6 Key Bankruptcy Rules in Canada and What They Mean for You

If you are considering bankruptcy, understanding the rules can help you know what to expect before filing. Some rules affect how long a bankruptcy lasts, what payments may be required, how tax refunds are treated, and which debts may remain afterward.

This guide explains six key bankruptcy rules in Canada and how they may affect your obligations, assets, and debt-relief options. It also outlines how some of these rules differ from a Consumer Proposal.

Rule 1: Only a LIT Can Administer Bankruptcy

Lawyers, accountants, debt consultants, and financial advisors may offer advice. However, they cannot administer a bankruptcy in Canada. Under the BIA, only LITs can perform this role.

LITs are federally licensed and regulated by the Office of the Superintendent of Bankruptcy (OSB). The OSB oversees Canada’s insolvency system and helps ensure bankruptcies and consumer proposals are administered according to federal law.

Prior to filing, a LIT will review your financial situation, explain your debt relief options and if you choose bankruptcy, prepare the required documents and file them with the OSB.

Only a Licensed Insolvency Trustee can administer a bankruptcy under the Bankruptcy and Insolvency Act.

Rule 2: Filing Triggers an Automatic Stay of Proceedings

When a bankruptcy is filed, an automatic stay of proceedings takes effect. This means most unsecured creditors must stop collection activity, including collection calls, collection letters, wage garnishments, and legal action related to unsecured debt.

For example, a worker whose wages are being garnished because of unpaid credit card debt will generally see the garnishment lifted after filing bankruptcy, allowing them to keep more of their paycheque.

Communication from creditors impacted by the bankruptcy is handled through the LIT.

Some exceptions apply. Child support and spousal support obligations are not stopped by bankruptcy. Certain regulatory proceedings may also continue.

Rule 3: Surplus Income May Affect Bankruptcy Payments and Duration

A person in bankruptcy may be required to make surplus income payments if household income exceeds limits set by the OSB. The OSB sets surplus income thresholds based on household size and updates them each year to reflect a reasonable standard of living in accordance with the OSB’s guidelines. If household income exceeds the applicable threshold, part of the excess is considered surplus income. A person in bankruptcy must generally pay 50% of the excess amount into the bankruptcy estate.

Surplus income can affect both the cost and length of a bankruptcy. A first-time bankruptcy without surplus income is generally eligible for discharge after nine months. If surplus income applies, the minimum bankruptcy period usually increases to 21 months.

For example, if a household’s monthly income is $600 above the applicable threshold, $300 would generally be paid into the bankruptcy estate each month.

Surplus income can affect both the amount paid into the bankruptcy estate and the length of a bankruptcy.

Rule 4: You Must Disclose All Assets and Recent Transfers

You must complete a Statement of Affairs listing all assets, liabilities, income, expenses, and recent financial transactions. The information must be complete and accurate.

This disclosure requirement also extends to certain transactions made before filing. A LIT may review transfers involving family members, related parties, real property, or other assets transferred below fair market value. In some cases, transactions made in the one to five years before the date of filing may be reviewed and reversed by the court.

For example, if a person transfers a valuable vehicle to a sibling shortly before filing bankruptcy and receives far less than its market value, the transaction may be reviewed and reversed.

Intentionally hiding assets or providing false information is an offence under the BIA. It can also result in penalties, delays in the bankruptcy process, or opposition to discharge.

Rule 5: Tax Refunds for the Year of Filing Belong to the Estate

Tax refunds for the year of filing are generally paid into the bankruptcy estate.

Refunds from earlier unpaid tax years, along with refunds for the year of filing, generally become part of the bankruptcy estate and are used to help repay creditors. This can include refunds that have not yet been received.

Tax refunds for years after the calendar year of bankruptcy belong to the filer. For example, if someone files for bankruptcy in 2026, tax refunds related to the 2027 tax year would generally remain theirs.

Rule 6: Bankruptcy Does Not Discharge Every Debt

Bankruptcy does not eliminate every type of debt.

