bankruptcy protection is a term closely associated with a US company filing under Chapter 11 of the US Bankruptcy Code. In Canada, it most likely means that the Canadian company has applied to a Canadian court to make its application for CCAA protection under the CCAA.ccaa protection

What is CCAA protection in Canada and “The Stay”?

Creditor protection under the CCAA is a process that provides companies with some relief from their creditors. This process can help them to reorganize their affairs and continue operations.

CCAA protection can provide some much-needed breathing room for companies that are struggling to stay afloat. It can give them time to restructure their affairs and come up with a plan to repay their creditors. A debtor company files its application for creditor protection in order to obtain an Initial Stay from the court. This will allow the company to begin restructuring its financial affairs.

While the CCAA protection order is in place, creditors are not allowed to take any action to recover money owed to them. They can’t try to seize the company’s property or petition the court for its bankruptcy, without the prior approval of the court. This is called the CCAA protection “stay of proceedings”.

A CCAA Canada filing is typically made when a business is insolvent and seeking to restructure its debts. The goal of the business in CCAA protection is to reach a satisfactory agreement with its creditors, which can include both secured and unsecured creditors. I will talk more about the support of secured creditors when I discuss the court case below.

Comeback hearing: Can CCAA Canada protection be extended?

Yes. Initial Order applications are often submitted on an urgent basis with prior notice only to key stakeholders such as senior lenders. Initial orders usually contain a “comeback” clause allowing stakeholders who did not receive initial notice an opportunity to attempt to change the terms of the CCAA protection order. Under the CCAA, Section 11.02(1) states that the Initial Order cannot be effective for more than 10 days.

The Canadian court system requires that there must be a “comeback hearing,” where interested parties can challenge aspects of the initial order, or even request additional relief before the order is extended. This means that the comeback hearing must be scheduled for within those 10 days. This ensures that the process moves forward promptly while protecting the interests of those involved. At the comeback hearing, the court will then assess the evidence before making a decision on whether or not to extend CCAA protection. If the court decides to extend protection, it will only do so for a limited amount of time.

The amount of time given will be at the discretion of the court and is definitely not open-ended. The company and its Monitor will be required to provide regular reports to the court detailing this progress.

The court will determine the next reporting period based on the information provided, which will allow the debtor company to continue its restructuring. The court may also be asked to make other orders, such as borrowing authority for financing the debtor company’s operations.ccaa protection

CCAA protection: What is the role of the Monitor?

The Monitor is the Licensed Insolvency Trustee (LIT) appointed by the court to monitor the business and financial affairs of the debtor company in a CCAA proceeding. The LIT’s role is to ensure compliance with the law, court order(s), and terms of the debtor company restructuring plan.

The Court-appointed Monitor is responsible for assisting with the preparation of the restructuring plan, formally known as the Plan of Arrangement and sometimes referred to as a Plan of Compromise. Monitors act as financial advisors to the insolvent company and they also advise creditors on the claims process and oversee voting at each meeting of creditors.

A Monitor must submit regular reports to the court summarizing the debtor company’s activities and the progress of the case. This includes the claims process when they get to that point in the administration.

These reports are published online and are accessible to creditors and interested parties. One of the ongoing responsibilities of the Monitor in its reporting is to advise if, in the Monitor’s opinion, the debtor company under CCAA protection is continuing to act in good faith and carrying out its restructuring on a timely basis.

CCAA protection: The Plan of Arrangement or Compromise

The company usually begins talking with its creditors and investors right away after the initial order is made. To do this, it may end or give away unwanted and especially unprofitable contracts, fire employees, sell property, negotiate new credit terms, change its corporate structure, and take other restructuring steps to ensure the viability and profitability of the company.

The court will ultimately be asked to approve all major actions in order to allow the company to move towards a viable Plan of Arrangement it believes will garner the support of the necessary majority of creditors.

The Plan of Arrangement or Compromise is the proposal presented by a company to its creditors detailing how it intends to resolve the issues it is facing and how the amounts owed to creditors will be compromised, An arrangement is a broader term that encompasses any plan for reorganizing. The distinction between “compromise” and “arrangement” is in practice, immaterial.

Different creditors are often treated differently based on terms of priority. This affects the order and amount they will be paid under the restructuring plan.

The first step in a CCAA restructuring will be to prioritize any government claims that are considered trust claims. Next will be any new charges ordered by the court as part of the restructuring. Examples of such court-ordered charges are amounts owing under a Key Employee Retention Plan and the lender financing the company during the restructuring phase.

The pre-filing secured creditors are typically at the forefront next when it comes to recovering their funds. They may have security in the form of a general security agreement or mortgage.

Unsecured creditors are next in line for payment. These creditors have provided goods or services to the company on credit, without receiving any security in return. In retail insolvencies, the company under creditor protection has to decide as part of its business plan if it is going to treat customers who have paid deposits for items they have not yet picked up as unsecured creditors or if they will complete the sale providing value for the prior deposits.

Such differing priorities will influence how the Plan of Arrangement or Compromise is constructed.ccaa protection

CCAA protection and the financial statements of the debtor

When a company seeks CCAA protection from the court, they are required to submit a projected cash flow statement. This document projects the company’s expected revenue and expenses from ongoing business operations and any required financing over the next 12 months and is used to assess whether or not it can fund day-to-day operations and survive during the CCAA protection proceedings.

Furthermore, the company must provide copies of all financial statements issued during the one-year period prior to the date of the Initial Application. If none were issued during this time period, it should provide a copy of the most recent financial statement.

CCAA protection: Creditor approval of the Plan of Arrangement or Compromise

A company can establish separate classes of creditors to increase the chances of a favourable vote for the Plan of Compromise or Plan of Arrangement. There must be some form of shared characteristic or similarity amongst the creditors in each class in order to qualify for each such classification.

In addition to the simple majority test, the creditors in each class who are voting must vote in favour of it by at least 2/3 of the total value of the creditors voting in each class.ccaa protection

CCAA protection and court approval of the Plan of Arrangement or Compromise

The court may approve the Plan once they have been approved by each participating class of creditors. The Plan will include all negotiated compromises and arrangements that deal with any matter, including claims against directors and amendments to the articles of incorporation or letters patent incorporating the company,

A Plan cannot be approved by the court if a provision is not made for settling “super-priority” claims relating to:

  • compensation and reimbursement claims by employees other than officers and directors;
  • pension plan contributions (except where an agreement has been reached with the relevant pension regulator); and
  • unremitted employee source deductions from employee paycheques for taxes and other deductions.

Additionally, any equity claims cannot be authorized by the court through a compromise or arrangement until all other claims have been paid in full.

CCAA protection: You can access CCAA filing records and court documents through 2 sources

There are two ways to find CCAA filing records and court documents. The easiest way is to go to the Monitor’s website specifically set up for the CCAA case. All documents filed by the Monitor in court and all court orders will be there. The second source is the court file itself.

This leads us to the actual court case I mentioned at the very beginning of this CCAA protection blog post. It is a decision dated October 14, 2022, by the Honourable Justice MacDonald of the Supreme Court of Newfoundland and Labrador in Bankruptcy and Insolvency. The case is Edward Collins Contracting Limited (Re), 2022 NLSC 149.

It is an application by a group of companies in the construction industry seeking an Initial CCAA protection Order for the debtor company. The case is notable for one factor: the companies’ main secured creditor, the Royal Bank of Canada, is opposing the application.

The companies were operating under a forbearance agreement. However, Royal Bank claims that they were in breach of their forbearance agreement and that the Bank should be allowed to have a Court-appointed Receiver. Although they did not provide any evidence in their material, in argument, the Bank claimed the companies were not acting in good faith.

The court ruled that if the companies’ application for CCAA protection is approved, then the Royal Bank of Canada’s application for a Court-appointed receiver is moot.

The court’s entire decision and His Honour’s thought process in considering all issues can be located online. Of specific relevance to me is His Honour’s thought process and careful consideration of all the points he must consider in deciding whether or not to grant the requested relief of CCAA protection.

The court considered the following:

  • Do the companies have proper standing under the CCAA?
  • Have the companies satisfied the test to allow the granting of grant an Initial Order?
  • If so, should the company’s conduct during the prior Consent Stay period cause it to refuse the Initial Order?

The court found that the CCAA applies to the debtor company and the affiliated debtor companies as they are all insolvent corporations or have committed an act of bankruptcy and owed their creditors in excess of $5 million. The court also found that the companies were entitled to CCAA protection from creditors and even the Royal Bank of Canada notwithstanding its opposition to the Initial Application and the granting of the Initial Order. The Initial Order was made.

You can read His Honour’s lengthy analysis if you wish, as it is very detailed and provides a great deal of insight.

You Owe Money—The CCAA protection

I hope you enjoyed this Brandon’s Blog on CCAA protection.

