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Supreme Court Decision – Will it Lead to Changes in Bankruptcy Law in Canada

by Doug Hoyes

On July 14, 2011 the Supreme Court of Canada released its decision in the case of Schreyer v. Schreyer. Why are we discussing a Supreme Court of Canada decision in a blog about bankruptcy in Canada? Because this case confirms a long held principle of bankruptcy law, but it also forces us to consider whether changes to bankruptcy law are required.

You can read the entire case on the Supreme Court of Canada’s website, but here’s a simple summary:

Doug Hoyes, Bankruptcy Trustee

Doug Hoyes, Bankruptcy Trustee

Mr. and Mrs. Schreyer divorced in 1999, and as is standard procedure, their assets were to be divided amongst them. Mr. Schreyer was to make an equalization payment to Mrs. Schreyer of about $41,000.

Where both parties own assets, and one of the parties will be retaining one of the assets, that party pays the other their share.

For example, if the wife’s only asset are shares in a business worth $100,000, and the husband has no assets, upon divorce the wife may be required to make an equalization payment of $50,000 to the husband. By doing so, after the divorce, they both end up with $50,000 in assets, so they each have half of the total assets they had while married.

In the case of Schreyer v. Schreyer the asset was a family farm, and Mr. Schreyer was ordered to pay $41,000 as an equalization payment to his wife.

However, before that payment was made, Mr. Schreyer declared bankruptcy. Mrs. Schreyer therefore became a creditor of his in his bankruptcy. Under Manitoba’s The Judgments Act, the family farm was exempt from execution by creditors.  That meant that Mr. Schreyer kept the farm when he went bankrupt, and his wife got nothing.

(It should be noted that the law is different in each province. For example, in Ontario there is no exemption for real estate, so in Ontario if the bankrupt owned a farm worth $80,000, the trustee may sell the farm and distribute the proceeds to the creditors, so had this happened in Ontario, Mr. Schreyer would have lost the farm when he went bankrupt, or he would have been required to pay into his estate the value of the farm).

Is this fair?

According to bankruptcy law, your debts are extinguished when you go bankrupt, so on that basis yes, it’s fair.

However, the Bankruptcy & Insolvency Act does give special treatment for child support, in section 178 (1) (c), which states that the following debt or obligation is not discharged in a bankruptcy:

any debt or liability arising under a judicial decision establishing affiliation or respecting support or maintenance, or under an agreement for maintenance and support of a spouse, former spouse, former common-law partner or child living apart from the bankrupt;

In other words, if you go bankrupt, you are still required to pay child and spousal support.

So, why, if you file bankruptcy in Canada, are you not required to make equalization payments to your former spouse? That’s a good question, and I suspect that the law will be changed to close this loophole; it’s certainly received a lot of press since the decision was released, including these articles:

Parliament moves slowly, so we shall see how long it takes for the government to act.  Regardless of their speed, I believe that it is time for the government to change the rules regarding divorce and bankruptcy.

Posted on Monday, July 18th, 2011
Filed under: bankruptcy Canada andbankruptcy reform
posted by Doug Hoyes @ 3:22 am 1 Comment

Why are More Seniors Filing Bankruptcy in Canada?

by Doug Hoyes

This week the Office of the Superintendent of Bankruptcy released statistics stating that an increasing number of senior citizens are filing for bankruptcy in Canada. Here’s a quote from the report:

From 1989 to 2009, the proportion of insolvent consumers between 18 and 34 years of age has fallen steadily (from 12.9 percent to 4.4 percent among those 18 to 24 years of age and 43.0 percent to 22.3 percent among those 25 to 34 years of age). Over the same period, the proportion of insolvent consumers among older age groups has increased (from 11.3 percent to 24.7 percent among those 45 to 54 years of age and among those 55 years of age and above the proportion has more than quadrupled from 4.6 percent to 20.6 percent).

So why are more seniors declaring personal bankruptcy?

Doug Hoyes, Bankruptcy Trustee

Doug Hoyes, Bankruptcy Trustee

As a licensed bankruptcy trustee helping people file bankruptcy in Ontario, I have a number of thoughts on why the percentage of seniors filing bankruptcy is increasing.

First, as every resident of Canada is aware, we are in a recession. A recession hurts everyone. It’s possible that in the current economic downturn more seniors have lost their jobs, or had their incomes reduced, leading to serious financial problems. Often when a company needs to cut back, they cut their highest paid workers, which often are their older workers.

Second, a growing number of Canadians in their 40′s, 50′s and 60′s are carrying mortgages and other debts into retirement. Twenty or thirty years ago Canadians typically retired with little or no debt; they paid off their mortgage before they retired. That was possible because by the age of 65 most Canadians were able to pay off their debts.

However, today, it’s not uncommon to be laid off while you are still in your 40′s or 50′s, and if you are unable to find a similarly well paying job, you may be forced into early retirement before you are able to pay off your debts. That’s why it’s increasingly important to keep your debts as low as possible, in the event your job situation unexpectedly changes.

Third, many seniors assumed that their house or other real estate would be their “retirement fund.” They assumed that when their children were grown and they themselves retired they would sell their house and move to a smaller house, pocketing the difference. Unfortunately with the weak real estate market over the last two years house prices in many areas of Canada have declined, so seniors cannot sell their house for as much as they had hoped.

