Testamentary capacity is used to describe the mental state of an individual when executing their Last Will and Testament. As there is no clear definition of capacity, it is often described as a decision-specific, time-specific and situation-specific issue, meaning that capacity can vary from case to case
What Is Frustration Of Contract?
Assignment of an Agreement of Purchase and Sale
Aggravated and Punitive Damages
In many wrongful dismissal cases, employees may be entitled to what is known as aggravated and punitive damages. Aggravated damages are compensatory in nature and often require the employer to have engaged in bad faith during the employee’s dismissal, and where the employer’s bad faith results in actual harm to the former employee.
Important Clauses in a Letter of Intent
Letters of intent, also known as an LOI, is a document used to negotiate between a buyer and a seller in various types of transactions. LOI’s outline the specific terms of a potential deal that will occur at some point. LOI’s are typically used to discuss aspects in the contract that can still be negotiated.
Leaves of Absence in Ontario
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
In Ontario, employees are afforded certain rights under the Employment Standards Act (ESA), including leaves of absence. A leave of absence is an employee’s right to temporarily stop work and return to their job-protected position within the workplace. Although there are many different types of absences, for the purpose of this article, the most common absences will be discussed, along with an employee’s rights while on such leaves.
One of the most common leaves includes pregnancy and parental leave. Pregnant employees have the right to take a pregnancy leave of up to 17 weeks, or longer of unpaid time off work. A pregnant employee is entitled to this leave regardless if she is a full-time, part-time, permanent or contract employee, provided that she is employed by an employer that is covered under the ESA, and she started her employment at least 13 weeks before the date her baby is expected to be born.1
Parental leave, on the other hand, is offered to both new parents. Parental leave is available for parents who qualify, offering up to 61 to 63 weeks of unpaid time off work. Similar to pregnancy leave, a new parent is entitled to parental leave regardless if they are full-time, part-time, permanent or contract employees, provided they are employed by an employer who is covered by the ESA and were employed for at least 13 weeks before commencing the parental leave.2 In this event, a ‘parent’ includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own, including same-sex couples.3
For both pregnancy and parental leave, an employee who takes such leave is entitled to return to the same job the employee had before the leave began, or return to a comparable job if the employee’s old position no longer exists. In addition, employers cannot punish an employee in any way because the employee took a pregnancy or parental leave, plans to take a leave, is eligible to take a leave or will become eligible to take a leave.4 Employers have a responsibility during pregnancy and parental leave to maintain the employment contracts, such as continuing to contribute to benefits.
Sick leave is another type of leave of absence offered to employees. Most employees have the right to take up to three days of unpaid job-protected time off due to personal illness, injury or medical emergency. However, an employment contract may provide a greater right or benefit than the sick leave standards under the ESA. Generally, an employee must inform their employer before starting the leave, and if this is not possible, the employee is required to inform their employer as soon as possible after starting the leave. Further, an employer may require an employee to provide a medical note from a health care professional asking for the duration or expected duration of the absence, the date the employee was seen by the health care practitioner and whether the patient was examined in person by the health care professional issuing the note. Employees who take a sick leave are entitled to the same rights as employees who take pregnancy or parental leave, in such that an employer cannot threaten, fire or penalize in any way an employee who takes or plans to take a sick leave.5
Another leave of absence is the family caregiver leave. Similar to the leaves mentioned above, this is an unpaid, job-protected leave and can last up to eight weeks per calendar year per specified family member.6 The care or support for a family member may include but is not limited to, providing psychological or emotional support, arranging for care by a third-party provider or directly providing for the family member.7
Under the Employment Standards Act, there are many different types of leaves that employees are entitled to take, which are job-protected. This means that employees are permitted to take time off work for personal or health related reasons and return to their same position or one that is comparable, without being penalized by their employer.
One of the most common leaves includes pregnancy and parental leave. Pregnant employees have the right to take a pregnancy leave of up to 17 weeks, or longer of unpaid time off work. A pregnant employee is entitled to this leave regardless if she is a full-time, part-time, permanent or contract employee, provided that she is employed by an employer that is covered under the ESA, and she started her employment at least 13 weeks before the date her baby is expected to be born.1
Parental leave, on the other hand, is offered to both new parents. Parental leave is available for parents who qualify, offering up to 61 to 63 weeks of unpaid time off work. Similar to pregnancy leave, a new parent is entitled to parental leave regardless if they are full-time, part-time, permanent or contract employees, provided they are employed by an employer who is covered by the ESA and were employed for at least 13 weeks before commencing the parental leave.2 In this event, a ‘parent’ includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own, including same-sex couples.3
For both pregnancy and parental leave, an employee who takes such leave is entitled to return to the same job the employee had before the leave began, or return to a comparable job if the employee’s old position no longer exists. In addition, employers cannot punish an employee in any way because the employee took a pregnancy or parental leave, plans to take a leave, is eligible to take a leave or will become eligible to take a leave.4 Employers have a responsibility during pregnancy and parental leave to maintain the employment contracts, such as continuing to contribute to benefits.