Revenue and cash flow shortages are critical issues facing entrepreneurs and their companies and businesses. Are you now worried about just how you or your business are going to survive? Those concerns are obviously on your mind. Coming out of the pandemic, we are now worried about its economic effects of inflation and a potential recession.

The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.

It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you.

We understand that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your life, Starting Over, Starting Now.ccaa protection

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CONSOLIDATION LOANS IN CANADA: IS IT POSSIBLE TO CONSOLIDATE DEBT BY USING THIS 1 SIMPLE GOING POSTAL HACK?

debt consolidation loans in canada

Debt consolidation loans in Canada

Debt consolidation loans in Canada can be an excellent means to conserve money and get your funds in order. By combining several financial obligations into an affordable single loan, you can frequently get a lower rate of interest and also reduced month-to-month payments. This can assist you to get out of debt quicker as well as save cash over time.

Prior to getting debt consolidation loans in Canada, it is very important to understand the terms of the financing and also to make sure you can afford the monthly payments. It’s also a good idea to look around and compare rates of interest and also loan terms from various financial institutions.

In this Brandon’s Blog, I discuss the concept of debt consolidation loans in Canada and a sort of new potential lender offering personal loans in Canada. I will also share another debt settlement and debt consolidation option that may be beneficial for people and companies who want to repair their financial situation.

Advantages as well as downsides of consolidation loans in Canada

Upsides

Debt consolidation loans in Canada can offer many benefits over making regular monthly payments on many different loans and debts with different interest rates. Interest rates on some debts, like credit card debt, can be categorized as high-interest debts, making it difficult to make a dent in the balance owing. if all you ever do is make the monthly minimum payment.

Consolidation loans supply a number of advantages, such as:

Reduced interest rates – Lenders normally give consumers reduced rates of interest on individual personal loans allowing them to repay their high-interest-rate credit card debt. Consolidation loans in Canada can be an excellent method to obtain a lower rate of interest and come to be debt-free quicker.

Reduce your monthly payments – Banks and credit unions usually offer debt consolidation loans in Canada with terms of up to 5 years. This, along with the lower interest rate, can help you save a lot of money in the long run and give you a lower monthly payment than the sum of the monthly payments required under your many debts.

A single payment instead of multiple payments – One of the best things about debt consolidation loans in Canada is that you only have to make one monthly payment. This makes it much easier to budget and stick to your plan. Instead of having to remember to pay six different bills each month, you only have to worry about one.

Potentially improved credit scores – Your credit report is a number that banks make use of to determine your creditworthiness. A high credit rating suggests you are a low-risk borrower, which is excellent. A bad credit rating indicates you are high-risk, which is bad.

By obtaining a debt consolidation loan, making on-time payments and paying it off on time without a payment schedule default or late payments, you are restoring your bad credit score in 2 ways. First, you have revealed that you had the ability to fully settle all of your other financial debts. Second, you are repairing your credit score by making the consolidation loan payments on time. It is not instant, yet in time, paying off debt consolidation loans in Canada will certainly improve your credit rating. Over time, you will see your credit score and credit report improve.

Downsides

There are a few downsides to debt consolidation loans in Canada, including:

Debt consolidation loans in Canada are often referred to as “easy money.” But they aren’t always easy. Even though many consumers think they qualify for a loan based solely on their disposable income, there are certain circumstances where Canadian banks will not see your monthly income in as good a light as you do. You will need collateral such as real estate, cars, boats, etc.

If you do not have these things, you may be at a disadvantage. Most banks will not lend money to someone with a low credit score unless they have some form of security, such as a car or house with enough equity. This makes sense because the lender knows that it is a debt consolidation loan you are applying for and by definition, you cannot pay off your credit card balances without their loan. They will want to protect themselves against the chance you may default on the loan.

When choosing a bank, you’ll want to compare fees, interest rates and prepayment penalties to ensure you’re getting the best deal. Keep in mind that the lowest fees don’t always mean the best overall value, so be sure to compare all aspects of the loan before making a decision. You might even consider getting one of the types of secured loans by raising money against your home through a home equity line of credit or a second mortgage. So compare your offers of secured loans and unsecured debt consolidation loans in Canada very carefully to consider all factors in deciding which is best for you.

WARNING: Stay away from private lenders, payday lenders and most alternative lenders who may provide loans just as expensive as payday loans. Their fees and high-interest loans will never be in your favour.debt consolidation loans in canada

Consolidation loans in Canada: Can you consolidate student loan debt?

Students and recent graduates who find themselves buried under student loan debt often look for help. They want to consolidate their debts into one manageable monthly payment, but this can be difficult to obtain because there are few debt consolidation loans specifically designed for them.

Many recent graduates lack the credit history or income to qualify for a consolidation loan. They also generally do not have any free assets to qualify for a single secured debt consolidation loan to pay out over a longer period of time at a lower interest rate.

Unsecured loans to young people with a little credit history will be more expensive than one to an individual with a long-established credit history. That assumes that they can even qualify for this type of loan.

For these reasons, other than perhaps for a recent graduate from either medicine or dentistry who perhaps can roll their student debt into a professional loan, it will be very difficult to get consolidation loans in Canada to consolidate student debt.

Consolidation loans in Canada: Can going postal help you reach your financial goals?

Here is a potential new source for debt consolidation loans in Canada. Although it was not set up specifically for consolidation loans, there is no reason why you cannot use the money for that purpose if you are approved.

There is a new loan program offered by Canada Post which is designed to help people who are struggling financially, especially in rural areas where access to banking institutions is limited. It is called the Canada Post MyMoney™ Loan product. The idea is that you get a loan that’s based on how much you can afford to pay back, what you need the money for, and how likely you are to repay it.

The initiative is part of Canada Post’s commitment to helping Canadians manage their finances better. Their goal is to provide easy access to financial services and products that can help people save time and money.

To have your loan application considered, you have to be either a Canadian citizen or a Permanent Resident. You must be no younger than 18 years of age and you need to have annual earnings of a minimum of $1,000. Additionally, you need to not have been bankrupt within the 2 years before applying for the loan or had any of your financial debts handed off to a collection agency within the year before applying. They will of course also do a credit check on you.

debt consolidation loans in canada

In order to receive your loan proceeds, you must have a chequing or interest-bearing account with a Canadian financial institution in your own name. Borrowers of MyMoney™ loans are not required to offer any security against assets, in contrast to secured loans from banks and credit unions. Instead, applicants need only provide proof of identity, employment history and income. Both variable and fixed-rate installment loans are offered. The actual lender is TD Bank.

Consolidation loans in Canada: Other financial debt loan consolidation choices

You may not want to take on more debt to pay off your current debt. I don’t blame you and I get it. Or you may have been denied a debt consolidation loan. Here are some other options for consolidating your debt:

Balance Transfer Credit Cards

A balance transfer is simply when you move the balance of one credit card over to another credit card. For example, if you have a balance of $5,000 on your Mastercard, you can transfer that balance to a new Visa account that offers you 0% interest for 1 year on all balance transfers.

When you switch, you won’t have to pay interest charges for 12 months. After that, you’ll need to pay off the balance in full or start making payments on the balance transferred. Of course, you’ll still accrue interest after the interest-free period on the remaining balance.

Consolidation loans in Canada: Credit counselling

Credit counselling is a service that helps individuals to manage their finances and improve their financial situation. It can be done with a range of techniques, including budgeting, negotiating with creditors, setting up a plan to repay debt and monitoring actual behaviour vs. the plan.

Credit counselling can be an excellent way for individuals to take control of their financial obligations. It can help them create a plan to settle their debt, and provide them with the tools and knowledge they need to maintain financial literacy in the future.

There are many different credit counselling services available to choose from. You should select a community-based service to avoid being charged any fees. Be sure to stay away from any counselling service that charges fees, as this will only add to your expenses when trying to reduce debt.

Consolidation loans in Canada: Debt help is available with a financial restructuring program

Financial restructuring is a complicated and difficult procedure, however, it likewise provides individuals as well as businesses with a new beginning and a brand-new lease on life. Selecting to reorganize your finances with the help of a licensed insolvency trustee will certainly have temporary challenges, but can ultimately provide you with financial relief and a fresh start.

If you are considering financial restructuring, we urge you to consult with a licensed insolvency trustee to discuss your options. We can help you understand all of your options and work with you to develop a plan that is in your best interests.

Trustees are experienced in all aspects of financial restructuring and can supply you with the information and assistance you require to make the very best decision for your situation.

The most well-known financial restructuring tool for individuals is the consumer proposal. For mid-size companies and individuals with larger debt, it is a Division I proposal. For companies with debts greater than $5 million, restructuring is accomplished through the use of the Companies’ Creditors Arrangement Act.

Here is the best part. You should consider financial restructuring as getting an interest-free loan to pay off all your debts for a fraction of what you owe. I am qualified and experienced in all forms of financial restructuring, can explain this concept to you and am always available to answer any of your questions.