Finally, I meet with a significant number of seniors who were good money managers, and had little or no debt for most of their lives, but then they go into debt to help their adult children. If you are 60 years old with no debt and a paid off house, and your 30 year old son or daughter loses their job, and they have a young family to support, what do you do? Many parents help their children, and often they help them by re-mortgaging their house, or getting a line of credit. If your child is not able to pay you back, the senior, on a reduced income, is left with more debt than they can handle.

Does this mean you shouldn’t help your children or other friends and family when they have financial problems? No, if you want to help, you should, but it’s important to help with cash, and not to incur excessive debt to help others.

What’s the solution?

First, we should all strive to have little or no debt. You may not have a lot of savings when you retire, but if you retire with no debt you will probably be able to survive with your company and government pensions.

Second, seniors should be careful to only help others within their means; don’t risk bankruptcy for yourself by borrowing excessively to help others.

If you have more debt than you can handle, check out our free, interactive debt options calculator that calculates your different debt management options. It may be possible to work through your debts on your own, or perhaps file a consumer proposal to avoid bankruptcy, but professional advice is wise to fully explore your options.

Posted on Monday, October 18th, 2010
Filed under: Bankruptcy Alternatives andbankruptcy Canada andConsumer Proposal
posted by Doug Hoyes @ 5:34 am No Comments

Who Should Administer Consumer Proposals: The Discussion Continues

by Doug Hoyes

On this Trustees Talk site we attempt to comment on items in the news, and items of interest to Canadians. As we have discussed previously, in June 2010, the Office of the Superintendent of Bankruptcy (OSB) initiated a Review of the Trustee Licensing Regulatory Framework . One of the items up for discussion was whether or not credit counsellors should be permitted to act as consumer proposal administrators.

On June 28 we published the thoughts of a trustee from Edmonton, Barton Goth, who asked the question: Consumer Proposals: A need for more administrators or a slippery slope? He concluded that the expertise of a licensed trustee is very valuable to anyone in financial trouble. While credit counsellors offer debt management plans, a consumer proposal is a legally binding, court approved procedure, so a higher standard of care is required.

We have reported on Debt Management Plans, and we encourage everyone to “run the numbers” to determine if you are using the proper solution to deal with your debt problems.

Ted Michalos, a licensed trustee from Ontario has concluded that Licensed Bankruptcy Trustees are most qualified to administer consumer proposals, again due to the expertise required.

I have also provided my thoughts on whether or not credit counsellors should administer consumer proposals.

The Canadian Association of Insolvency and Restructuring Professionals has now produced their thoughts on the issue, in a 108 page report that comments on all aspects of the proposed new licensing framework. They have specifically commented on the Canadian Association of Credit Counselling Services (CACCS) submission, and they have responded as follows:

CACCS mistakenly refers to the trustee community operating as a monopoly; with 1,017 practicing trustees in Canada competing for work, nothing could be further from the truth. In essence the position of CACCS is analogous to a position that dentists have a monopoly over fixing teeth and surgeons have a monopoly over performing surgery, again these are not monopolies, but regulated (or self-regulated) professions, with a goal to have the most qualified professional provide the service to achieve the most desirable and predictable result. The dentist, surgeon and trustee all fit into this category;

CACCS mistakenly believes there is an access constraint within the consumer debtor market that fundamentally must be addressed by adding capacity. The issue, however, is not capacity, but quality; currently only trustees embody the depth of knowledge, breadth of experience and professional standards to meet the needs of consumer debtors within a Court-supervised restructuring process. As for capacity, we are dumbfounded by this CACCS assertion given that the economy has just experienced the worst economic downturn since the Depression and yet no consumer debtor went without access to a trustee to meet their needs through the provision of quality services;

CACCS asserts that its members are uniquely qualified to service the consumer debtor market. The very principle of a profession is that the individuals within it maintain a distinct expertise that allows them to perform a service to benefit an individual or entity—a service that is superior to that offered by all other providers. In the case of consumer debtors, it is trustees who have proven their ability based on depth of knowledge, breadth of experience, adherence to strict standards and oversight and ability to deliver a complete suite of services that differentiates them as the market leader in servicing the needs of financially distressed Canadians;

CACCS asserts that Debt Management Plans (DMP) and consumer proposals have many of the same characteristics. The truth is that DMP and consumer proposals are more dissimilar than similar. DMP are not Court-supervised restructuring proceedings; they do not require an administrator to balance the competing interests of the stakeholders; they do not require the administrator to opine on the reasonability of the Plan; they do not require an assessment of realization under alternative proceedings; they do not require consideration of all aspects of the Bankruptcy and Insolvency Act, provincial legislation, jurisprudence and, most importantly, professional judgment; and they are not subject to regulatory oversight by the OSB and supervision of the Court; nor are the administrators subject to the strict standards of professional practice, code of conduct and by-laws of CAIRP. Are they the same – not really!

CACCS believes that the consumer debtor is a client for the purpose of a consumer proposal, in which CACCS articulates a role for negotiation with creditors based on a client’s ability to repay their debt, according to their situation and the best of their ability. Unfortunately, CACCS fundamentally misunderstands the role of an Officer of the Court, a trustee, and the conceptual requirements of the BIA, that while preserving the principles of rehabilitation and a fresh start for the consumer debtor, must also respect the responsibility of the consumer debtor to his or her creditors. The role of the trustee is complex, as it requires a balancing of the competing interests to achieve equity through the facilitation of an arrangement between a consumer debtor and his or her creditors, having regard to the personal circumstances of the consumer debtor. Is the fundamental mindshift easy? No. Is it a requirement? Absolutely.