Sick leave is another type of leave of absence offered to employees. Most employees have the right to take up to three days of unpaid job-protected time off due to personal illness, injury or medical emergency. However, an employment contract may provide a greater right or benefit than the sick leave standards under the ESA. Generally, an employee must inform their employer before starting the leave, and if this is not possible, the employee is required to inform their employer as soon as possible after starting the leave. Further, an employer may require an employee to provide a medical note from a health care professional asking for the duration or expected duration of the absence, the date the employee was seen by the health care practitioner and whether the patient was examined in person by the health care professional issuing the note. Employees who take a sick leave are entitled to the same rights as employees who take pregnancy or parental leave, in such that an employer cannot threaten, fire or penalize in any way an employee who takes or plans to take a sick leave.5
Another leave of absence is the family caregiver leave. Similar to the leaves mentioned above, this is an unpaid, job-protected leave and can last up to eight weeks per calendar year per specified family member.6 The care or support for a family member may include but is not limited to, providing psychological or emotional support, arranging for care by a third-party provider or directly providing for the family member.7
Under the Employment Standards Act, there are many different types of leaves that employees are entitled to take, which are job-protected. This means that employees are permitted to take time off work for personal or health related reasons and return to their same position or one that is comparable, without being penalized by their employer.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Government of Ontario, ‘Pregnancy and Parental Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act/pregnancy-and-parental-leave#:~:text=Pregnant%20employees%20have%20the%20right,of%20unpaid%20time%20off%20work.&text=Birth%20mothers%20who%20took%20pregnancy,to%2063%20weeks'%20parental%20leave.2 Ibid.
3 Ibid.
4 Ibid.
5 Government of Ontario, ‘Sick Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act-0/sick-leave
6 Government of Ontario, ‘Family Caregiver Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act-0/family-caregiver-leave
7 Ibid.
Separation Agreements and the Transfer of Matrimonial Property
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
When a couple decides to separate, one of the primary concerns involve what is to come of the matrimonial home. Several options exist at this point. For one, the parties may elect to have the matrimonial home sold, and to then have the sale proceeds divided according to agreed upon allotments outlined in a separation agreement. Alternatively, one party may elect to purchase the other party’s interest in the property. This process involves transferring the title of the home solely into the name of the party purchasing the interest of the other. Whichever route a separating couple elect to take, it will be outlined in detail in a binding separation agreement.
A separation agreement is a legal document that works to outline the terms of a separation between the parties. More specifically, the agreement will typically outline the couple’s shared assets and debts, and describe how they are to be divided between the parties upon separation. In this context, the separation agreement should also outline what the parties have agreed will happen to the material property. Many of these agreements will provide for a buyout option, where party A will buy party B out of their interest in the matrimonial property. Having a binding separation agreement in place is the first step of this process.
Once a separation agreement has been executed by the parties, both should then look to retain their own real estate lawyers to deal with transferring the title of the matrimonial property. One of the main reasons that each party is required to retain their own independent real estate lawyer is so that each party receives independent legal advice pursuant to their own unique interest in the title transfer. Each party’s lawyer will work to explain to their client the legal consequences of executing the transfer of title. The interest of each respective party depends on which side of the transfer they find themselves on.
The party being bought out of the property will work closely with their lawyer to ensure they receive prompt payment of the buyout amount outlined in the agreement proper to signing over their interest in the matrimonial property.
Conversely, the party who will have the property transferred solely into their name will work with their lawyer to ensure that they properly provide the buyout amount in exchange for sole title to the property, along with other accompanying documentation. This additional documentation will state that the other party has indeed received independent legal advice and fully understands the consequences of executing the agreement at hand.
Regardless of which side of this process you find yourself, it is important to retain the services of an experienced real estate lawyer. Your lawyer will ensure that the agreement is followed meticulously, and advise you of the various ramifications resulting from the execution of the agreement.