Consolidation loans in Canada: Before making a decision on your financial life needs – Call me

I hope that you found this consolidation loans in Canada Brandon’s Blog informative. If you’re sick and tired of carrying the burden of debt and ready to live a much better life, we can assist. We know exactly how it really feels to be in debt as well as feel like you’re never going to get ahead. We have actually helped lots of people and businesses that were in your position reach financial stability, so we understand it’s feasible for you to prosper in your objective of ending up being debt-free. Nevertheless, it will certainly require some work on your part. We’ll be right here to assist you with every action necessary.

The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too many personal unsecured debts, Credit card debt, income tax debt liability, unsecured loans or personal obligations from the running of your company or from being a business owner. These are all types of debt we can help you eliminate. We are aware of your financial difficulties and understand your concerns. Filing bankruptcy is the last option we explore only after we have exhausted all other options to avoid bankruptcy, such as financial restructuring through a debt repayment plan.

It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to give you the best management advice to get you out of your outstanding debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We are sympathetic to the financial difficulties you are experiencing and would like to help alleviate your concerns. We want to lighten your load by coming up with a debt settlement plan crafted just for you.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We would be happy to give you a no-cost initial consultation. We can find you the perfect solution to tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. We provide a full range of services to people and companies. If any of this sounds familiar to you and you’re serious about finding a solution, let us know. We will get you back to living a happy life, whether or not there is an economic recession in Canada.

Call us now for a no-cost initial consultation. We are licensed professionals.debt consolidation loans in canada

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DISCHARGE FROM BANKRUPTCY CANADA: OUR DETAILED STEP-BY-STEP GUIDE

discharge from bankruptcy canada
discharge from bankruptcy canada

What are the implications of discharge from bankruptcy Canada?

If you are experiencing financial troubles and can’t pay your debts, you can file for bankruptcy in Canada. This legal process lets you off the hook for your debts and start fresh. Once you’re discharged from bankruptcy, you’re no longer responsible for those debts (other than for a few exceptions noted below). Filing for bankruptcy is stressful. We understand how difficult and stressful the bankruptcy process can be, so we hope that this will be a helpful resource for you.

Once the Trustee has completed their duties under the Bankruptcy and Insolvency Act (Canada) with respect to the administration of your property and the bankruptcy estate, the next step in the bankruptcy process is they must apply for a discharge. This will occur after the Trustee has applied for your discharge from bankruptcy Canada, even if you did not get an absolute discharge.

This Brandon’s Blog is for people who have made a bankruptcy filing but have not yet been discharged. If your Licensed Insolvency Trustee has been discharged or is otherwise unable to help you with a second discharge application, this blog will provide you with the information you need to get through the process on your own.

Discharge from bankruptcy Canada: What are the implications if you are not discharged from bankruptcy?

If your previous application for discharge was unsuccessful, you remain an undischarged bankrupt and your Trustee is not obliged to make another application on your behalf. However, you should check with your Trustee first as they may or may not be prepared to do so.

We often receive calls from individuals who claim that their Trustee has been discharged, but they have not been. They express confusion as to why their Licensed Insolvency Trustee will not make an application for their discharge from bankruptcy. A quick search reveals that in these cases, the individual received a conditional discharge, but has not yet fulfilled all of their conditions to get a bankruptcy discharge. That is why their conditional discharge has not yet been converted into an absolute discharge.

If you filed an assignment in bankruptcy and are still an undischarged bankrupt, you may be able to apply for discharge from bankruptcy. An insolvency Trustee only needs to make one application on your behalf. Once the Trustee obtains their discharge, they do not need to make your application for discharge on your behalf again.

The Licensed Trustee cannot be discharged until all bankruptcy administration requirements have been met, including making the first discharge application on behalf of the bankrupt person.

discharge from bankruptcy canada
discharge from bankruptcy canada

Discharge from bankruptcy Canada: How do you obtain a bankruptcy discharge in Canada?

Automatic discharge from bankruptcy is typically granted unless there are exceptional circumstances. If there is opposition to the automatic discharge, the discharge application must be brought before the court for a hearing.

If you did not complete all of your bankruptcy duties as the bankrupt person, such as providing income and expense statements, attending required financial counselling sessions, and/or paying surplus income, your Trustee had reasons to oppose your automatic discharge and scheduled a hearing with the court.

The Report of Trustee on Bankrupt’s Application for Discharge sets out the reasons for the insolvency Trustee’s opposition to a bankrupt’s application for discharge. This document is on file with the court.

If a bankrupt does not receive a discharge at the time of the court application, it is usually because they have not yet done what is required. The associate justice/registrar who heard the application at court may have therefore adjourned the application (i.e. stated it was to be heard at a later date, which may or may not have been set).

The court may have adjourned your discharge application or imposed conditions that must be met before you are entitled to a discharge. The disposition sheet from the hearing will state what the court decided in this regard.

Discharge from bankruptcy Canada: What are the steps to clear my bankruptcy?

It’s not unusual for people who didn’t do what they were supposed to at first to try and get back on track and do what’s required to get their discharge. You must comply with your duties during bankruptcy to the best of your ability and be prepared to explain to the court any deficiency in doing so.

For example, to get your discharge, you must be able to provide details and evidence of your income and expenses during bankruptcy. You probably recall that you were required to provide the Trustee with your monthly income and expense reports. If you’re unable to provide the court with those details, the court may want to review your income tax returns for that period. If you want the court to rescind or vary the conditions imposed, you must show that you complied with the conditions to the best of your ability.

There are many examples of trying your best to meet the conditions but maybe not perfectly. If the court orders you to pay a certain sum of money to the Trustee by a certain date, you can make the court-ordered additional payment but not by the specified date. If you were required to make surplus income monthly payments but didn’t make them all, that’s one reason there were conditions attached to your discharge. You can apply to the court to change the date and get your discharge.

Another one is that you didn’t finish all your required credit counselling sessions. You could finish them and then provide proof of completion to the court.

discharge from bankruptcy canada
discharge from bankruptcy canada

Completing your own application for discharge from bankruptcy Canada

Making your own application to be discharged from bankruptcy can be a bit daunting, but don’t worry—just follow a few simple steps and you’ll be all set. Here are some tips to help you get your application ready and submitted without the help of a bankruptcy trustee or a bankruptcy lawyer.

To begin, you’ll want to locate your bankruptcy file at the court office. Once you have your file, be sure to look through it thoroughly to find:

  • your bankruptcy court file number;
  • the Report of Trustee on the Bankrupt’s Application for Discharge under section 170 of the BIA;
  • any order issued by the bankruptcy court at the original discharge hearing; and
  • the court’s disposition sheet from any previous discharge hearing identifies what the court previously ordered or decided.

You will need copies of these documents. You can ask the court office to make copies for you. They will charge you a fee for photocopying. You should check the Report of the Trustee, the court’s disposition sheet, and any court order to see what you failed to do and what conditions the court has imposed. Also, it is not a bad idea to find out who attended your last application for discharge.

You should check the Report of the Trustee, the court’s disposition sheet, and any court order(s) in the file to see what you didn’t do and what conditions (if any) the court has imposed. Lastly, you need to schedule a date for your discharge hearing with the bankruptcy court.

You will be required to prepare the following documents and file them with the court:

  • a notice of hearing for a bankrupt person’s application for discharge;
  • your affidavit explaining why you believe you are entitled to the discharge order sought;
  • an affidavit of service; and
  • a draft of the order sought.

The Associate Justice/Registrar in Bankruptcy hearing your application for discharge may make any order he or she sees fit. If the order you are seeking is made, he or she may accept and sign it in court on the day you appear, which may save you a period of time later on.

Requisition – Notice of hearing for bankrupt’s discharge from bankruptcy Canada hearing for discharge

The first step in obtaining a discharge in bankruptcy is to file a Notice of Hearing for Bankrupt’s Application for Discharge with the court. That document would have first been filed by the Trustee when the Application for discharge is first scheduled. If you have a copy of it, it will be a good precedent for you to follow.

A requisition must be filed again by you in order to have the matter brought back before the court.

discharge from bankruptcy canada
discharge from bankruptcy canada

Discharge from bankruptcy Canada:The Affidavit

An affidavit is a formal, written statement that provides key information in your legal case. Any evidence you want the court to consider in your application must be submitted in an affidavit. Your affidavit should describe the events leading up to your bankruptcy, and your current financial situation.

You must swear or affirm your affidavit before a notary public or commissioner of oaths. Make sure that your affidavit only includes evidence that is relevant to your application for discharge.

The court is familiar with a standard form of affidavit for discharge applications. You should familiarize yourself with that normal format. You should also include:

  • additional information about why you did not seek a bankruptcy discharge earlier;
  • is this a 1st-time bankruptcy, 2nd-time bankruptcy or more;
  • why you have not been able to comply with the bankrupt’s duties or the requirements of an earlier court order; and
  • state the reasons you are wanting to be discharged now.