CACCS asserts that, by granting credit counsellors status as administrators of consumer proposals, the current referral system between credit counsellors and trustees will be unnecessary in the future. CACCS asserts that such a referral stream is “problematic and very inefficient while presenting a major disservice to the Client. Specifically, once the Client’s trust has been gained and the clinical relationship has formed”. CAIRP asserts that the referral system remains a necessary and important aspect of the insolvency process, irrespective of the status of creditor counsellors to provide consumer proposal services. The assertion lacks situational recognition that consumer proposals are not the answer for all financially distressed individuals; it fails to recognize that the seeds of success are not embedded within every consumer proposal filed; it fails to recognize that client referrals from trustees to credit counsellors should be equally common based on an assessment of an individual’s personal circumstances; it fails to recognize that specialized counselling may be required to meet a consumer debtor’s needs, counselling beyond the ability of a trustee or a credit counsellor. CAIRP is concerned, based on the assertion of CACCS, that its members will see the consumer proposal legislation as the sole alternative to a DMP. Is the real risk referrals? No, it is practitioner perception; and

CACCS presents survey results that are at best self-serving, at worst libelous. The survey makes bold statements pertaining to trustees failing to meet their statutory duties in performing adequate assessments (in accordance with Directive 6R3). The survey presents a tainted picture, but lacks transparency and substantive and objective correlation between the methodology and results; it lacks any source reference or verifiable basis on which to conclude whether any comments are substantively supportable. It is the position of CAIRP that the entirety of the survey results is inappropriate for a public consultation by the OSB as to the Licensing framework. CAIRP will in the coming weeks hold CACCS to account.

Wow. Sounds like a war of words between CAIRP (the trustees) and CACCS (the credit counsellors).

I have already provided my thoughts on this issue, so I will not belabor the point further here, other than to say this: if you are experiencing financial trouble, who do you want to assist you? If you want a credit counsellor working for a not for profit credit counselling agency, then see a credit counsellor. If you want a consumer proposal administrator or a bankruptcy trustee, go see them. You have the choice.

I work with many excellent credit counsellors, and I regularly refer people to credit counsellors when I believe they are best able to provide a solution. In many cases a credit counsellor can provide a solution; in other cases a bankruptcy trustee’s services are required. I pride myself on always looking out for the best interests of the people who seek my help. If all advisors (trustees, credit counsellors, lawyers, accountants) focus on providing advice that is in the best interests of the person in debt, everyone will get the professional assistance they deserve.

Posted on Monday, September 13th, 2010
Filed under: bankruptcy reform andConsumer Proposal
posted by Doug Hoyes @ 6:52 am No Comments

Debt Settlement Plans

by Ted Michalos

I have written quite a few pieces were I am critical of the “debt consulting” industry and persons presenting themselves as credit counsellors when they have little or no formal education or credentials. It’s not that I begrudge any of these people a livelihood – I just wish they’d pick a career that doesn’t involve gouging an already desperate portion of the population.

Ted Michalos, Bankruptcy Trustee

Ted Michalos, Bankruptcy Trustee

If you are unfamiliar with the term debt settlement it generally means some sort of negotiated deal to repay a portion of your debt. The service is real – most creditors will accept a partial repayment, particularly in a lump sum, once your debt has gone into collections. The trick here is one of timing. The debt settlement companies charge an upfront fee plus a percentage of the settled debt. They pay themselves first before they actually settle with your creditors and they can’t settle with your creditors until they have “saved up” enough of your payments to offer a deal.

That’s a bit confusing, so an example might help. Let’s say you owe $50,000 on your credit cards. The debt settlement company tells you they can settle with your creditors for $25,000. The upfront fee is $2,000 and they’ll charge another 20% of the settled amount – $5,000. Let’s say you agree to $1,000 a month. So the first 7 months will go to pay them and then your payments will go into a savings account until they accumulate enough to offer one of your creditors the 50% deal. During this time you have no legal protection and in many cases the creditors simply proceed to collections and then take legal action against you. To stop the legal action you end up filing a consumer proposal or perhaps bankruptcy (of course you won’t get any of the money back from the debt settlement company).

An alternative might be a consumer proposal whereby you offer the same settlement (50%), but it would play out quite differently. A consumer proposal can be spread over five years which would give you a much lower payment. Just to keep the comparison similar though, we’ll say you can pay the $1,000 per month. Your proposal will run for 25 months (the debt settlement plan would run for 32 assuming the creditors don’t cut it short). By law, the fees for the trustee are taken directly from the settlement; they are not added on top. In addition, after the preparation fee has been paid, $1,500, a trustee only receives payment when the creditors are paid – not in advance. Further, all of the creditors receive payments at the same time – you don’t settle with one, then save up and settle with the next. Most importantly, if you file a proposal you have legal protection from wage garnishees, collection agents and other legal actions.