Articles written by Warren Gilmore:
Estate Planning for Reconstructed Families
Sale of Canadian Property by a Non-Resident
The Prudent Real Estate Investors Checklist Alternative Approaches To Purchasing A Recreational Property Power of Attorney General Overview Power of Attorney General Overview - Continued Non-Resident Speculation Tax
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Estate Planning for Reconstructed Families
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
The dynamic of the modern Canadian family continues to change. An increasing number of Canadians find themselves entering into second marriages or common law relationships. In many instances, these subsequent relationships involve individuals coming together with children from prior marriages, or having children within these new relationships. These blended family dynamics tend to complicate matters as far as estate planning goes, making it essential to have a properly constructed plan in place.
For starters, upon entering into a subsequent marriage any preexisting Will you may already have in place will become null and void. Unless of course this Will specifically accounts for such an event. Further, in the instance of divorce, your ex-spouse can no longer legally be deemed a beneficiary or an executor of your Will. However, the remaining provisions of the Will, unrelated to your spouse and the divorce will remain legally valid and intact. Further, if you have any subsequent domestic agreements currently in place, such as a cohabitation agreement, a separation agreement, or a marriage contract, any provisions included in these agreements will trump any conflicting aspects of a previously executed Will, should the documents ever conflict.
When constructing a new estate plan with a blended family it is important to take into consideration the concerns outlined above. Additionally, putting together an effective estate plan for this family dynamic has its own set of unique considerations. First, each partner in the new relationship should take time to consider what individuals would be considered their own individual financial dependents. This would include any children from previous relationships that either partner plans to bring into this newly blended family. Second, it is important to consider the nature of any property you may currently own. Specifically, how is title to property held, jointly, solely? This will determine how any future interests to said properties will be outlined in the Will. Third, will it be your intention to have your Will and its directive be in sync with that of your new partner? Or do you want it to be unique to your own individual wishes? This is something that is often over looked by individuals in this situation. If you wish for your Will to depart from the wishes of your partner it becomes necessary that each of you retain your own independent lawyer. This will ensure that each of your intentions are accurately and legally reflected in your own individual estate plan.
Whichever route you elect to take, it is always prudent to retain the services of an experienced estate lawyer. Their expertise will allow them to make sure that your wishes are documented in a manner that is accurate, and more importantly enforceable. Having this type of an experienced professional in your corner becomes even more critical when dealing with the complexities involved in a reconstructed family.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Valid, Void and Voidable Contracts
Author: Sarah Nadon – Law Student
Edited By: Ryan Carson
What makes a contract voidable?
Voidable contracts have elements within the contract that are enforceable, therefore on their face, they appear to be valid. However, they also contain elements that make is possible for one or both parties to void the contract entirely. The contract is considered to be valid if the injured party opts not to take action and not render the contract void.
Reasons a contract may be voidable:
Failure of one or both parties to disclose a material fact,
Fraud,
Duress,
One party is legally incapacitated,
The contract contains unconscionable terms.
To enforce the voidable contract, one of the parties must exercise their right to render the contract void. But both parties have the right to enforce the contract. A void contract is different from a voidable contract because from the moment a void contract is created it cannot be fulfilled while a voidable contract can be performed and enforced as soon as the contractual defects are corrected.
What makes a contract void?
A void contract is a formal agreement that is illegitimate and cannot be enforced by law because it cannot be performed.
Reasons a contract may be void:
One party is contracted to do something impossible,
One party is contracted to do something illegal or against public policy,
The contract restricts an individual’s rights.
What makes a contract valid?
A valid contract creates a legal agreement between two parties. A valid contract contains an offer, acceptance and consideration as well as meeting of the minds and mental capacity, therefore parties are legally responsible for the performance of the contract. If one party breaches the contract, the other party may go to the courts in order to receive remedies. All elements of a valid contract are legal, enforceable and binding.
Elements of a valid contract:
Offer
Acceptance
Consideration
Meeting of the minds
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Co-Parenting In The Age Of A Pandemic
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
From the advent of the novel Coronavirus, now identified as Covid-19, many changes have been implemented. These include, but are not limited to, cancelled sporting events, transitions to online education, and the closure of jurisdictional borders. In all of this, some things have not changed, including navigating co-parenting for separated and divorced spouses. Although there has been a suspension of regular Superior Court of Justice operations, urgent family law matters are still being dealt with at this time.