You will need to attach any relevant documents to your affidavit in support of your application, including a statement of your current income, expenses, assets, liabilities and any previous bankruptcy information.

Discharge from bankruptcy Canada:Affidavit of Service

To serve documents, you must provide a written copy to the party to be served. You need to obtain a signature or other confirmation, such as an email, to confirm that the document was properly served. You will need to serve the filed Requisition and all filed Affidavits and documents on:

These parties may attend your hearing and make submissions.

In order to provide proper service within the required time period before your discharge hearing, you must familiarize yourself with the rules. You must also provide proof of service at the hearing, especially if no one else attends. This proof of service can be the signature of everyone served to show the date they were served.

An Affidavit of Service can also be filed with the court. This Affidavit of Service is separate from the Affidavit filed with the court regarding your reasons for entitlement to anabsolute bankruptcy discharge certificate.

discharge from bankruptcy canada
discharge from bankruptcy canada

At the discharge from bankruptcy Canada hearing

When you appear in court for your discharge hearing, you will be able to present your case to either an Associate Justice or Registrar in Bankruptcy. If your application is being opposed, the creditors opposing your discharge need to file a notice of opposition. In this case, the hearing will be in front of a bankruptcy Judge. This is the normal process followed:

  1. You explain why you believe you are entitled to the order you are seeking, for example, an absolute discharge from bankruptcy.
  2. Anyone opposing your application explains his or her position.
  3. The Judge or Registrar may ask questions relating to the affidavits and documents you have filed and make suggestions or give directions.

When presenting your position at the hearing, remember to:

  1. Clearly state what order you are seeking from the Registrar in Bankruptcy or Judge.
  2. Outline the facts supporting your application in a concise manner.
  3. Explain the law on the subject and how it applies to the facts of your case.

Your conduct before and during bankruptcy will be taken into consideration when making a decision on your application for discharge. The Trustee’s report will provide information on your conduct before and during bankruptcy, which will be taken into account. if you did not attend the required financial counselling
sessions, did not file required statements of income and expense, and/or did not make the required surplus income payments to the Trustee for the benefit of your creditors.

The court will consider the relevant factors and make the appropriate order, or it may adjourn the hearing for further information or conditions to be met. Some of the types of orders the court may make are:

  • An order of discharge that is absolute and therefore you are immediately discharged from bankruptcy.
  • A conditional discharge may be granted. Examples of conditions are:
    • if the debtor pays any unpaid surplus income,
    • the debtor pays the outstanding balance for any asset that was agreed to be paid for; or
    • if the debtor pays a sum of money to the Trustee toward their debt obligations, as decided by the court.
  • A discharge that has been suspended.
  • The court may refuse to issue a discharge order if it is not satisfied that you have made full and adequate disclosure, or if there are issues with your conduct.

Discharge from bankruptcy Canada: Order for discharge

The Judge or Registrar in Bankruptcy will grant a discharge order at the end of the hearing. The type of discharge will be one of the kinds indicated above. If you prepared a draft order and the Registrar in Bankruptcy or Judge finds it acceptable, they will sign it and you can then have it filed with the court. However, if your application was opposed, keep in mind that one of the opposing parties may choose to appeal the discharge order.

If you have not prepared your order before the hearing, you should do so after the hearing and submit the order in duplicate to the court. The court office will then send the order to the Registrar in Bankruptcy or Judge who heard your application for signing. Once you receive your copy of the signed order, your discharge will be official.

When you receive a copy of the signed order, you must provide a copy to the Office of the Superintendent of Bankruptcy. They will in turn notify the credit bureaus and Canada Revenue Agency of your discharge.

When you have received your absolute discharge, you are no longer legally responsible for repaying debts that you incurred before your assignment in bankruptcy. You will get rid of debt with some exceptions set out in Section 178 of the Bankruptcy and Insolvency Act. They are:

  • payment of child support or alimony;
  • student loans, if you have not been a full-time or part-time student for less than 7 years;
  • a fine or penalty imposed by the court; or
  • debt resulting from fraud.

    discharge from bankruptcy canada
    discharge from bankruptcy canada

Discharge from bankruptcy Canada: Are you tired of being in debt?

Bankruptcy law and the bankruptcy process can be complex, so it may be worth retaining a bankruptcy lawyer to help you apply for your discharge. Ultimately, it is up to you, but hopefully, this guide to discharge from bankruptcy Canada will lay out the steps you need to take if you wish to apply for a discharge yourself.

I hope that you found this discharge from bankruptcy Canada Brandon’s Blog informative. If you’re sick and tired of carrying the burden of debt and ready to live a much better life, we can assist. We know exactly how it really feels to be in debt as well as feel like you’re never going to get ahead. We have actually helped lots of people and businesses that were in your position reach financial stability, so we understand it’s feasible for you to prosper in your objective of ending up being debt-free. Nevertheless, it will certainly require some work on your part. We’ll be right here to assist you with every action necessary.

The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too many personal unsecured debts, Credit card debt, income tax debt liability, unsecured loans or personal obligations from the running of your company or from being a business owner. These are all types of debt we can help you eliminate. We are aware of your financial difficulties and understand your concerns. Filing bankruptcy is the last option we explore only after we have exhausted all other options to avoid bankruptcy, such as financial restructuring through a debt repayment plan.

It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to give you the best management advice to get you out of your outstanding debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We are sympathetic to the financial difficulties you are experiencing and would like to help alleviate your concerns. We want to lighten your load by coming up with a debt settlement plan crafted just for you.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We would be happy to give you a no-cost initial consultation. We can find you the perfect solution to tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. We provide a full range of services to people and companies. If any of this sounds familiar to you and you’re serious about finding a solution, let us know. We will get you back to living a happy life, whether or not there is an economic recession in Canada.

Call us now for a no-cost initial consultation. We are licensed professionals.

discharge from bankruptcy canada
discharge from bankruptcy canada
Categories
Brandon Blog Post

SUSPENSION OF DISCHARGE FROM BANKRUPTCY: OUR COMPLETE GUIDE ON BANKRUPTCY DISCHARGES

suspension of discharge from bankruptcy
suspension of discharge from bankruptcy

Suspension of discharge from bankruptcy: Bankruptcy discharge and what it means for the bankrupt

The implications of an absolute bankruptcy discharge on the debtor are significant. Once an absolute discharge is granted, the debtor is no longer liable for any unsecured debts that existed at the date of bankruptcy. The debtor is released from having to repay any debts that they incurred before filing for bankruptcy.

This means that the debtor no longer has to worry about repaying those debts and can move on with their life. This provides a fresh start for the debtor and helps them get back on their feet.

There are different types of bankruptcy discharges. The one every bankrupt person wants is an absolute discharge. However, sometimes there is a reason for either a creditor, the licensed insolvency trustee (formerly called a trustee in bankruptcy) (Trustee), or both, to oppose a bankrupt person’s discharge. When this happens, there must be a court hearing to determine what form of discharge the bankrupt is entitled to.

The purpose of the discharge hearing is for the court to view the evidence put forward by those opposing an absolute discharge, the bankrupt who believes they are entitled to one and to review the Trustee’s report and gain further information about the conduct of the bankrupt person, both before and during bankruptcy, and to hear about the administration of the bankruptcy.

At the discharge hearing, the court is attempting to balance the right of a bankrupt person to receive a discharge and the rights of the creditors to be paid. The court will also be concerned that the administration of the bankruptcy is not only fair to all parties but is also seen to be fair. I recently came across a decision of the Court of King’s Bench of Alberta which exemplifies this finding of balance.

In this Brandon’s Blog post, I’m discussing what it means when a bankrupt person is discharged, as well as the process and different types of discharges. One type of discharge that a bankrupt person can be given is a suspension of discharge from bankruptcy taking place. I’m also highlighting this recent court decision that demonstrates the balance and fairness that the courts strive for.

Suspension of discharge from bankruptcy: When can a bankrupt person be discharged?

If you have filed for bankruptcy for the first time, you may qualify for an automatic discharge after a 9 month bankruptcy period. To qualify for this automatic discharge, you must have:

  • attended the two mandatory financial counselling sessions with the Trustee;
  • no requirement to pay surplus income, being a portion of their income is paid to the bankruptcy estate according to guidelines set by the Office of the Superintendent of Bankruptcy (OSB or Official Receiver); and
  • no opposition to his or her discharge.

The only party that can authorize an automatic discharge in bankruptcy is the Trustee.

If you have made an assignment in bankruptcy before and so this subsequent bankruptcy is your 2nd bankruptcy, you will need to wait at least 24 months before you can receive a discharge. If you have a surplus income payment requirement, your bankruptcy will be prolonged to 36 months.

If you have filed for bankruptcy twice before, you can expect the timeline for a third bankruptcy to be the same as your 2nd. However, the Trustee or creditors may be more resistant to your discharge this time. The court may extend the timeline if it deems necessary.

suspension of discharge from bankruptcy
suspension of discharge from bankruptcy

Suspension of discharge from bankruptcy: When is a discharge challenged?