Most unsecured debts are discharged, including:

• Credit card debt

• Personal loans

• Lines of credit

• Payday loans

• Most eligible CRA tax debt

However, some debts survive bankruptcy. These include:

• Child support arrears

• Spousal support arrears

• Court-ordered fines and penalties

• Restitution orders

• Debts caused by fraud

• Government student loans when fewer than seven years have passed since the end of studies

Government student loans are generally not discharged unless at least seven years have passed since you stopped being a full-time or part-time student. In limited circumstances, a person may apply to the court after five years based on financial hardship, but success is not guaranteed.

Mortgages and car loans are secured debts and are treated differently in bankruptcy.

A mortgage or car loan is tied to an asset. Bankruptcy does not remove the lender’s rights to that property. To keep the home or vehicle, you generally need to continue the required payments.

If the asset is surrendered at the time of filing and sold for less than the amount owing, the remaining unsecured balance may become part of the bankruptcy.

For example, credit card debt may be discharged through bankruptcy while mortgage obligations remain separate.

Consumer proposals use a negotiated repayment plan rather than a bankruptcy process. Some debts, such as support obligations and student loans for individuals who have been out of school for less than seven years, generally survive both a consumer proposal and a bankruptcy. Secured debts are also treated differently, as they cannot be reduced or negotiated through a consumer proposal and must continue to be paid if the person wishes to keep the asset.

How These Rules Compare to a Consumer Proposal

Bankruptcy and consumer proposals are both governed by the BIA, administered by LITs, and can provide legal protection from creditors through a stay of proceedings while addressing most unsecured debts.

However, bankruptcy and consumer proposals differ in how payments, tax refunds, and certain assets are treated.

While surplus income may be considered when a consumer proposal is developed, consumer proposals do not require ongoing surplus income calculations like a bankruptcy does. Proposal payments are negotiated at the start and generally remain fixed throughout the term of the proposal, even if income later increases.

Tax refunds are also treated differently. In a bankruptcy, tax refunds for the year of filing generally form part of the bankruptcy estate. In a consumer proposal, tax refunds generally remain with the filer.

Support arrears, recent government student loans, and other excluded debts are generally treated the same under both options.

A consumer proposal allows you to keep your assets and is typically reported differently on your credit report than a bankruptcy. Individual circumstances may vary.

The right option for you depends on your income, debts, assets, and overall financial situation and personal preferences.

What These Rules Mean for You

Bankruptcy is a legal debt relief option governed by specific rules and requirements.

Understanding how surplus income, excluded debts, tax refunds, and disclosure requirements apply to your situation can help you make a more informed decision.

Comparing bankruptcy with a consumer proposal can help you understand how each option may affect your payments, assets, and debts.

A free consultation with a LIT gives you an opportunity to review your finances, compare debt relief options, and ask questions about the process.

Frequently Asked Questions

What is the Bankruptcy and Insolvency Act?

The Bankruptcy and Insolvency Act is the federal law that governs bankruptcy and consumer proposals in Canada.

How long does bankruptcy last in Canada?

A first-time bankruptcy generally lasts nine months if surplus income does not apply. If it does, bankruptcy usually lasts at least 21 months.

How much surplus income can I keep?

You can generally keep income up to the OSB threshold for your household size. If your income exceeds that amount, 50% of the excess is usually paid into the bankruptcy estate.

Can I file bankruptcy if I am self-employed?

Yes. Self-employed people can file personal bankruptcy.

What is the difference between bankruptcy and a consumer proposal in Canada?

Bankruptcy and Consumer Proposals are both legal debt-relief options administered by a LIT.

Bankruptcy generally eliminates most unsecured debt through a legal process, while a Consumer Proposal involves repaying an agreed portion of debt through a structured repayment plan over time.

The two options can differ in how payments, assets, tax refunds, and credit reporting are treated. Both provide legal protection from most unsecured creditors.

Will I lose my home or car if I file for bankruptcy in Canada?

Not necessarily. Whether you keep your home or vehicle depends on factors such as provincial exemption rules, the how much equity you hold in the home or vehicle, and your ability to maintain the payments.