If you’ve responded to a debt settlement ad and/or are actively considering this solution for your financial difficulties please make certain you understand the process that the company you will be dealing with is going to follow. As long as you understand the risks and the pitfalls of a debt settlement plan then you can add itn to the list of options to deal with your debts. Most people don’t take the time to “read the fine print” and as such go into these plans with high expectations only to have their creditors continue to pursue them, including collection actions and wage garnishees.

Be careful and consider all of your options before you sign.

Posted on Monday, August 16th, 2010
Filed under: Bankruptcy Alternatives andDebt Options
posted by Ted Michalos @ 4:08 am No Comments

Consumer Proposal: One of the most important financial tools available to Canadians

by Barton Goth

The consumer proposal is probably the least known of the processes to deal with overwhelming debt, but it is the mechanism that has the greatest capacity for good given our current economic environment. Let’s face it, right now the number one biggest risk to the Canadian economy isn’t the high dollar, it isn’t our level of productivity, it isn’t the strength of our largest trading partner – it is the state of our personal finances.

Barton Goth, Bankruptcy Trustee

After that bold statement I must insert my disclosure. My name is Barton Goth, I am a licensed Trustee in Bankruptcy and Consumer Proposal Administrator here in Edmonton. So I definitely have a bias. However, this statement is not made based solely on observations made in my daily practice, but based on the current state of our overall economy. Let us review:

• During the 2000s, the average Canadian’s asset growth was less than half the pace of the 1990’s and the growth in debt was twice as rapid (Roger Suave, The Current State of Family Finances 2009)

• In recent years household debt has surged three time faster than income and now stands at a record high of more than $1-trillion (Canada’s Brewing Debt Storm, The Globe and Mail Apr. 16, 2010, by Paul Waldie and Steve Ladurantaye)

• The average Canadian owes about $1.47 for every dollar of disposable income (Certified General Accountants Association of Canada, CIBC Economics, National Bank economics and Statistics Canada)

• For many years, debt was rising about 2.5 percentage points faster per year than income, this gap had widened to 4 to 5 percentage points by 2005 and rising by approximately 9 per cent in 2008. (Defusing Canada’s debt bomb, Globe and Mail Apr. 17, 2010, by Don Drummond, Chief economist, TD Bank Financial Group)

As a result of these alarming trends I think the traditional focus of our finances is going to have to move away from the saving and investment side of things, and toward dealing with the debt that more and more people are becoming burdened by. This is why a consumer proposal currently is one of the most important financial tools available to Canadian families. It is a tool that gives Canadians the ability to regain control of their finances before they are forced to consider a bankruptcy. As a result, I predict that we will continue to see a major increase in the number of proposals filed as people begin to realize the gravity of their financial position and begin to investigate what can been done to resolve these difficulties.

For those of you unfamiliar with consumer proposals, you are not alone. The idea of a consumer proposal is relatively new (first introduced into the Canadian insolvency legislation in 1992), but has provided a way for many Canadians over the years with a middle of the road option that contains many of the advantages associated with a bankruptcy, while avoiding some of the more significant disadvantages. A consumer proposal is especially advantageous for those people who cannot afford to pay their debts in full but have enough money coming in each month that realistically they should not be forced into the filing of a bankruptcy, a reality that an increasing number of Canadians are faced with each day.

The consumer proposal is one of the options available through the Bankruptcy and Insolvency Act that provides a court sanctioned way to negotiate a settlement with your unsecured creditors (i.e. credit cards, personal loans, taxes etc.). There are many advantages to filing a consumer proposal. For instance, in a proposal you do not automatically lose any of your assets as you would in a bankruptcy. You are able to have a reduced impact on your credit over the long term than filing bankruptcy, and most importantly, you are able to bring the payments on your existing debt to a manageable level that will fit in your budget. At the same time, because the consumer proposal is a court sanctioned settlement, you only need a majority of your creditors to cooperate with the proposal and you benefit from court protection which mandates that all your unsecured creditors must participate in the proposal and can no longer collect on or charge any interest on these debts.

At a time when the average family is faced with waning savings, growing debt, aggressive lending practices and an uncertain economy, the consumer proposal may prove to be one of the most needed of all financial tools, and one that will assist many families in an effort to regain control of their finances and truly put their house in order.

If your one of the many Canadians who are currently struggling with your finances I have one word of advice, act now and schedule a time to review your finances with a consumer proposal administrator . If you are proactive, rather than reactive, you will be able to catch things early. The earlier you recognize the difficulties you face and the earlier you act, the more likely you will be able to qualify to file a consumer proposals and the quicker you will be able to regain control of your finances.

Posted on Monday, August 2nd, 2010
Filed under: Consumer Proposal andDebt Options
posted by Barton Goth @ 5:26 am No Comments

Licensed Trustees in Canada – The Best Solution

by Ted Michalos

Last week Douglas Hoyes provided his thoughts on whether or not Credit Counsellors should be licensed to administer consumer proposals in Canada. Not surprisingly, I agree with my business partner’s conclusions, although my reasoning is somewhat different.

Ted Michalos, Bankruptcy Trustee

Ted Michalos, Bankruptcy Trustee

The Office of the Superintendent of Bankruptcy (“OSB”) is currently conducting a policy review. One topic they are considering is whether or not they should implement specialized licenses for bankruptcy trustees. Currently all bankruptcy trustees in Canada must go through a very rigorous educational program. Most trustees have a university degree, many have an accounting background, and all are required to pass five levels of courses (with each level taking approximately one year to complete), culminating with a final one and a half hour oral exam. All trustees must have a breadth of knowledge, and must understand both personal and commercial insolvency issues. The OSB is now considering graduated licenses: consumer insolvency only, commercial only, and proposal administrators. Frankly, I’m concerned that these potential changes are being actively considered.