Many questions arise regarding the safety of children, especially if one parent has an increased risk of exposure due to the nature of their employment. In the recent case of Ribeiro v Wright, the Ontario Superior Court provided some guiding principles on these issues. It was established that both parents must work together to show flexibility, creativity, and common sense during these times to ensure the physical and emotional well-being of the child.1
Further, the court in this case recognized that a blanket policy that children should not leave their primary residence is inconsistent with the best interest of the child analysis.2 Parents with existing access orders and schedules are encouraged to find ways to continue such arrangements in a safe manner. Parents were also informed that there will be zero tolerance for those who do not follow the specified pandemic protocols and recklessly expose a child or member of the child’s household to any Covid-19 risk.3
Spousal and child support payment are among some of the issues that have surfaced as a result of the pandemic. According to the Federal Government of Canada, over 18 million people have applied for the Canada Emergency Relief Benefit, a monthly payment to help those who have been laid off or lost their source of income due to Covid-19.4
Further, the court in this case recognized that a blanket policy that children should not leave their primary residence is inconsistent with the best interest of the child analysis.2 Parents with existing access orders and schedules are encouraged to find ways to continue such arrangements in a safe manner. Parents were also informed that there will be zero tolerance for those who do not follow the specified pandemic protocols and recklessly expose a child or member of the child’s household to any Covid-19 risk.3
Spousal and child support payment are among some of the issues that have surfaced as a result of the pandemic. According to the Federal Government of Canada, over 18 million people have applied for the Canada Emergency Relief Benefit, a monthly payment to help those who have been laid off or lost their source of income due to Covid-19.4
Under normal conditions, if the payor parent has a change in financial circumstances, they can apply to the court to have them approve the support payment amount. However, as courts are temporarily suspended, a request for a temporary change in support payments may not meet the court’s definition of an urgent matter. Similarly, the courts in this situation have stated that support payments should be maintained in full, and arrangements between both parents should be made in the event the payor parent can longer do so.
This pandemic has brought family law issues into uncharted territories. The courts are faced with making decisions without any precedents to reference, and are endeavouring to ensure the safety and maintenance of the children until normal operations resume. Therefore, it is important for separated parents to work together during these times and come to mutual agreement that is in the best interest of the children.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Ribeiro v Wright (2020) ONSC 18292 Ibid
3 Ibid
4 Government of Canada CERB Statistics; https://www.canada.ca/en/services/benefits/ei/claims-report.html
An Investment Conversation with Mark Baltazar from Peak Multifamily Investments
Ryan Carson and Mark Baltazar from Peak Multifamily Investments had a productive conversation about multifamily and commercial real estate investments that will be very informative not only for everyone, but especially first time investors!
Some topics included are:
Advice for first time investors
The ideal property type to invest in according to Mark
How has investing in multi residential changed since COVID-19?
With working from home now being more common, how will that affect the real estate market?
Have a question for Mark or want to know more about Peak Multifamily Investments?
Mark Baltazar Peak Multifamily Investments
Instagram: @mark_baltazar Instagram: @peakmultifamily
Facebook: Mark Baltazar Facebook: Apartment Building Investors Network
Sale of Canadian Property by a Non-Resident
Author: Warren Gilmore – Law Student
Edited By: Ryan Carson
If purchasing a property in Canada from a Non-Resident, the transaction will involve a unique set of tax concerns. It is important to have an understanding of your obligations, and to have them provided for in the Agreement of Purchase and Sale in order to avoid personal tax liability.
When a Non-Resident owner of property in Canada decides to sell, the CRA determines any yield in the value of the home that will be considered capital gains. As such, the CRA requires the Non-Resident Vendor to pay taxes on these gains. It is the responsibility of the Purchaser to perform a reasonable amount of due diligence to determine the residency classification of the Vendor. In conducting this due diligence, the Purchaser can request that the Vendor execute an “Affidavit of Residency.”
For the protection of the Purchaser, Agreements that involve these Non-Resident concerns usually include a clause that reads something to the effect of:
“The Purchaser is advised that the Vendors are Non-Residents of Canada and the Vendor's lawyer shall retain 25% of the purchase price in Trust until appropriate clearance certificates are issued by Revenue Canada. The vendor agrees to provide undertaking of such on closing.”