The Trustee may oppose a bankrupt’s discharge by issuing a notice of opposition. This means that the bankrupt did not fulfill all of their duties when the time came for the Trustee to make a determination if the bankrupt is entitled to a discharge.

If one or more creditors oppose the debtor’s bankruptcy discharge, they may believe that additional information is needed to be evaluated by the court in order to determine what kind of discharge, if any, the debtor should receive.

The court will then decide what kind of bankruptcy discharge the bankrupt should receive.

Suspension of discharge from bankruptcy: What are the different types of discharge that can be granted in bankruptcy proceedings?

There are different kinds of discharge from bankruptcy process. They are:

  • Absolute discharge: you are entitled to an immediate discharge;
  • Conditional discharge: you can obtain a discharge after fulfilling one or more conditions;
  • Suspension of discharge from bankruptcy – a suspended discharge from bankruptcy means that the discharge will occur at a later date set by the court, and will be combined with either an absolute bankruptcy discharge or conditional bankruptcy discharge;
  • Refused discharge – the court can refuse the bankrupt’s discharge due to unsatisfactory fulfillment of duties and lack of response to the Trustee’s inquiries; or
  • “no order” – the Trustee has advised the court that, despite the passage of time, the bankrupt has not fulfilled all of his or her duties, has failed to respond to the Trustee’s requests, and the Trustee wishes to seek its discharge.

The bankrupt’s discharge in bankruptcy occurs when the bankrupt person has fulfilled the conditions set by the court and/or the suspension of discharge from bankruptcy period has ended.

The duration of bankruptcy depends on all of the above factors.

suspension of discharge from bankruptcy
suspension of discharge from bankruptcy

Suspension of discharge from bankruptcy: There are five types of debt that are not dischargeable in bankruptcy

What debts cannot be discharged through bankruptcy? There are 5 types of debts that cannot be discharged. They are:

  1. alimony or child support payments;
  2. penalties or fines set by the court;
  3. claims from fraud or fraudulent breach of trust;
  4. student loan debt if it is less than 7 years since you stopped being a full-time or part-time student; and
  5. Any debts that are properly secured by an asset are not released as a result of a bankruptcy discharge.

There are five types of debt that are not discharged in bankruptcy. The debtor will need to continue paying these financial obligations according to their terms. For all other unsecured debts, the discharge from bankruptcy will discharge all those debts.

Suspension of discharge from bankruptcy: The opposed bankruptcy discharge process case

The decision was released on September 29, 2022, in Wasylynuk (Re), 2022 ABKB 650 (CanLII), For me, this Court of King’s Bench of Alberta (it is still going to take me time to get used to the switch from “Queen” to “King”!) by the Registrar in Bankruptcy, epitomizes the balance the court strives to find in bankruptcy discharge situations.

This is an application for a bankrupt’s discharge which is opposed. The bankrupt, Ms. Wasylynuk, has completed all required duties. She is a first-time bankrupt with a surplus income requirement. The bankruptcy was driven by litigation costs when Ms. Wasylynuk unsuccessfully sued her surviving brothers and sisters for a share of her father’s estate.

The bankrupt filed a challenge to her father’s will and the disposition of his property in 2008. This led to 10 years of litigation for a share of the estate. All of the estate had been given to one of her brothers, who was tasked with caring for the father and, after his passing, dividing it as he saw fit. Ms. Wasylynuk rejected her brother’s offer of a share, wanting more.

Prior to her bankruptcy, Ms. Wasylynuk brought an application, presumably based on legal advice she received, to set aside her father’s will and an inter vivos gift made by her father that gave everything to one of her siblings. The will and the gift were both drawn up by lawyers with doctors’ certificates of competence and capacity. The will and the gift were upheld by the lower court. The lower court’s ruling was upheld on appeal. The Supreme Court of Canada refused to hear the case.

suspension of discharge from bankruptcy
suspension of discharge from bankruptcy

Suspension of discharge from bankruptcy: The opposition to bankruptcy discharge and the evidence

The bankrupt’s siblings are the opposing creditors. The opposing creditors dispute Ms. Wasylynuk’s characterization as an honest but unfortunate debtor. Their grounds for opposition are:

  • The value of the bankrupt’s assets does not equal fifty cents on the dollar of the bankrupt’s unsecured liabilities, and the bankrupt is responsible for the circumstances that caused this.
  • Ms. Wasylynuk has not been able to provide an explanation for the disappearance of assets, or for why there are not enough assets to cover debts.
  • She was eligible to make a proposal under the Bankruptcy and Insolvency Act (Canada) (BIA) rather than bringing on this bankruptcy process but did not.

The evidence included the fact that, during the litigation, the bankrupt employed several different law firms and did not pay most of the legal fees she incurred. At the time of her bankruptcy, she owed in excess of $200,000 for unpaid legal fees. In her bankruptcy filing, she claimed $5,500 in assets, consisting of a motor vehicle, furniture, and personal effects, all of which were exempt.

Another bit of evidence was that Ms. Wasylynuk had likewise allowed a charge to be registered against the home in favour of her spouse to support his alleged loans to her of $277,000.00. Mr. Wasylynuk additionally declared an unsecured amount of $152,365.00 for loans to her. There were no documents to validate the amount. The Registrar noted that he was skeptical of these alleged loans as most of the bankrupt’s legal fees were unpaid.

On top of this, 13 months prior to her making her bankruptcy assignment, she transferred her half share of the matrimonial home to her husband. The bankruptcy Trustee did not have the funds to attack the transfer in the current bankruptcy administration.

Ms. Wasylynuk’s siblings’ litigation costs totalled approximately $750,000.00. The costs awarded from the first instance through the appeal will cover less than a third of those costs.

The Registrar calculated that, under Alberta law, the bankrupt’s non-exempt equity in the matrimonial home at the time of transfer to the spouse was approximately $118,000.00.

Suspension of discharge from bankruptcy: The balancing act of the Registrar’s decision

The Registrar took note of the above and made several findings. First was that Ms. Wasylynuk, 59, is a specialized nurse in a teaching position. She makes nearly $60 per hour. She continues to live in her fully encumbered matrimonial home with her husband, which is now out of reach of her creditors.

The Trustee explained that a proposal was ruled out because the litigation between Ms. Wasylynuk and her siblings that led to this bankruptcy was highly acrimonious. The Registrar found that it is unclear whether a proposal would have been doomed to failure because of ill will between the siblings, particularly since a proposal would have resulted in a better result for the creditors than her bankruptcy.

Ms. Wasylynuk has paid $51,000 into the estate over her 21-month bankruptcy. Her monthly surplus is $2,000. At that surplus rate, a 60-month proposal would have achieved $120,000 for her creditors or about the value of her non-exempt portion of the matrimonial home.

So to balance the scales, the Registrar gave Ms. Wasylynuk a conditional discharge. Ms. Wasylynuk’s discharge is conditioned upon her paying an additional $60,000.00 into the bankruptcy estate at the rate of a monthly payment of $2,000.00. By ordering these additional payments, once they are all made, the amount paid into the bankruptcy estate will be roughly equal to the minimum amount she would have paid if she chose to make a proposal over bankruptcy.

suspension of discharge from bankruptcy
suspension of discharge from bankruptcy

Suspension of discharge from bankruptcy: Ready to be debt-free?

I hope that you found this suspension of discharge from bankruptcy Brandon’s Blog informative. If you’re sick and tired of being in debt and ready to live a much better life, we can assist. We know exactly how it really feels to be in debt as well as feel like you’re never going to get ahead. We have actually helped lots of people and businesses that were in your position reach financial stability, so we understand it’s feasible for you to prosper in your objective of ending up being debt-free. Nevertheless, it will certainly require some work on your part. We’ll be right here to assist you with every action necessary.

The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too many personal unsecured debts, Credit card debt, income tax debt liability, unsecured loans or personal obligations from the running of your company or from being a business owner. These are all types of debt we can help you eliminate. We know that you are worried because you are facing significant financial challenges. Filing bankruptcy is the last option we explore only after we have exhausted all other options to avoid bankruptcy, such as financial restructuring through a debt repayment plan.

It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to give you the best management advice to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. We know that we can help you the way we take the load off of your shoulders and devise a debt settlement plan.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We would be happy to give you a no-cost initial consultation. We can find you the perfect solution to tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. We provide a full range of services to people and companies. If any of this sounds familiar to you and you’re serious about finding a solution, let us know. We will get you back to living a happy life, whether or not there is an economic recession in Canada.