We operate a consumer bankruptcy practice in central and southwestern Ontario. You might think that we would be pleased to see consumer licenses and proposal administrator licenses issued as these would cover 90% of our practice. We’re not – our concern focuses on the fact that there are very few sections of the Bankruptcy and Insolvency Act (“Act”) that persons operating our type of practice do not need to “know”.

I will concede that there are not many personal bankruptcy estates that have to deal with complicated commercial issues like commercial leases, or 30 day goods, or the Wage Earner Protection Program. Having made that concession, these issues do arise and the trustee on the file needs to be knowledgeable and experienced enough to deal with the “unexpected”. If the OSB intends to issue limited scope licenses then a policy needs to be developed to deal with estates that develop into types that the specialized trustee has not been licensed to handle. It is not difficult to imagine an estate that starts out quite simple and straightforward that somehow transforms itself into a highly technical, highly complicated file. A self employed person, or someone involved in a legal dispute prior to filing are two possible candidates for this type of transition.

Further, the assessment requirements currently set out in the Act require the trustee performing the assessment to present a debtor with all of their alternatives. If a person with a specialized license doesn’t’t have a good working knowledge of all aspects of the Act they will not be able to comply with this requirement. If they cannot comply with the assessment requirement debtors may be counseled into the “wrong” solution for them.

My concerns thus far seem to deal with personal insolvencies – what about issuing limited commercial licenses? In my experience the level of general knowledge about the Act is higher for those trustees working in the personal insolvency area. This is based on my experience hiring and training trustees and students with commercial and consumer backgrounds. The consumer practice requires a much broader understanding of the Act. The law is the same for both types of files – the difference seems to be on the volume of estates. A consumer practice is often a volume business – it is therefore more likely you will encounter more unusual situations. A commercial file is almost always larger and more complicated, but in the most complicated commercial files a trustee is not working alone – they have other professionals, including other trustees and lawyers, that they can call on for assistance.

I would not object to specializations once a trustee license has been granted. In other words, if after someone has demonstrated the knowledge and skills to be licensed as a trustee and they decide to limit their practice to certain types of insolvencies, they may do so. Of course they may already do so simply be restricting the types of files they accept.

If the purpose of these specialized licenses is to make it easier to obtain a trustee license then I have to question the wisdom of such a course. At a time when the world is becoming more complicated, why would you simplify the requirements to deal with complicated financial situations? If the OSB is anticipating a shortage of trustees then the correct solution is not to make it easier to become a trustee, the correct solution is to make it more attractive to obtain a license. The market will then correct for any shortfall.

In short, I don’t support the idea of specialized licenses, in particular if the goal is simply to create more trustees. There are better ways to achieve that goal, if that is the true objective of this policy.

If simplified, specialized licenses were to be created, my top ten predictions for what will happen if specialized consumer proposal licenses are issued by the OSB are as follows:

1) The number of persons applying for these specialized licenses will exceed the number of persons pursuing a full trustee in bankruptcy licence (why pursue a full licence when you can obtain a licence to provide the most lucrative services that trustees provide).

2) Over time the number of fully licensed trustees will diminish to the point that there will be serious access to service issues for anyone requiring the services of a full trustee.

3) Dollars spent on advertising “debt relief without filing bankruptcy” will increase dramatically. The total number of insolvency filings will increase. Initially the number of consumer proposal filings will increase, but within a few years bankruptcy filings (assuming people can find a full trustee) will also increase as proposals fail.

4) Credit losses will increase – persons that might not previously have considered a proposal will be enticed by the less emotionally charged services of a proposal administrator as opposed to a trustee (there are in fact trustees now advertising themselves as proposal administrators for this very reason).

5) Abuses currently in evidence from non-regulated “debt consultants” will now become muddied with these non-trustee proposal providers.

6) Many debt consultants may attempt to obtain these specialized licenses not fully a appreciating (or intending to provide) the level of service and control that holding funds in trust requires.

7) Failures of these new limited service providers will erode the publics’ trust in the system – currently the insolvency industry is not well known or understood; in the future these failures will display the industry in a less than favorable light.

8) The not for profits currently providing debt management solutions will either fold or become proposal administrators, effectively removing one form of debt relief from the market.

9) Unless specifically prohibited, law firms may move into this service area just as they have moved into collection activities, further confusing the public.

10) OSB resources will not be sufficient to properly monitor and control the persons and firms providing these proposal only services.

In summary, I strongly believe that debtors experiencing debt problems should have access to advice from well educated and highly experienced professionals. Would you rather see a doctor that went to medical school for one year, or a doctor with five years of additional training and many more years of practical experience? Personally, I would prefer to deal with the most knowledgeable professional possible, and so I believe that granting fully qualified licenses to trustees is the best interests of the public.

