Perry Krieger & AssociatesThe following excerpts from the Bankruptcy and Insolvency Act are extremely important for those considering an assignment in bankruptcy or a proposal. When you meet with a Trustee at Perry Krieger & Associates Inc., we will go over these duties and their meaning with you.
Section 67 PROPERTY OF THE BANKRUPT
(1) The property of a bankrupt divisible among his creditors shall not comprise
(a) Property held by the bankrupt in trust for any other person,
(b) Any property that as against the bankrupt is exempt from execution or seizure under the laws of the province within which the bankrupt is situated and within which the bankrupt resides.
BUT IT SHALL COMPRISE
(c) All property wherever situated of the bankrupt at the date of bankruptcy or that may be acquired by or devolve on him before his discharge, AND
(d) Such powers in or over or in respect of the property as might have been exercised by the bankrupt for his own benefit.
Section 157(1) DUTIES OF BANKRUPTS REGARDING COUNSELLING SESSIONS
The Bankruptcy and Insolvency Act provides in Section 157.1 that the Trustee shall provide or provide for counselling services for an individual bankrupt and may provide or provide for counselling services for a person related to an individual first-time bankrupt.
The Trustee will provide two MANDATORY counselling sessions with respect to the current financial situation of the bankrupt and with respect to money-management, use of credit, budgeting and related subjects. The first session will take place between 10-60 days from the filing of the bankruptcy; the second session will take place before the seventh month of bankruptcy.
BANKRUPTS ARE REFERRED TO SECTION 157.1(3) OF THE SAID ACT WHICH PROVIDES THAT THE AUTOMATIC DISCHARGE PROVISIONS WILL NOT APPLY TO AN INDIVIDUAL FIRST-TIME BANKRUPT WHO HAS REFUSED OR NEGLECTED TO RECEIVE COUNSELLING PROVIDED PURSUANT TO SUBSECTION (1). FAILURE TO ATTEND EITHER OF THE FIRST TWO COUNSELLING SESSIONS WILL RESULT IN THE DISCHARGE OF THE BANKRUPT BEING OPPOSED BY THE TRUSTEE.
Section 158 – A BANKRUPT SHALL:
(a) Make discovery of and deliver all his property that under his possession or control to the Trustee or to any person authorized by the Trustee to take possession of it or any part thereof;
(a1) Deliver to the Trustee, for cancellation, all credit cards issued to and in the possession or control of the bankrupt;
(b) Deliver to the Trustee all books, records, documents, writing, and papers including, without restricting the generality of the foregoing, title papers, insurance policies, and tax records and returns and copies thereof in any way relating to his property or affairs;
(c) At such time and place as may be fixed by the Official Receiver attend before the Official Receiver or before any other Official Receiver delegated by the Official receiver for examination under oath with respect to his conduct, the causes of his bankruptcy and the disposition of his property;
(d) Within five days following the bankruptcy, unless the time is extended by the Official Receiver, prepare and submit to the Trustee in quadruplicate a statement of the bankrupt’s affairs in the prescribed form verified by affidavit and showing the particulars of the bankrupt’s assets and liabilities, the names and addresses of the bankrupt’s creditors, the securities held by them respectively, the dates when the securities were respectively given and such further or other information as may be required, but where the affairs of the bankrupt are so involved or complicated that the bankrupt alone cannot reasonably prepare a proper statement of affairs, the official receiver may, as an expense of the administration of the estate, authorize the employment of a qualified person to assist in the preparation of the statement;
(e) Make or give all the assistance within his power to the Trustee in making an inventory of his assets;
(f) Make disclosure to the Trustee of all property disposed of within the period beginning on the day that is one year before the date of the initial bankruptcy event or beginning on such other antecedent date as the Court may direct, and ending on the date of the bankruptcy, both dates included, and how and to whom and for what consideration any part thereof was disposed of except such part as had been disposed of in the ordinary manner of trade or used for reasonable personal expenses;
(g) Make disclosure to the Trustee of all property disposed of by gift or settlement without adequate valuable consideration within the period beginning on the day that is five years before the date of the initial bankruptcy event and ending on the date of the bankruptcy, both dates included;
(h) Attend the first meeting of his creditors unless prevented by sickness or other sufficient cause and submit thereat to examination.
(i) When required, attend other meetings of his creditors or of the inspectors, or attend on the Trustee;
(j) Submit to such other examinations under oath with respect to his property or affairs as required;
(k) Aid to the utmost of his power in the realization of his property and the distribution of the proceeds among his creditors;
(l) Execute such powers of attorney, conveyances, deeds and instruments as may be required;
(m) Examine the correctness of all proofs of claims filed, if required by the Trustee;
(n) In case any person has to his knowledge filed a false claim, disclose the fact immediately to the Trustee;
(n1) Inform the Trustee of any material change in the bankrupt’s financial situation;
(o) Generally do all such acts and things in relation to his property and the distribution of the proceeds among his creditors as may be reasonably required by the Trustee, or may be prescribed by the General Rules, or may be directed by the Court by a special order made with reference to any particular case or made on the occasion of any special application by the Trustee, or any creditor or person interested; and
(p) Until his application for discharge has been disposed of and the administration of the estate completed, keep the Trustee advised at all times of his place of residence or address.
Section 159
Where the bankrupt is a corporation, the officer executing the Assignment, or such other officer or officers as the Official Receiver may direct, shall attend before the Official Receiver for examination; and shall perform all the duties imposed upon a bankrupt by Section 158, and in the case of failure to do so, such officer or officers are punishable as if he or they were the bankrupt.