Call us now for a no-cost initial consultation. We are licensed professionals.

suspension of discharge from bankruptcy
suspension of discharge from bankruptcy
Categories
Brandon Blog Post

CAN A LICENSED INSOLVENCY TRUSTEE NEAR ME OR ELSEWHERE POOCH OUT OF ESSENTIAL DUTIES?

licensed insovlency trustee near me
licensed insovlency trustee near me

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You can easily find a licensed insolvency trustee near me or you

There are Licensed Insolvency Trustees (LITs) (formerly called a bankruptcy trustee or trustees in bankruptcy) all over Canada who can help you with your debt problems. They’re the only debt professionals and debt advisors regulated by the federal government and are experienced in helping individuals and businesses figure out the best way to deal with their financial difficulties. There are about 1,066 individual Trustees and 218 different Insolvency Trustee Firms/bankruptcy companies in Canada, making it easy to find a licensed insolvency trustee near me or you.

The primary concern is finding a Trustee that you feel comfortable working with to discuss your debt issues and that is an ideal match for you or your business. You also need to find one that is willing to carry out its required functions. This is the same whether it is businesses with debt problems or it is people in debt.

Today’s Brandon’s Blog is about a recent decision from the Court of Appeal for Ontario which confirms that there are certain tasks in the administration of bankruptcy, be it a personal bankruptcy or corporate bankruptcy, or one of the alternatives to bankruptcy under the BIA, a Division I proposal or consumer proposal, that the licensed insolvency trustee cannot opt-out of.

The court’s decision confirms that a Trustee has certain duties under the Bankruptcy and Insolvency Act (Canada) (BIA) which are not optional, regardless of any difficulty that may be involved or the wishes of the party funding the Trustee. The case is Conforti Holdings Limited (Re), 2022 ONCA 651 (CanLII) which is the appeal by the licensed insolvency trustee of the lower court finding. I will describe it in a minute.

Licensed insolvency trustee near me: LITs are federally regulated to ensure consistent standards and supervision throughout Canada

If you’re struggling with debt, a Licensed Insolvency Trustee can help. These federally regulated professionals provide advice and services to individuals and businesses and can help you make informed choices about dealing with your financial difficulties. With their help, you can get back on track and start moving forward.

The only individuals who are authorized to administer Canadian government-regulated insolvency services that would allow you to be discharged from your debt are Licensed Insolvency Trustees. If you are in significant financial difficulty, speaking to a Licensed Insolvency Trustee near me or you to get debt management advice is the right thing to do to learn of the debt restructuring options available to come up with the right debt solution for your specific situation.

If you are not happy with the actions or decisions of a Licensed Trustee that you are unable to resolve, you can file a complaint with the federal regulator. LITs are mandated to follow all federal statutes, rules and guidelines, and your allegations will be given the appropriate consideration.

licensed insovlency trustee near me
licensed insolvency trustee near me

Licensed Insolvency Trustee near me: We’ll speak with your creditors for you

After you file for a consumer proposal, Division I proposal, corporate bankruptcy, or personal bankruptcy, the Trustee will manage your affairs with your creditors. This includes sending out a notice with additional documents required by the BIA to all creditors listed on your sworn statement of affairs.

If creditors have questions, they should be speaking with the Trustee, not you. Also, unsecured creditors cannot continue or initiate any collection action or legal proceeding against the debtor who has filed either for financial restructuring or bankruptcy. The collection calls stop in either the consumer proposal process or the bankruptcy process.

Remember, only Licensed Insolvency Trustees are authorized to conduct government-regulated insolvency proceedings – qualified professionals who understand the complexities and nuances of this process. This ensures that your insolvency proceeding is handled correctly, efficiently and with the utmost care.

Locate a Licensed Insolvency Trustee near me who is currently active

So how would I choose a Licensed Insolvency Trustee near me for my problem financial situation and find debt relief solutions? There are 3 main ways that I recommend to anyone who asks me:

  • Ask a professional that you trust and feel that you can confide in for a referral. Your lawyer, insurance agent, banker or a non-profit credit counselling agency are but a few examples.
  • If you’re thinking about personal bankruptcy or bankruptcy for your business, it is very important to pick a Trustee you really feel comfortable with. A fast Google or Bing search for “Licensed Insolvency Trustee near me” to check out various internet sites can help you get a feel for various Trustees’ tones. If one resonates with you, make a no-cost confidential consultation to discuss your circumstance.
  • The Office of the Superintendent of Bankruptcy (OSB) has a database that is complimentary to search to find every Trustee in Canada. Do that search and choose a few. I still suggest looking at their internet site and getting a free appointment before making any kind of decision on the various debt relief options.

    licensed insovlency trustee near me
    licensed insolvency trustee near me

How does a Licensed Insolvency Trustee near me get paid?

The Trustee’s fee and disbursements in a financial restructuring are normally paid out of the funds that the person or company makes available when compromising the debt of the unsecured creditors. In other words, it is the creditors who are actually paying the Trustee.

In a receivership or bankruptcy, the Trustee is paid from the proceeds of the sale of assets. If there are insufficient assets to cover the Trustee’s fees, the Trustee may seek a guarantee from a third party who is willing and able to pay, either by putting up a cash retainer, through monthly payments or both.

The guiding philosophy is that the Trustee has done its job and done so properly. This leads us to today’s discussion of the case.

Licensed insolvency trustee near me: What does a Trustee do?

A Trustee is responsible for administering the insolvency estate. This includes tasks such as collecting and selling assets, vetting and adjudicating creditor claims and distributing funds to the creditors. This is a perfect introduction to the recent Court of Appeal for Ontario decision in Conforti Holdings Limited (Re), 2022 ONCA 651 (CanLII).

Conforti Holdings Limited (CHL) as well as the Trustee in the Division I Proposal (Proposal Trustee) appealed the dismissal of the Proposal Trustee’s application for an order advising as well as directing the Proposal Trustee to not carry out the adjudication of the Moroccanoil, Inc. (Moroccanoil) proof of claim or the cross-claim by CHL versus Moroccanoil, as called for by s. 135 of the BIA. They also seek the lifting of the stay of proceedings to allow the parties to continue litigating in New Jersey.

CHL had been operating a chain of 52 hair salons for many years and had been embroiled in litigation with Moroccanoil in New Jersey for over seven years, over differences related to the supply of hair products. When told that CHL had filed a notice of intention to make a proposal pursuant to the BIA on September 28, 2020, the New Jersey court stayed proceedings there, at Moroccanoil’s request, and over CHL’s objections. The New Jersey proceedings have been case managed and the presiding judge said that the case could proceed to trial if the stay were lifted by the Canadian bankruptcy court.

Moroccanoil filed a proof of claim for $2,807,478.12 in CHL’s proposal proceedings. The Proposal Trustee filed a motion to be relieved of its obligations to determine whether the claim was provable or to value it.

This is a very basic cornerstone duty of all Licensed Insolvency Trustees. I am surprised that the Trustee and the company would prefer to continue with costly litigation in the United States, rather than reach an agreement on what value the claim should be allowed for.

By the very nature of the financial restructuring proceedings, CHL would not be paying the claim in full. Perhaps they were worried that Moroccanoil would vote against the Proposal and could carry the vote. In that case, CHL would become automatically bankrupt. However, as part of CHL agreeing to an amount of claim to allow, they could extract from Moroccanoil the quid pro quo that Moroccanoil would vote in favour of the Proposal.

licensed insovlency trustee near me
licensed insolvency trustee near me

Licensed insolvency trustee near me: What the lower court said

The motion was denied for two reasons:

  1. It was a requirement under s. 135(1.1) of the BIA for the Trustee to determine the claim, and there was no jurisdiction to exempt the Trustee from carrying out this basic duty.
  2. The judge ruled that even if the court had the authority to make the requested order, the order was not warranted as it was not one of the clear cases that justifies the court departing from the usual process for valuation of claims under the BIA. He was not convinced that permitting the New Jersey proceedings to continue would be more efficient than adjudicating the Moroccanoil claim in the proceedings under the BIA.

Licensed insolvency trustee near me: Leave to appeal to the Court of Appeal for Ontario

The Trustee and CHL asked to appeal the lower court decision, but the Court of Appeal for Ontario said no. The appellate court said that there wasn’t obvious merit to the appeal.

The motion judge decided that it wouldn’t be right to have proceedings involving CHL and Moroccanoil go ahead in two different jurisdictions. The Court of Appeal for Ontario said that this decision could not be appealed. The proposed appeal is from the order made, not the reasons.

This doesn’t surprise me. There are two basic truths for any court-appointed officer:

  1. The court officer will not be excused from performing the most basic duties.
  2. Don’t ask the court to retrospectively approve a mistake you may have made. You just need to work through it.

    licensed insovlency trustee near me
    licensed insolvency trustee near me

Licensed insolvency trustee near me: Are you sick of being in debt?

If you’re seeking to leave financial debt behind and live a much better life, we can assist. We know exactly how it really feels to be in debt as well as feel like you’re never going to get ahead. We have actually helped lots of people and businesses that were in your position reach financial stability, so we understand it’s feasible for you to prosper in your objective of ending up being debt-free. Nevertheless, it will certainly require some work on your part. We’ll be right here to assist you with every action necessary.