Posted on Monday, June 21st, 2010
Filed under: bankruptcy Canada andbankruptcy reform andConsumer Proposal
posted by Ted Michalos @ 5:38 am No Comments

Avoid Bankruptcy in Canada and Survive the “False Economy”

by bgandossi

Bruce Gandossi, Bankruptcy Trustee

Bruce Gandossi, Bankruptcy Trustee

My name is Bruce Gandossi. I’m a chartered accountant and licensed trustee in bankruptcy with Sands & Associates in British Columbia. A few months ago I wrote an article asking the question: Will the Vancouver 2010 Olympics Impact Personal Bankruptcy Rates? Here’s what I said a few months before the Olympics about bankruptcy in Canada:

We may have a mini boom during the Olympics, as all of our hotels and restaurants will be full with visitors from around the world. But after that, incomes won’t be rising, and house prices won’t be rising, so debtors won’t be able to rely on overtime or a rising real estate market to deal with their debts.

As predicted, Vancouver residents were very busy in the months leading up to and including the Olympics. I live in Vancouver, and I work from my Vancouver bankruptcy office, and I can tell you from first hand experience that the Olympics were fantastic. Like many other Vancouver residents, I had the pleasure of experiencing the Olympics first hand. I went up to Whistler the week before the Olympics to see the preparations for skiing. I attended the opening ceremonies, and they were unbelievable. I watched the speed skating on the big oval in Richmond (my firm also has a bankruptcy office in Richmond), and I saw short track and hockey games in Vancouver.

Are we suffering a “hangover” from the Olympics? I’m happy to report that no, we Vancouver residents are not suffering a large let down. The Olympics were great, and we were happy to be a part of it.

However, there is no doubt that the Olympic jobs are now gone, and we are no longer living in the boom times created by the Olympics.  Obviously the end of the job boom can reduce income, and increase the risk of personal bankruptcy in Canada.

I’m not an economist, but I do meet with regular, hard-working Canadians every day, and based on what they tell me I worry that many are living in a “false economy.” The Olympics certainly helped us here in Vancouver, but all across Canada, and the world, government stimulus money has also helped bolster the economy, and keep our economy from sliding into an economic depression.

Government economic stimulus is somewhat like credit card debt. I use the credit card today to buy what I want, and I feel great. But, at some point in the future, I will need to repay what I borrowed, and that’s the “time of reckoning” that is not yet here. I hope the economy continues to recover, but as a trustee in bankruptcy I’m also a realist. We hope for the best, but prepare for the worst.

There is some great news when it comes to dealing with debt. Over the last eight months I have personally witnessed an increasing number of Vancouver residents choosing to avoid filing bankruptcy in Canada to deal with their debts; instead, they are choosing to file a consumer proposal. Recent changes in the rules make filing a consumer proposal a more attractive option for many Canadians. In a proposal I help you negotiate a settlement with your creditors, where you pay perhaps a third or a half of the total amount you owe over a three to five year period, and your creditors agree to write off the rest. If the creditors accept your proposal, you avoid filing bankruptcy in Canada. I tell people they need three things going for them to file a proposal:

  1. Age
  2. Health
  3. Income

First, you need to be old enough to understand a proposal, and young enough to have the time to make the payments over the next three to five years.

Second, your health should be sufficient so that you know you will be working for the next three to five years so that you can make your proposal payments.

Finally, to make payments you need a stable source of income. If you expect to get laid off next month, a proposal may not be your best option.

As my fellow residents of Vancouver look back fondly on our Olympic experience, I encourage everyone to look ahead to their future, and if you find you have more debt than you can handle, consider a consumer proposal as an option to deal with your debts. We will meet with all debtors initially without cost to assist you in the assessment of your options. Please contact a trustee today for your free initial consultation, and find out what options will work best to help you deal with your debt.

Posted on Monday, May 24th, 2010
Filed under: Bankruptcy Alternatives andbankruptcy Canada andConsumer Proposal andDebt Options
posted by bgandossi @ 6:05 am No Comments

Consumer Proposal: Will My Creditors Accept My Proposal?

by Doug Hoyes

As we have discussed many time on the Bankruptcy Canada Trustee Talk blog, a consumer proposal is a great alternative to filing bankruptcy in Canada. The concept is simple: instead of going bankrupt, you offer to pay a portion of the amount owing to your creditors, and if they accept you avoid bankruptcy.

Douglas Hoyes, Canada Bankruptcy Trustee

Douglas Hoyes, Bankruptcy Trustee

But why would a creditor accept a consumer proposal? If you owe $50,000, why would they accept a deal where you repay perhaps only $20,000?

There are a number of reasons why a creditor would accept a consumer proposal:

First, and most obviously, a creditor would accept a proposal if they expect to generate more money in a proposal than they would generate in a bankruptcy. Obviously if they were going to get less money in a proposal, they would not accept it. Here’s a simple example:

Joe has $50,000 in debt. He supports his wife and three children, and after paying his normal living expenses like rent, utilities, food, transportation and other costs Joe only has $500 per month available to repay his debts. The minimum payments on his credit cards and other debts are $1,300 per month, so he is falling behind.

Joe met with a trustee, and the trustee calculated that based on Joe’s income and family size he would be required to pay $600 per month in surplus income payments, and his bankruptcy would last for 21 months, so Joe would pay approximately $12,600 during his bankruptcy. He’s worried that he won’t be able to afford the $600 per month in payments.

