Are There Certain Debts That Are Not Forgiven In Bankruptcy

2011-02-28   minute read

Hello, There are certain debts that survive bankruptcy pursuant to S. 178 of the Bankruptcy & Insolvency Act. They include the following:Court fines, penalties and restitution ordersAny award of damages by a court for bodily harm intentionally inflicted, sexual assault or wrongful death arising therefromAlimony, child support and maintenanceAny debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacityAny debt or liability for obtaining property by false pretenses or fraudulent misrepresentationLiability for any dividend that a creditor would have been entitled to receive but did not because you failed to disclose the creditor to your TrusteeStudent loans in certain circumstancesIn summary, a student loan debt survives bankruptcy if it has been less than seven years since you ceased to be a full or part-time student from the date of bankruptcy.  There is some case law that suggests the end of the month in which you are last in school should be used as the date in which schooling ceased (e.g. May 31 even though you maybe graduated on May 10).If you’ve completed your bankruptcy and the student loan debt survived, you may be eligible to make a court application to have your student loan debt extinguished pursuant to S. 178 (1.) of the Bankruptcy& Insolvency Act. This section is known as the “hardship provision.If you have been out of school for more than 5 years and you are discharged from your bankruptcy, you can make an application to the court to have the student loan debt discharged.  In making such an application, you must prove that you have acted in good faith in connection with the loan and that you have or will continue to experience financial difficulty to such an extent that you will be unable to pay the debt.There is no guarantee that such an application will be successful, the court will consider the merits of each case on an individual basis. Brad Milne, CIRP Trustee in Bankruptcy Brandon, Manitoba

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