The Non-Resident Vendor is required to secure a clearance certificate from CRA before obtaining the entirety of the sale proceeds. This clearance certificate will outline how much of the sale proceeds are taxable, and are owed to CRA. While the clearance certificate cannot be applied for until all conditions have been fulfilled and the Agreement becomes binding, it is ideal to have this certificate in possession prior to the closing date of the transaction. This will allow all parties in advance to know exactly what taxes are owed, eliminating the need for a holdback. If this condition is not provided for and a clearance certificate is not obtained, the Purchaser will become the obligated party, and will be responsible for any taxes that CRA determines to be applicable to the transaction.
If a clearance certificate is not obtained before the closing date, the Purchaser and their lawyer should take the necessary steps to have the allotted portion of the sale proceeds remain in trust with the Vendor’s lawyer, pending a complete tax assessment from CRA.
The amount of the purchase price to be withheld is solely dependent on the nature of the subject property. If the subject property is determined to be non-capital, meaning that is was never used to produce income, and instead involved family residential use, then Section 116 of the Income Tax Act, provides that 25% of the purchase price is to be withheld. Alternatively, if the subject property is considered to be capital, and was used to produce income, the holdback allotment can increase to as much as 50% of the purchase price.
If this assessment reveals that no taxes are owed on the property, CRA will issue a clearance certificate, which permits the release of the sale proceeds that were being withheld. Conversely, if the CRA assessment revels that the transaction is indeed subject to taxes, then the amount owing will be deducted from the holdback amount. In total, this assessment period can take anywhere from 1-3 months to conclude.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
What Is Trademark Confusion?
Author: Sarah Nadon – Law Student
Edited By: Ryan Carson
Trademark confusion arises when one trademark is confused with another trademark and when the use of both trademarks would likely lead to the inference that the goods and services are produced by the same company or individual. Trademark confusion can lessen the value of the original trademark because consumers could associate the original trademark with the goods and services of the second trademark, which may be subpar to the original.
In the 2006 case, Mattel U.S.A. Inc. v 3894207 Canada Inc., 2006 SCC 22, the Supreme Court of Canada, declared that trademark confusion resulted from when a customer mistakes the goods and services associated with both trademarks, are from the same brand. In the Mattel case, a Montreal based bar and grill restaurant applied to register the trademark “Barbie’s” in association with the restaurant. Mattel, a famous toy company, owns the trademark “Barbie,” which is associated with the world-famous doll. Mattel opposed the application based on confusion. The Trade-marks Opposition Board rejected Mattel’s opposition as it was not likely that “Barbie’s” bar and grill restaurant would likely be confused with Mattel’s famous Barbie doll.
The Trademarks Act, RSC 1985,c T-13 provides that trademark confusion can be decided by a set of five enumerated factors:
6(5). In determining whether trademarks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including:
(a) the inherent distinctiveness of the trademarks or trade-names and the extent to which they have become known;
(b) the length of time the trademarks or trade-names have been in use;
(c) the nature of the wares, services or business;
(d) the nature of the trade; and
(e) the degree of resemblance between the trademarks or trade-names in appearance or sound or in the ideas suggested by them.
However, it is essential when applying the test, not to stick to the five enumerated factors. Considering all surrounding factors will provide a more accurate assessment for confusion as the application of the test is fact dependent.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Corollary Relief
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
In addition to the equalization payments and division of property, divorcing couples may also bring a claim for corollary relief, which seeks orders from the court relating to financial support, custody and access. For married couples getting a divorce, one of the parties may initiate their spousal support by way of the Divorce Act. However, there must have been a divorce granted in order to seek corollary relief. For unmarried cohabitants, they may initiate their spousal support action by way of Part 3 of the Family Law Act.
Three questions must be addressed when considering spousal support. The first is entitlement, the second is quantum (how much), and the third is duration (how long).
For unmarried couples, entitlement starts with the definition of ‘spouse’ found in section 29 of the Family Law Act and includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence if they have a child together.1 The definition of cohabitation can be broken down into sections, namely, time requirements, aspects of cohabitation and intention, which all contribute to the meaning of cohabitation. The purpose of spousal support for unmarried cohabitants is set out in section 33(8) of the Family Law Act and includes;
(a) To recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse,
(b) To share the economic burden of child support equally,
(c) To assist the spouse in becoming financially independent, and
(d) To relieve financial hardship.2
For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3
(a) To recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse,
(b) To share the economic burden of child support equally,
(c) To assist the spouse in becoming financially independent, and
(d) To relieve financial hardship.2
For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3
Once entitlement is established, the next step is to determine quantum and duration. According to the Spousal Support Advisory Guidelines (SSAG) the length of marriage actually refers to the length of cohabitation, which includes periods of premarital cohabitation and ends with separation. Included in the Spousal Support Advisory Guidelines are several formulas that can be used to determine how much spousal support you may be entitled to, depending on whether you have children or not.
