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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

Gift Cards are Worthless if the Store is Bankrupt

by Doug Hoyes

Gift cards are a nice, convenient gift, but what happens if the store declares bankruptcy in Canada? The answer: you’ve got a problem.

Last week Global TV News ran a story about the bankruptcy of Tabi, a large women’s clothing retailer with 78 stores across Canada. All stores are being liquidated, and the liquidator is not allowing customers to spend their gift cards. You can watch the entire story here:

Have you ever wondered why almost every store, including grocery stores, have a gift card program? Obviously they want to encourage you to shop at their store, but that’s only part of the story. They have gift cards because they are very profitable, for two reasons:

First, statistics show that if a gift card is not redeemed within the first few weeks, it’s likely that it will not be redeemed at all. Gift cards can be easily forgotten or lost. That’s great for the store, because they sell a $50 gift card and in many cases don’t have to provide any product. That’s a 100% profit for the store.

Second, even if the gift card is used, it’s common for the gift card not to be used in full. If you have a $100 gift card and buy something for $95, what are the chances that you will go back to the store later to redeem the final $5? It’s unlikely, and in that case the store increased their profits by 5%, so again, stores love gift cards.

What can you learn from this story?

A gift card is not something you want to keep for a “rainy day“. If you get a gift card as a gift, spend it. It won’t increase in value, and there is always the chance that the store will go bankrupt, so the sooner you spend it, the better. Tabi was in business for 30 years, so if they can go bankrupt, anyone can.

The prudent approach is to use the gift card for something you were going to buy anyway. If it’s for clothing, decide what clothing you will need to purchase in the next few months, and purchase it now. You can use the gift card for luxuries, but by buying what you need you save your money.

Finally, think twice before giving a gift card as a gift. Is it likely that the recipient will use it, or is it to a store they don’t shop at so it might not be used? If in doubt, give gift cards that are redeemable at many different locations, and at stores that sell a wide variety of goods, so they are most likely to be used.

If in doubt, and you can’t think of a gift, give cash. Bankruptcy in Ontario, or anywhere in Canada can happen. Losing a $50 gift card is easy; it’s much less likely that someone will forget about a fifty dollar bill. Gift cards are convenient, but spend them quickly.

Posted on Monday, April 4th, 2011
Filed under: bankruptcy Canada
posted by Doug Hoyes @ 7:34 am 3 Comments

Credit Cards: The Fast Route to Bankruptcy in Canada

by Doug Hoyes

What’s the fastest way to accumulate so much debt that you have no option but to file bankruptcy in Canada? As a bankruptcy trustee I have handled thousands of personal bankruptcy filings over the last two decades, and the answer to that question, based on my experience, is easy:

Douglas Hoyes, Bankruptcy Trustee

Credit cards.

If you want to get into serious financial trouble, excessive credit card debt is a sure fire way to invite financial disaster.

Two years ago my firm did a study of “Joe Debtor”, the average person who declares bankruptcy in Canada. Our study showed that 93% of Canadians that file personal bankruptcy or a consumer proposal have credit card debt, and the average they owed on their credit cards at the time of filing was just under $20,000. (With other debts, like taxes and lines of credit, the total unsecured debt was just over $50,000).

The facts are clear: it’s unlikely that someone with no credit card debt will have a need to file bankruptcy. The more credit card debt you have, the more likely it is that bankruptcy may be in your future. Why is that?

First, in the past, credit cards were easy to get. We all remember the “boom times” up to 2008, when many of us received numerous credit card offers in the mail each week. We were all “pre-approved” for a $10,000 gold, or platinum, credit card with a “low introductory” rate. Remember? You said “great, I can transfer my balance from my high interest rate card to the low rate card, and save money!” And you did.

But then your car broke down and you needed money for repairs, or you were off sick from work, or some other problem occurred and you needed money. You had unused credit on the credit card you just paid off, so you used it. But now, of course, you have a problem: instead of just owing money on one credit card, you are now carrying a balance on two cards. That puts you in a cash flow squeeze every month.

Then you realized that the “low introductory rate” was only temporary, and after six months your interest rate went way up, so now you are paying even more each month.

High interest rates are a problem, but for most people who declare bankruptcy their financial problems became critical when something happened in their lives: job loss, a marriage break up, or perhaps a health issue that caused them to miss work and led to reduced income.

It’s now 2010, and ever since the “credit crisis” of 2008 the flow of credit card offers in our mailboxes has slowed to a trickle, or disappeared entirely. The days of easy access to credit are over, at least for now.

Even more challenging for Canadians with credit card debts is the reality that credit card issuers are tightening up their credit requirements. Based on the stories I have heard over the last few weeks from the dozens of people in debt I meet with each week, it appears that the credit card issuers are in the process of “culling” their credit card portfolios. They are identifying higher risk clients, and raising their interest rates to encourage them to go elsewhere. Here’s a typical story from a lady I met with this week, with her name changed to protect her privacy:

Jane is single, and has carried a large balance on her ABC Credit Card for many years. Over the years ABC has gradually increased her credit limit, and for many years they offered her what she believed was an attractive interest rate of 9.9%. Her minimum payment was about $430 per month, which was manageable based on her income. Last week she got her monthly statement, and the minimum required payment was increased to $750 per month.

She assumed that it was a mistake, so she called ABC Credit Card Company, and they advised her that no, it was not a mistake. Due to changes by the “regulatory board” her interest rate was now much higher, resulting in a higher minimum monthly payment.

When I met with her I explained that I had never heard of the “regulatory board” (although I am familiar with the new credit card regulations), but it’s easy to see what the credit card company is doing. The balance owing on her credit card was over $20,000; it is by far her largest debt. On her current income it is unlikely that she will ever be able to repay the debt. The credit card company realizes this, so they are attempting to get rid of her as a client before she defaults on the amount owing. Their hope is that her credit is still good enough to allow her to borrow from someone else, and repay them.

Unfortunately for Jane, she has no assets to pledge as collateral for a loan, and she has no family members that are able to co-sign for a loan. Based on a review of her situation, she decided that her best option is to file a consumer proposal, where she will offer her creditors approximately a third of the full amount owing, to be paid over the next four years (the amount offered varies based on your income and financial situation). With a consumer proposal Jane will no longer have any credit cards, and her credit score is damaged, but she will have a manageable monthly payment, and in four years (or less) she will be out of debt. For Jane, it’s the correct solution.

Is it the correct solution for the credit card company? It could be argued that they would be better off had they not raised her interest rate; she would have continued to muddle along, and they make have collected more money over the next few years. However, they decided that they wanted to reduce their risk, so Jane responded by filing a consumer proposal.

If you want to be proactive and deal with your credit card debt before your credit card company raises your rates, check out our free, interactive debt options calculator that tells you what it will cost to deal with your debts. The sooner you take action, the sooner you will be free of high credit card interest rates.

Posted on Monday, September 27th, 2010
Filed under: bankruptcy Canada andConsumer Proposal andDebt Options
posted by Doug Hoyes @ 3:15 am No Comments