Joe’s trustee suggest an alternative: instead of going bankrupt, Joe could offer a consumer proposal of $300 per month for five years, or $18,000 in total.

Obviously Joe is paying $18,000 in a proposal, instead of $12,600 in a bankruptcy, but Joe is happy with that plan. He wants to avoid bankruptcy, and he wants to repay as much as he can to his creditors, and for him, $300 per month in a consumer proposal is much more manageable than $600 per month in a bankruptcy. Joe decides to file a proposal.

In this example the creditors are likely to accept the proposal because they are getting more in the proposal than they would get under any other alternative.

Whether or not the creditors actually accept the proposal will depend on a number of factors, including Joe’s prior history with the creditor, and the individual criteria that each creditor uses to decide on how they will vote on a proposal. A consumer proposal administrator can explain the likely chances of success for you at your no charge initial consultation.

Second, most creditors want to be seen as “helping the little guy.” Big banks and credit card companies in Canada don’t want to get a reputation for refusing all reasonable settlement arrangements, so if a consumer proposal is reasonable, most of them will accept it.

Finally, creditors want certainty. In a bankruptcy the amount of money they will realize will increase or decrease depending on the bankrupt’s income during the process. In a consumer proposal, once the proposal is approved, the payment amounts are fixed. There is certainty. Each creditor knows what they will get. That’s another example of how a proposal is a “win-win” solution. You have certainty because you know what you are required to pay each month, and your creditor knows what they will be receiving. There are no surprises.

Is a consumer proposal the right solution for you? The answer depends on the size of your debts, who you owe the money to, what you own, and what you can afford to pay each month. Try our free debt options calculator to review your options, and then contact a trustee to arrange for a free, no obligation initial consultation.

Posted on Monday, May 3rd, 2010
Filed under: Consumer Proposal
posted by Doug Hoyes @ 5:29 am No Comments

Consumer Proposal: The Best Way to Avoid Bankruptcy in Canada

by Doug Hoyes

Doug Hoyes, Bankruptcy Trustee

Doug Hoyes, Bankruptcy Trustee

This is a website devoted to discussing all aspects of bankruptcy in Canada, but today we will discuss the opposite of bankruptcy. Today I present my Top Three Ways to Avoid Bankruptcy in Canada.

Why would I, a bankruptcy trustee, want you to avoid bankruptcy? Because I strongly believe that bankruptcy should be a last resort, a strategy to be used only after all all other options have been evaluated and eliminated. I take every opportunity to encourage all Canadians to explore all financial options before making a decision. This week I was interviewed by the Globe and Mail for a story on How to Avoid Filing for Bankruptcy, and again I made the comment that bankruptcy is a last resort.

Why should you consider all options? Because there are many scams and unscrupulous people that will tell you they can help you avoid bankruptcy, but many times they will simply just take your money. You can read more in our article on Debt Management and Debt Settlement Plans: Scams, or a Good Alternative to Bankruptcy in Canada?

So what are my Top Three Strategies for Avoiding Bankruptcy in Canada?

3 Get help from family or friends. This is perhaps the most over-looked strategy. I have had hundreds of people over the years tell me that they are so embarrassed about their financial situation that they are afraid to discuss it with their family or friends. I’m not suggesting you should tell everyone you know that you are having financial trouble, but reaching out to your family or closest friends is often a good solution. Many times I have encouraged people, particularly younger people, to talk to their parents. While their parents may be disappointed that they are in financial trouble, they will often also try to work with them to solve their problems.

I’m not suggesting that you should borrow money from family or friends. Borrowing money is a good way to lose friends, and an even better way to make Christmas dinner very uncomfortable. What I am suggesting is that you should ask for advice from your family and close friends.

If you don’t ask, you don’t know how people can help. Perhaps a relative can help you find a better job, and with more income you may be able to repay your debts on your own. Perhaps a friend has an extra room at their house; you could rent a room and reduce your living expenses, which will free up cash to help you deal with your debts. Moving back in with your parents may not be fun, but as a temporary measure while you get back on your feet it may not be a bad solution.

Even if they can’t help you directly, getting some advice and empathy from a trusted family member may help you decide on your next steps.

2 My second best strategy for avoiding bankruptcy is to fix it yourself. In fact, this is the strategy used by the vast majority of Canadians who experience money problems. If friends and family can’t help, and if you don’t want to file bankruptcy, you need to take matters into your own hands, and attempt to fix the problems on your own. Here’s how:

Start by making a personal budget. Your budget should list all of your expenses each month. Some will be easy, like your rent and car insurance, because they are the same each month. To ensure that you don’t forget any, review your bank statements and credit card bills for the last few months to see where you spend your money. That should give you an accurate picture of your monthly spending. There are lots of on-line budget tools that can help, like Calendar Budget, an on-line tool where you enter your purchases each day, on a calendar. There are lots of budgeting tips on line as well.

Once you have a list of your expenses, review it. What can you cut? Can you reduce or eliminate your cable bill? Car pool to work? Make your own coffee? Once you see your expenses on a list, you can take steps to cut your expenses. That will tell you how much money you can free up to repay your debts faster.

Your debts are the final piece of the puzzle: Make a list of all of your debts, and arrange them from highest interest rate to lowest, so that the top of the list has your most expensive debts. Those are the debts you want to repay first.