The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too many personal unsecured debts, Credit card debt, income tax debt liability, unsecured loans or personal obligations from the running of your company or from being a business owner. These are all types of debt we can help you eliminate. We know that you are worried because you are facing significant financial challenges. Filing bankruptcy is the last option we explore only after we have exhausted all other options to avoid bankruptcy, such as financial restructuring through a debt repayment plan.

It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to give you the best management advice to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. We know that we can help you the way we take the load off of your shoulders and devise a debt settlement plan.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We would be happy to give you a no-cost initial consultation. We can find you the perfect solution to tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. We provide a full range of services to people and companies. If any of this sounds familiar to you and you’re serious about finding a solution, let us know. We will get you back to living a happy life, whether or not there is an economic recession in Canada.

Call us now for a no-cost initial consultation. We are licensed professionals.

licensed insovlency trustee near me
licensed insolvency trustee near me
Categories
Brandon Blog Post

ECONOMIC RECESSION IN CANADA: IS CANADA’S ECONOMY HEADED FOR AN INTENSE RECESSION?

economic recession in canada
economic recession in canada

economic recession in canada

Economic recession in Canada: In Canada, the economy is under pressure

The economy in Canada is under pressure as the country deals with the fallout of the coronavirus pandemic. The pandemic has hit Canada hard. On one hand, certain Canadian businesses have shut down and people losing their jobs. On the other, there are job openings for other Canadian businesses. In August 2022, the unemployment rate in Canada increased from its record low in June and July, to 5.4%. The Canadian government has been working on trying to mitigate the damage and create supportable economic growth, but the economy is still struggling. The economic news is not good.

Coming out of the COVID economy there are many forces around the world causing global inflation. Supply chain shortages and the war in Ukraine are but two such global forces. Canada is experiencing inflationary pressures like every other country. Chief economists have mixed views on whether there will be an economic recession in Canada.

In response to the new global inflationary pressures, the Bank of Canada, like many other central banks, is raising its key interest rate regularly and significantly. The Bank of Canada is using its old domestic inflation policy rate fighting tools to fight these new pressures. It has promised more aggressive interest rate hikes. The federal government supports these rate hikes. Prime Minister Trudeau and his deputy chief, our Finance Minister and Deputy Prime Minister, Chrystia Freeland have said so.

As a result, the pressure on the economy is evident in the housing market. Home sales have dropped sharply, and house prices are also starting to fall. Notwithstanding the Bank of Canada’s key interest policy rate was designed to calm down a frothy real estate market, it is also a worry for the Canadian economy, as the housing market has been one of the bright spots in recent years.

The Bank of Canada’s inflation-fighting key interest rate policy tool has the potential not only to reduce inflation but if not closely managed, could throw us into a Canadian recession. We see financial markets, especially the stock markets, reacting negatively to this possibility.

Craig Wright, Senior Vice President & Chief Economist of Royal Bank of Canada believes Canada is headed for a recession, but that it will be a moderate one. So the ultimate question Canadians are asking is there a potential recession on the horizon or, how likely is an economic recession in Canada?

Economic recession in Canada: Bank of Canada believes that higher rates are essential to controlling inflation expectations

Higher interest rates ultimately force a contraction of the Canadian economy and an overall economic decline. The Bank of Canada really only has this one tool if it is going to act. Inflation is strong and is affecting longer-run business and consumer expectations. If inflation expectations rise, they can become self-fulfilling.

If inflation rates stay high, it can have very troubling economic impacts. Businesses will start charging more for their products. For things we need, we would have to pay more and would probably start asking for higher salaries and wages. If Canadians think inflation will go way past the Bank of Canada’s target, it could cause big problems with greater interest-rate hikes.

Both the US Fed and the Bank of Canada are increasing interest rates in an effort to control inflation. And neither bank is finished yet. The U.S. Fed and the Bank of Canada are expected to raise rates through to the end of 2022. That’s high enough to significantly restrict growth.

economic recession in canada
economic recession in canada

Economic recession in Canada: Although rates will eventually go down, they will not do so until inflation has cooled off

Although oil prices have been settling down and therefore prices at the pumps are falling, food and other consumer goods continue to have steady price increases. Continued increases eventually get to the point where they are unsustainable. Inflation won’t slow down until demand falls. Central banks will not ease interest rates until demand falls off sufficiently to reverse the current inflationary trends. If global economies cool off, it will help temper inflation.

Although labour shortages are preventing some expansion, many markets are still growing. However, disruptions from the pandemic continue to make it difficult for China to expand. Slowing growth abroad may have some negative effects on the US and Canadian economies as well.

The Bank of Canada will have to work very hard to find the right balance of interest rate hikes to cool inflation without causing an economic crisis or a recession.

Are we heading towards an economic recession in Canada and what can you do to help yourself?

I don’t know if the Bank of Canada’s current inflation-fighting efforts will force an economic recession in Canada, but Canadians have good reason to be concerned.

If you’re concerned about a recession in the near future, it’s important to be more mindful of your finances and think carefully about whether you can afford major purchases. What would happen if you were to lose your job or have an unexpected expense arise? It’s best to be prepared by carefully evaluating your savings and emergency fund now.

Your employment situation, savings, as well as spending practices can all contribute to how well you weather an economic downturn. Consequently, it is prudent to be prepared for bumpy rides by having a savings cushion and being mindful of living within your means. Additionally, those who are dissatisfied with their current employment or earnings may currently want to check out other opportunities prior to the Canadian economic situation worsening.

Douglas Porter, the Bank of Montreal chief economist, explains that how much Canadians feel the slowdown in the Canadian economy will depend on their individual circumstances. This includes what sector they’re employed in and whether they’re a borrower or saver.

One of the risks of a recession is the possibility of inflation eroding purchasing power and cementing in lower real wages. This is why it’s important to think carefully about asking for a raise now before a recession hits. Anyone considering a large purchase, like buying a home, must look at affordability.

Not only can you get the necessary financing to make the purchase, but can you afford the monthly payments? If you believe a recession is inevitable, then you should hold off making that real estate purchase because home prices inevitably will fall further in a recession.

economic recession in canada
economic recession in canada

What are 8 things you can do to prepare for an economic recession in Canada?

There are certain things Canadians can do to protect against an oncoming recession. It is not easy. It takes planning, belt-tightening and behaviour modification. Some possible steps include:

  1. Begin creating a household budget as soon as possible. This will help you to keep track of your income and expenses and help you make responsible financial decisions to not spend more than your household earns. Do not forget to use your family net income after accounting for income tax as your top income line.
  2. Now that you have your budget prepared, make sure you’re mindful of your spending and cut back where you can. Your budget needs to not only be break-even but there also needs to be a line for monthly savings.
  3. Credit cards can be useful when used properly. However, if you are using credit cards as a means to provide you with income that you do not earn, and increasing your credit card debt each month, this must stop. Lock your credit cards away, reduce your spending and eliminate your credit card debt.
  4. If you want to save money, you’ll have to cut back on eating out. Try to be mindful of how often you’re doing it, and you may be surprised at how much money you can save.
  5. Cutting back on your entertainment expenses is another way to reduce your spending. That means fewer nights out at the movies or out to eat, and maybe even skipping or cutting back on your various cable and streaming subscription services. It’s not going to be easy, but if you’re serious about saving money, it’s a necessary step.
  6. Take a critical look at your cell phone plan. Maybe there is a good deal on a more economical cell phone plan available. It is tough in Canada to do so because of the concentration of power by having so few Canadian providers, but that does not mean that you should not try.
  7. Do not incur new debt.
  8. Keep saving.

What if the economy in Canada is expected to experience a recession in the near future and you cannot hang on anymore?

We’re getting increasingly more telephone calls from people who state they or their companies have been hit hard by the pandemic, and they don’t see an escape. They applied for and received CERB payments. They really believed they qualified, and now the Canada Revenue Agency is reassessing their eligibility and demanding the money back.

We are getting calls from entrepreneurs. Their companies received CEBA loans but were unable to survive — their businesses had to close their doors even before an economic recession in Canada hit.

People are worried about what to do. These calls are coming daily. They are looking for answers to how they can bail themselves out of COVID-induced financial troubles, especially if there will be an economic recession in Canada.

Are you or your company in need of financial restructuring? Are you or your company insolvent due to a contract you may have entered into? Can you or your business not able to afford to make all your necessary debt payments, including mortgage payments?

The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too much personal debt. You are worried because you are facing significant financial challenges.

It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. We know that we can help you the way we take the load off of your shoulders and devise a debt settlement plan.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We can tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. If any of this sounds familiar to you and you’re serious about finding a solution, let us know. We will get you back to living a happy life, whether or not there is an economic recession in Canada.