The ‘without child’ support formula is used where there are no dependant children. This amount usually yields monetary figures that are lower and shorter, which align with non-compensatory support, which are claims that generally arise from shorter marriages. This formula is based on the gross income difference between the spouses and the length of marriage. In terms of duration, this is simply calculated based upon the length of cohabitation. The general rule suggests that the payee spouse will get from ½ to 1 year for each year that they cohabited with the payor spouse. However, any relationship longer than 20 years suggests that the duration of the spousal support is indefinite, meaning that the range of duration is not specified.
In contrast, ‘with child’ formulas tend to result in higher amounts for a longer period of time, mirroring the compensatory model, which generally arise from longer marriages. As for the range of support the payee is entitled to, this may be based on individual factors in the marriage, such as the length of the relationship, the circumstances regarding the children and how dependant the spouse was. There are two tests to determine the duration of support using the ‘with child’ formula, the Length of Marriage Test, generally used for longer marriages and the Age of Children Test, generally used for shorter marriages. The test to be used will be the option that is most advantageous to the payee.
Support orders are not always indefinite. There are circumstances that may allow for a variation of a spousal support order. For example, spousal support orders can be modified if one party re-marries, the payee or payor gets a new job, or the children are no longer dependant. Such variation orders may apply for both quantum and duration and may be brought by application when there has been a change in circumstances with either party. In comparison, an application may be brought for a review order, which are temporary and are intended to set spousal support at a certain amount and re-visit the quantum and duration at a later date. A review order may be used if you know that dependent children will be finishing high school on a certain date or if you know that the payee spouse will be attending school that will give them access to a good job. The difference between a review order and a variation order is that under the review order, there does not have to be a change in circumstances in order to apply for review.
Articles written by Stacey Staios:
Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Ask A Lawyer!
Recently, Ryan was able to sit down (virtually) with Matt McKeever, a Real Estate Investor and Entrepreneur to answer questions that viewers, like you, had about the real estate market and incorporating a real estate business.
Check out the information packed videos below!
Canadian Real Estate Lawyer Advice For First Time Buyers
Should I Incorporate My Real Estate Business? | Ask A Real Estate Lawyer
Is Wholesaling Real Estate In Canada Legal?
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Understanding Construction Liens
Author: Sarah Nadon – Law Student
Edited By: Ryan Carson
On July 1, 2018, the Ontario Construction Lien Act changed its name to the Construction Act. This name change allowed the Act to represent a broader scope of topics. While much of the Act remained untouched, several key components were changed. These amendments now drastically change the scope of the law governing the construction industry.
There are a number of factors that come into play when determining when a construction lien expires. There are three important time frames to consider:
Preservation of lien deadline;
Perfection of lien deadline;
Two-year limitation period to set action down for trial.
Preservation
The initial step to pursuing a construction lien claim is to preserve the construction lien by registering it against the title of the land. While most liens need to be registered, there are certain circumstances where the lien needs to be served.
In order to calculate the deadline for preserving a lien, it must be determined whether the individual was a contractor or another person (ex. supplier, subcontractor). If the individual is in fact a contractor (a person who supplied directly to the owner), the lien expires 60 days after the publication of the Certificate of Substantial Performance of its contract or the date of which the contract was completed or abandoned, whichever occurs first. Previously, in the old Act, this was a 45-day period.
Perfection of a Lien
Registering a Claim for Lien, preserves the lien and temporarily extends its life. A preserved lien has 90 days to be perfected or else it will expire. The lien must be perfected 90 days from the last day on which the lien could have been preserved. The time to perfect a lien was extended from 45 days to 90 days, giving the individual 150 to register and perfect a lien.
Pursuant to subsection 36(3) of the Act, if the lien attaches to the property, the lien is perfected by issuing a Statement of Claim and by registering a Certificate of Action on title of the property. If the lien does not attach to the premises, such as Crown land or a railroad crossing, it is perfected by starting an action to enforce the lien. In some circumstances a lien may be perfected by sheltering under the perfected lien of another claimant.
The action is started when the Statement of Claim is issued in a court office in a country in which the property is located. Unlike the Rules of Civil Procedure, which requires that a Statement of Claim be served within a six-month period, a lien must be served within 90 days of the claim being issued.