Now, fix it yourself by making a plan to take whatever cash you can free up each month and apply that to your highest interest rate debts first. As one debt gets paid off, use that extra money to attack the principal on the next highest debt, and so on until all of your debts are repaid. If you can keep your expenses as low as possible, you may be able to repay all of your debts on your own.

1 But what if, even with drastically reducing your expenses, you still have more debts than you can repay on your own? You need outside help, and that brings me to my top strategy for avoiding bankruptcy in Canada: filing a consumer proposal. A consumer proposal is a legally binding deal that a consumer proposal administrator negotiates with your creditors. If it’s accepted, you make one monthly payment, your debts are dealt with, and you avoid bankruptcy.

A proposal will work best if you have a job, or a stable source of income, so that you can commit to monthly payments. The good news is that, in most cases, a consumer proposal can be negotiated for less that the full amount owing on your debts, and you avoid bankruptcy.

Which option is best for you? Or do you have no choice but to file bankruptcy? Start with some research: Read our articles on consumer proposals, or read questions posted on our anonymous question and answer blog about consumer proposals. You can even join our on-line support group that allows you to discuss consumer proposals and other options. These posts are real, and people just like you post both the pros and cons about proposals, so you can hear both sides of the story to help you make a decision.

My advice: talk to your family and friends, but also talk to an expert. A consumer proposal administrator and bankruptcy trustee will give you a free, no obligation initial consultation to help you make an informed decision, so do your research, contact a trustee today, and make an informed decision.

Posted on Monday, April 19th, 2010
Filed under: Bankruptcy Alternatives andbankruptcy Canada andConsumer Proposal andDebt Options
posted by Doug Hoyes @ 5:25 am 2 Comments

How do you know if you have found a good bankruptcy trustee?

by Doug Hoyes

You are in financial trouble, so you decide to visit a bankruptcy trustee. How do you know you have found a good trustee? How do you know they are giving you good advice? Here are some tips:

First, do some research. Read our article on choosing a bankruptcy trustee, and our suggestions for questions to ask a bankruptcy trustee. Talk to your friends and family members; if they’ve used the services of a trustee, see who they recommend. Or, use our list of recommended Canadian bankruptcy trustees to find a trustee in your area.

Second, make a list of all of the questions you have about filing bankruptcy in Canada, and about alternatives to bankruptcy. If will be easier to remember your questions if you write them out in advance. Also, make a list of all of your debts, prepare a monthly budget, and make a list of what you own (cars, houses, and investments) so that you can give the trustee complete information to evaluate your situation.

When you arrive for your initial consultation, give the trustee a very brief, one minute overview of your situation, and show them the list of your assets, debts, and your monthly budget. Then let them ask you questions to fill in any missing information.

Now for the most important part of your initial consultation. You now ask the trustee the one question that will allow you to determine whether or not you have found a good trustee. The question you ask is:

What are my options?

Obviously that’s the question you want answered, but it’s also the best way to determine whether or not the trustee is there to provide a complete review of all of your options, or if they are simply there to “sell” you a bankruptcy. The trustee should tell you that you have the following options:

  1. Do nothing. In some cases doing nothing is the correct option. If you have no assets, and if you are not working and have no wages that can be garnisheed, your best option may be to simply wait until you are working again.
  2. Work it out on your own. You may be able to cut your expenses, or increase your income, or get help from your family to repay your debts on your own. If you own assets, you may be able to sell them and use the money to repay your debts.
  3. Get a debt consolidation loan. If you still have good credit, a debt consolidation loan may allow you to combine all of your high interest debts, like credit cards, into one lower interest rate loan. With a lower interest rate more of your monthly payment goes towards repaying principal, so you can repay your debt faster.
  4. Debt Settlement. If your debts are old, it may be possible to propose a debt settlement with the creditor. For example, if you owe $5,000 on a credit card and you haven’t made any payments on it for a year, the credit card company may be willing to accept a settlement of, say, $2,500 in a lump sum payment. Of course this option only works if you have the cash to propose in a settlement.
  5. Debt Management Plan. A debt management plan is a service offered by not for profit credit counsellors. They will attempt to work out a plan where you repay your creditors in full, over a two to five year period, with a reduction or elimination of all future interest.
  6. Consumer proposal. In a consumer proposal you offer to repay some, but not necessarily all, of your debts, over up to a five year period.
  7. Bankruptcy. If none of the other options are possible, bankruptcy is the final option.

It’s possible that the trustee will not specifically mention each of these options when they meet with you. Some options may obviously not make sense given your situation. However, if the trustee only mentions one or two options, they have not explained your options to you in full, and therefore they are probably not a trustee that is fulfilling their responsibility to explain your options so that you can make an informed decision.

One of the advantages of researching your options before you meet with a trustee is that you will understand your alternatives. If you think one of these options may be applicable to you, ask the trustee to explain it to you, and ask them whether or not they think it would be a good option in your situation.

If you don’t get an understandable answer, or if the trustee seems unsure of the other options or refuses to discuss them with you, find another trustee.

If you are in financial trouble, you can decide which trustee to go to for advice, so if you are not comfortable with the advice you receive, keep looking.  You are making an important decision, so be informed, and be comfortable with your chosen trustee.

Posted on Monday, July 20th, 2009
Filed under: Bankruptcy Alternatives
posted by Doug Hoyes @ 6:37 am No Comments