Call us now for a no-cost initial consultation.

economic recession in canada
economic recession in canada
Categories
Brandon Blog Post

THE SAVVY FIRST MORTGAGEE: SOMETIMES YOU CAN’T ALWAYS GET WHAT YOU WANT

first mortgagee
first mortgagee

First mortgagee: What is the definition of a mortgagee?

A mortgagee is a person or company who gives a loan and uses the property as security for the debt. The mortgagee is the lender. The property owner who borrows the money is called the mortgagor.

I have acted in many real estate receivership matters. Real estate receiverships in Ontario normally involve a court-appointed receiver. The reason is usually that there are many competing parties and perhaps competing claims. The best way to resolve these disputes and for the party that purchases the real estate from the receiver is through court supervision.

In this Brandon’s Blog, I describe a recent decision of the Court of Appeal for Ontario involving a real estate receivership and the claim of the first mortgagee. I and my Firm are not involved in this matter.

What is the definition of a first mortgagee?

A first mortgage is a loan that is secured by real estate property in priority to any other loans registered against the real property. In the event of default, the first mortgage loan has priority over any other loans that are secured by the property. The first mortgagee is the mortgagee that holds that first mortgage for that mortgage loan.

first mortgagee

Institutional First Mortgagee Definition

The term “institutional first mortgagee” refers to a lending institution that provides financing for a first mortgage loan. Such mortgage lenders are typically a banking institution, credit union, or company that specializes in mortgage lending.

The institutional first mortgagee typically offers the lowest interest rate and best terms for the mortgage loan, especially if they are going to hold an institutional first mortgage. However, this is not the case if the institutional lender is one that deals with harder-to-finance properties or sub-prime mortgage loans.

Is it possible to have more than one mortgage at the same time?

There are instances where multiple mortgages may be an option. However, it is no secret that mortgages can be difficult to obtain. Financial institutions are often hesitant to approve multiple mortgages for fear of the borrower’s ability to repay. It is quite possible that to get more than one mortgage a borrower may have to look at the secondary mortgage market to accomplish that second or third mortgage transaction on the same property.

Every lender is different. One lender may see an opportunity where another would deem it too risky. The terms and pricing being offered will match the lender’s risk assessment. Remember, there can only be one first mortgage. Each subsequent mortgage will be more expensive and may have more onerous terms as each subsequent mortgagee is taking on more risk than the first mortgagee lending against the same real property.

Adding another mortgage may only exacerbate your financial difficulties if you are already struggling to make payments on one. Before making a decision, it is important to carefully weigh all of your options.

first mortgagee
first mortgagee

The case I am about to describe highlights the dangers of having an institutional first mortgage and then having a subsequent mortgagee holding the second mortgage when the owner’s business plan for the commercial real estate does not work out.

First National Financial v. Golden Dragon: You can’t always get what you want

The case before the Court of Appeal for Ontario is an excellent instance of not always obtaining what you want. The Rolling Stones stated it best in their 1969 tune, “You Can’t Always Get What You Want.”

The Court of Appeal decision that I describe below may seem fairly obvious. First National Financial GP Corporation v. Golden Dragon Ho 10 Inc., 2022 ONCA 621, stands for the proposition that in order for a first mortgagee (or any mortgagee) to make a claim for accelerated interest on the entire debt, or any other claim a mortgagee may make when a mortgage goes into default, you first must look at the mortgage terms to see what exactly they are entitled to.

The first issue to be addressed is a priority dispute between the first mortgagee, First National Financial GP Corporation (First National), the second mortgagee, Liahona Mortgage Investment Corporation (Liahona); and the mortgagors, Golden Dragon Ho 10 Inc. (GDH 10) and Golden Dragon Ho 11 Inc. (GDH 11) (collectively referred to as the mortgagor). The primary concern of this appeal is whether the trial judge erred in deciding that First National, as the first mortgagee, is entitled to payment of a future, unearned, interest to the end of the term of its closed mortgages.

Additionally, Golden Dragon appealed the receiver’s fee and costs approved by the lower court. The Court of Appeal for Ontario quickly dismissed their appeal.

First mortgagee: Should You Take Out a Second Mortgage?

When it comes to your finances, taking on more debt is generally not considered a good idea. However, there are some situations where taking out a second mortgage charge on title can make sense.

Opting for a second mortgage entails some risks. If you’re unable to keep up with all the mortgage payments, you could lose your property through the power of sale proceedings.

Golden Dragon used to own two residential apartment buildings that were next to each other in Ottawa. When they bought these properties, they assumed three closed registered mortgages: the first mortgage on one building, a first mortgage for the second building, and a second mortgage for the second building. All three mortgages were held by First National. Its second mortgage ranked pari passu with its first mortgage.

Despite being required to give notice to First National under its mortgages, Golden Dragon subsequently placed a second mortgage on the first building without giving any notice. This new subsequent mortgage was held by Liahona.

Golden Dragon took out a second mortgage to get access to funds to use to renovate the apartments. However, Golden Dragon was unsuccessful in renovating the properties and became insolvent. As of December 2016, the Liahona second mortgage was in default and no further payments were made.

Liahona issued a notice of sale for the property of Golden Dragon and obtained a default judgment, and a judgment to take possession of the property.

As of June 2017, the First National mortgage charges on title were in default. Their mortgages included cross-default provisions, meaning that a default under one was deemed to be a default under all three First National mortgages. On August 17, 2017, First National made a formal demand that Golden Dragon pays the arrears and cure the non-monetary defaults and delivered notices of intention to enforce security pursuant to s. 244 of the Bankruptcy and Insolvency Act. Golden Dragon was unable to cure the borrower defaults and the court appointed the interim receiver after considering the circumstances of default.

first mortgagee
first mortgagee

The interim receiver ensured the properties were stable and increased the rental income. Rather than the first mortgagee or second mortgagee selling the properties by way of a power of sale, the court then expanded the interim receiver’s role to marketing and selling the apartment buildings. The interim receiver requested the court’s approval for the sale of the properties. The court found that the approval conditions were met, the sale was approved, and the properties were sold.

 

What can the first mortgagee claim if the mortgaged properties are sold?

The trial judge’s ruling found that the First National registered mortgages did not give it the right to claim the disputed “yield maintenance penalties,” which included an acceleration of all amounts due until the end of the mortgage terms.

Although the mortgages contained a provision allowing Golden Dragon to redeem the mortgages by paying a “yield maintenance” penalty calculated according to a formula set out in the provision, this privilege only applied if Golden Dragon was not in default under the terms of the mortgages. Since Golden Dragon was in default, it no longer enjoyed the privilege of prepayment of the mortgages. As a result, First National was not entitled to charge a yield maintenance penalty.

Despite this, the trial judge decided that First National was entitled to the amounts it claimed as a condition of payout:

  • under a common law rule that a mortgagee is entitled to all accelerated interest owing to the date of maturity when a closed mortgage is vested off the title before the end of the term; or
  • in accordance with an implied contractual entitlement to interest on the unpaid balance, the trial judge read into the First National mortgages.

Liahona submitted to the trial judge that the first mortgagee was not entitled to accelerated interest under their mortgages unless there was a specific clause in the mortgage authorizing such a claim. The trial judge rejected that argument and concluded that the accelerated interest under the mortgage became due when the registered mortgages were terminated prematurely upon being vested off title pursuant to the court-supervised sale.

What the Court of Appeal for Ontario decided

Liahona and Golden Dragon appealed the trial judge’s decision in interpreting the basics of mortgagee clauses for the following issues:

  • Whether the trial judge was correct in finding that the first mortgagee claim for priority for the accelerated interest under its mortgages under common law.
  • If the trial judge erred by implying a contractual term in the First National mortgages that didn’t exist.

The Court of Appeal for Ontario differed from the lower court’s ruling concerning the mortgagee clause relating to accelerated interest. The appellate court noted that the lower court misapplied the law as well not taking into consideration the full scope of the contracts. It further stated that a loan agreement is interpreted according to standard principles of contract interpretation.

The Court of Appeal for Ontario vacated the trial judge’s ruling. Even though First National objected, the appellate court decided that the first mortgagee was only entitled to the principal and interest, plus costs up to the day of the sale of the properties that the court authorized.

First mortgagee: The main point

The main point of this court case is that if you negotiate and bargain for a certain set of contractual terms set out in writing, the court will look at the rights and responsibilities of the parties to the contract. This includes any mortgagee clause it bargained for.

I hope you enjoyed this Brandon’s Blog on what this first mortgagee rights and what it was entitled to from the court-supervised sale of the properties. Are you or your company in need of financial restructuring? Are you or your company insolvent due to a contract you may have entered into? Can you or your business not able to afford to make all your necessary debt payments, including mortgage payments?

The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too much personal debt. You are worried because you are facing significant financial challenges.

It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. We know that we can help you the way we take the load off of your shoulders and devise a debt settlement plan.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We can tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. If any of this sounds familiar to you and you’re serious about finding a solution, let us know.

Call us now for a no-cost initial consultation.

first mortgagee
first mortgagee

 

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