Section 178 – DEBTS NOT RELEASED BY ORDER OF DISCHARGE
(1) AN ORDER OF DISCHARGE DOES NOT RELEASE THE BANKRUPT FROM:
(a) Any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order, imposed by a Court in respect of an offence, or any debt arising out of a recognizance or bail;
(a1) Any award or damages by a Court in civil proceedings in respect of:
(i) bodily harm intentionally inflicted, or sexual assault, or
(ii) wrongful death resulting therefrom;
(b) Any debt or liability for alimony;
(c) Any debt or liability under a support, maintenance or affiliation order or under an agreement for maintenance and support of a spouse or child living apart from the bankrupt;
(d) Any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity;
(e) Any debt or liability for obtaining property by false pretences or fraudulent misrepresentation;
(f) Liability for the dividend that a creditor would have been entitled to receive on any provable claim not disclosed to the Trustee, unless the creditor had notice or knowledge of the bankruptcy and failed to take reasonable action to prove his claim;
(g) Any debt or obligation in respect of a loan made under the Canada Student Loans Act, the Canada Student Financial Assistance Act or any enactment of a province that provides for loans or guarantees of loans to students where the date of bankruptcy of the bankrupt occurred
(i) before the date on which the bankrupt ceased to be a full- or part-time student, as the case may be , under the applicable Act or enactment, or
(ii) within seven (7) years after the date on which the bankrupt ceased to be a full- or part-time student; or
(h) Any debt for interest owed in relation to an amount referred to in any of paragraphs (a) to (g).
(1.1) At any time after five (5) years after a bankrupt who has a debt referred to in paragraph (1)(g) ceases to be a full- or part-time student, as the case may be, under the applicable Act or enactment, the Court may, on application, order that subsection (1) does not apply to the debt if the Court is satisfied that:
(a) the bankrupt has acted in good faith in connection with the bankrupt’s liabilities under the loan; and
(b) the bankrupt has and will continue to experience financial difficulty to such an extent that the bankrupt will be unable to pay the liabilities under the loan.
(2) Subject to subsection (1), an order of discharge releases the bankrupt from all claims provable in bankruptcy.
Section 198 – BANKRUPTCY OFFENCES
(1) ANY BANKRUPT WHO
(a) Makes any fraudulent disposition of the bankrupt’s property before or after the date of the initial bankruptcy event,
(b) Refuses or neglects to answer fully and truthfully all proper questions put to bankrupt at any examination held pursuant to the Act,
(c) Makes a false entry or knowingly makes a material omission in a statement or accounting,
(d) After or within one year immediately preceding the date of the initial bankruptcy event, conceals, destroys, mutilates, falsifies, makes an omission in or disposes of, or is privy to the concealment, destruction, mutilation, falsification, omission from or disposition of, a book or document affecting or relating to the bankrupt’s property or affairs, unless the bankrupt had no intent to conceal the state of the bankrupt’s affairs;
(e) After or within one year immediately preceding the date of the initial bankruptcy event, obtains any credit or property by false representations made by the bankrupt or made by any other person to the bankrupt’s knowledge;
(f) After or within one year immediately preceding the date of the initial bankruptcy event, fraudulently conceals or removes any property of a value of fifty dollars or more or any debt due to or from the bankrupt, or
(g) After or within one year immediately preceding the date of the initial bankruptcy event, hypothecates, pawns, pledges or disposes of any property that the bankrupt has obtained on credit and has not paid for, unless in the case of a trader the hypothecation, pawning, pledging or disposing is in the ordinary way of trade and unless the bankrupt had no intent to defraud,
Is guilty of an offence and is liable, on summary conviction, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year or to both, or on conviction on indictment, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding three years, or to both.
(2) A bankrupt who, without reasonable cause, fails to comply with an order of the Court made under Section 68 or to do any of the things required of the bankrupt under Section 158 is guilty of an offence and is liable
(a) on summary conviction, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year, or to both; or
(b) on conviction on indictment, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding three years, or to both.
Section 199
AN UNDISCHARGED BANKRUPT WHO:
(a) Engages in any trade or business without disclosing to all persons with whom the undischarged bankrupt enters into any business transaction that the undischarged bankrupt is an undischarged bankrupt, or
(b) Obtains credit to a total of five hundred dollars or more from any person or persons without informing such persons that the undischarged bankrupt is an undischarged bankrupt,
Is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year, or to both.
Section 200 (1)
(1) Any person becoming bankrupt or making a proposal who has on any previous occasion been bankrupt or made a proposal to the person’s creditors is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding one year, or to both, if
(a) being engaged in any trade or business, at any time within the period beginning on the day that is two years before the date of the initial bankruptcy event and ending on the date of the bankruptcy, both dates included, that person has not kept and preserved proper books of account; or
(b) within the period mentioned in paragraph (a), that person conceals, destroys, mutilates, falsifies or disposes of, or is privy to the concealment, destruction, mutilation, falsification or disposition of, any book or document affecting or relating to the person’s property or affairs, unless the person had no intent to conceal the state of the person’s affairs.
(2) For the purposes of the Section a debtor shall be deemed not to have kept proper books of account if he has not kept such books or accounts as are necessary to exhibit or explain his transactions and financial position in his trade or business, including a book or books containing entries from day to day in sufficient detail of all cash received and cash paid, and, where the trade or business has involved dealings in goods, also accounts of all goods sold and purchased, and statements of annual and other stock-takings.
(3) Unlawful transactions – Where the bankrupt enters into any transactions with any person for the purpose of obtaining a benefit or advantage to which either of them would not be entitled, the bankrupt is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding five thousand dollars, or to imprisonment for a term not exceeding one year, or to both.