Due to the new act, lien claims with a value under $25,000 will be referred to the Small Claims Court. The objective of this is to make the court process less expensive and easier for the claimants to resolve their disputes.
Two Year Limitation Period
Once a lien is perfected within the time limits set out in the Construction Act, it is important to note the two-year limitation to set the action down for trial. If the lien is not set down for trial within the two-year limitation period, a motion may be brought to declare the lien as expired and to have the action dismissed.
Articles written by Sarah Nadon:
Force Majeure Determining Which Business Venture is Right for You! Kawhi Leonard Loses Copyright Lawsuit against Nike
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Disability Accommodation in the Workplace
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
Employers in Ontario have a duty to accommodate employees in regards to any protected grounds covered under human rights legislation. Accommodation is a term used to describe the duties of an employer to give equal access and opportunity to individuals who are protected under the Ontario Human Rights Code. Although there are many protected grounds, disability will specifically be addressed in this article.
Disability covers quite a broad range of conditions, which include but are not limited to, physical, mental, developmental, hearing or vision impairments and learning disabilities. These may be visible or invisible and may have been present from birth, caused by an accident or developed over time.1
According to the Government of Ontario, roughly 15.5% of Ontario’s population has a disability.2 The Accessibility for Ontarians with Disabilities Act (AODA) was introduced in 2005 to improve accessibility standards for Ontarians with physical and mental disabilities while making accessibility a regular part of finding, hiring and supporting employees with disabilities. The AODA is made up of five standards, and includes requirements that organizations must meet, which are specific to the organization’s type and size. These five standards include information and communications, employment, transportation, design of public spaces and customer service.3 These standards require organizations to create and implement policies and practices that identify and remove barriers that people with disabilities may face, specifically in the workplace.
Employers have a duty to accommodate the needs of individuals with disabilities to the point of undue hardship to ensure that an employee has equal access to any opportunities and benefits available. This duty to accommodate places puts onus on the employer to remove any barriers an employee may face when trying to access such opportunities and benefits. This standard requires an employer to take every measure to provide the accommodation without causing undue hardship to the business. Otherwise, the employer must demonstrate that they are unable to reasonably accommodate the employee without causing such undue hardship, which means they must provide an employee with the requested accommodation unless it would cause serious hardship to the company. The Ontario Human Rights Code sets out three considerations when assessing whether an accommodation would cause undue hardship, which include cost, outside sources of funding and health and safety requirements.4 No other consideration may be considered when assessing undue hardship, such as business inconvenience, employee morale or third-party preference.5
For example, if an employee requests an accessible washroom, it is not enough for the employer to claim undue hardship just because it will add additional costs. For an employer to claim undue hardship in this case, they would have to prove that providing the accommodation would be so extreme that it would interfere with the operations of the business. In certain cases, providing an accommodation will not add any additional costs. Often, the accommodation only requires policy changes and flexible rules, which may cause an inconvenience but will not be a factor in considering undue hardship.
By removing the barriers that individuals with disabilities face in the workforce, the AODA intends to maximize both the inclusivity of our society and the value that each employee contributes to the economy. An inclusive workplace is one where everyone is treated with respect and becomes a place of equal opportunity.
Disability covers quite a broad range of conditions, which include but are not limited to, physical, mental, developmental, hearing or vision impairments and learning disabilities. These may be visible or invisible and may have been present from birth, caused by an accident or developed over time.1
According to the Government of Ontario, roughly 15.5% of Ontario’s population has a disability.2 The Accessibility for Ontarians with Disabilities Act (AODA) was introduced in 2005 to improve accessibility standards for Ontarians with physical and mental disabilities while making accessibility a regular part of finding, hiring and supporting employees with disabilities. The AODA is made up of five standards, and includes requirements that organizations must meet, which are specific to the organization’s type and size. These five standards include information and communications, employment, transportation, design of public spaces and customer service.3 These standards require organizations to create and implement policies and practices that identify and remove barriers that people with disabilities may face, specifically in the workplace.
