You just got a letter/phone call about an old debt that you owe. The first consideration is to determine if you owe the money. If you do not owe the debt, simply tell the collection company that you do not owe the money. Ask them to send you copies of any documentation that proves otherwise. When they say that they do not have to send you any papers or that they do not have to prove to you that you owe the money – be very clear – yes, they do have to prove that you owe the money and if they refuse to prove it, you will not pay them any money. In other words, you are not refusing to pay what you owe, but you are legally entitled to know what you owe and to whom you owe it to.
In Ontario, there is a law called The Limitations Act of Ontario which stops a creditor from suing you if your debt is over two (2) years old. The debt is still owing, of course, but the creditor cannot go to a court to collect the debt. You must be aware that if you acknowledge the debt in any way, the two-year period starts all over again. Also note that the credit bureau (Equifax Canada and Trans Union of Canada) will still list the delinquent account for six years as an R9 bad debt which will keep your credit score low. Certain debts are not subject to the two-year limitation period – these include income tax, government guaranteed student loans, child support arrears, etc.
Other provinces/territories have similar limitation periods. Ontario, Alberta, British Columbia and Saskatchewan are all two years. Quebec’s limitation is three years. The rest of Canada is six years.
When you file a Consumer Proposal in Ontario, there is a hold on all legal proceedings that your creditors can take against you. Interest on all debts stop as of the day the court accepts the Consumer Proposal and confirms the appointment of your Licensed Insolvency Trustee who acts as the Administrator of your proposal. If the creditors accept the offer in your proposal, then your only obligation is to make payments in accordance with the terms of the proposal, which may or may not include an interest factor. If the creditors refuse your proposal, then you have options. Normally, your trustee will contact the creditors who refused to agree to your proposal and ask what they would accept in payments to change their decision. This may take several months of negotiating back and forth. You want to pay as little as possible. Your creditors want as much as possible. Somewhere in the middle is what is reasonable in these circumstances.
In cases where no proposal can be negotiated with the creditors and the proposal is refused by a majority of creditors, then you, as the person filing would be back at square one. The full rights of all creditors are reinstated and their right to claim interest is back to the day you filed the Consumer Proposal when the interest was stopped. If you subsequently file another proposal or a bankruptcy, the interest stops again.
Contact Rumanek & Company Ltd. for more information on bankruptcy in Ontario and debt solutions. Please fill out the bankruptcy evaluation form. To learn more please visit our YouTube Channel. Rumanek & Company have been helping individuals and families overcome personal bankruptcy in Ontario for more than 25 years.
When you file an Assignment in Bankruptcy, you are allowed to keep sufficient of your income to allow you to live a normal life. The trouble is that the definition of a “normal life” is based on a cross-Canada average that is calculated annually by the Office of Superintendent in Bankruptcy. It starts with your net after tax take-home pay and has an allowance for special non-discretionary expenses such as child and spousal support payments, child care expenses, expenses of a medical condition, court imposed fines or penalties that are being paid and any expenses related to your employment that are recognized by the Income Tax Act. Unfortunately, the average of high cost areas such as Toronto and Vancouver are merged with low cost areas. If you live in a high cost area, the average cost of living does not work – but you still have to abide by it.
Once surplus income is calculated, 50% of the surplus amount must be paid to your Licensed Insolvency Trustee who will divide the amount among your creditors. For the first time bankrupts, you must pay the surplus for 21 months, for 2nd time bankrupts, you must pay for 36 months. For a more detailed reading of Directive 11R2 – 2016, please go to Office of the Superintendent of Bankruptcy Canada (/eic/site/bsf-osb.nsf/eng/home)
An RESP is set up usually by a parent or other family member by way of a contract with an institution (the scholarship fund) for the benefit of their child. The standard wording in the contract results in the RESP being considered an asset of the parent or other person that is divisible among their creditors in the bankruptcy. If you are in this situation, speak to your Licensed Insolvency Trustee about buying the RESP back from the bankruptcy so that it can continue to be of benefit to your child when he or she starts their post-secondary level of education. The purchase price and terms of payment can be negotiated but generally start at the dollar amount that the trustee would get if the RESP plan was collapsed. The usual payment terms are that you must pay the settlement amount for the RESP before you are discharged.
Please see related article – Will I Lose my RESP in a Consumer Proposal?