Employers have a duty to accommodate the needs of individuals with disabilities to the point of undue hardship to ensure that an employee has equal access to any opportunities and benefits available. This duty to accommodate places puts onus on the employer to remove any barriers an employee may face when trying to access such opportunities and benefits. This standard requires an employer to take every measure to provide the accommodation without causing undue hardship to the business. Otherwise, the employer must demonstrate that they are unable to reasonably accommodate the employee without causing such undue hardship, which means they must provide an employee with the requested accommodation unless it would cause serious hardship to the company. The Ontario Human Rights Code sets out three considerations when assessing whether an accommodation would cause undue hardship, which include cost, outside sources of funding and health and safety requirements.4 No other consideration may be considered when assessing undue hardship, such as business inconvenience, employee morale or third-party preference.5
For example, if an employee requests an accessible washroom, it is not enough for the employer to claim undue hardship just because it will add additional costs. For an employer to claim undue hardship in this case, they would have to prove that providing the accommodation would be so extreme that it would interfere with the operations of the business. In certain cases, providing an accommodation will not add any additional costs. Often, the accommodation only requires policy changes and flexible rules, which may cause an inconvenience but will not be a factor in considering undue hardship.
By removing the barriers that individuals with disabilities face in the workforce, the AODA intends to maximize both the inclusivity of our society and the value that each employee contributes to the economy. An inclusive workplace is one where everyone is treated with respect and becomes a place of equal opportunity.
Articles written by Stacey Staios:
Estate Planning: A How to Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Accessibility for Ontarians with Disabilities Act 20052 Government of Ontario Handbook for Accessible Employment
3 Accessibility for Ontarians with Disabilities Act 2005
4 Ontario Human Rights Commission
5 Ontario Human Rights Commission
Force Majeure
Author: Sarah Nadon – Law Student Edited By: Ryan Carson
On March 11, 2020, the World Health Organization deemed the outbreak of Covid-19, or more commonly known as the coronavirus, a global pandemic. Many provinces entered into a state of emergency, office buildings closed, and many people were forced to work from home. Covid-19 began disrupting everything from travel to business operations.
Force majeure is a standard clause in contracts that allows both parties to be freed from liability or obligation when circumstances arise that are beyond the control of either party. These events can include war, pandemics, or an event described by the legal term act of God.
A well-expressed definition of a force majeure is found in the Supreme Court of Canada decision of Atlantic Paper Stock Ltd. v St. Anne-Nackawic:
“An Act of God clause or a force majeure clause … generally operates to discharge a contracting party when supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected something beyond reasonable human foresight and skill”.1
“An Act of God clause or a force majeure clause … generally operates to discharge a contracting party when supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected something beyond reasonable human foresight and skill”.1
During the current Covid-19 pandemic, many people are unable to meet and perform their obligations. Does this automatically mean that the doctrine of force majeure excuses all obligations?
The short answer is no. In order for one’s obligations and duties to be excused by force majeure, the contract of the individual must have an applicable force majeure clause. Even if a force majeure clause is present, most are drafted broadly so that parties have to argue what events fall under the clause. Contrary, some clauses provide a long list of events that fall under force majeure. Many clauses indicate “acts of God” however, there is very little case law that supports what an act of God is.
The first question that needs to be asked is whether the force majeure event directly impacted the individual’s ability to perform their obligation and duties. A well-drafted force majeure clause should include a requirement that the party invoking the clause provide written notice of the force majeure to the other parties included in the contract. If the force majeure clause is relied upon, the party claiming force majeure will be required by the contract to give notice that the clause is being invoked as soon as they become aware that they plan to rely upon that clause. If for any reason, there is no specific notice period, they must provide notice that is reasonable.
The short answer is no. In order for one’s obligations and duties to be excused by force majeure, the contract of the individual must have an applicable force majeure clause. Even if a force majeure clause is present, most are drafted broadly so that parties have to argue what events fall under the clause. Contrary, some clauses provide a long list of events that fall under force majeure. Many clauses indicate “acts of God” however, there is very little case law that supports what an act of God is.
The first question that needs to be asked is whether the force majeure event directly impacted the individual’s ability to perform their obligation and duties. A well-drafted force majeure clause should include a requirement that the party invoking the clause provide written notice of the force majeure to the other parties included in the contract. If the force majeure clause is relied upon, the party claiming force majeure will be required by the contract to give notice that the clause is being invoked as soon as they become aware that they plan to rely upon that clause. If for any reason, there is no specific notice period, they must provide notice that is reasonable.
The careful drafting of a force majeure clause will note what type of contract it is placed in and will help minimize potential litigation. A Force Majeure clause is put in contracts to protect parties from events that do not typically occur during everyday life; therefore, when drafting a force majeure, it should address three specific questions:
• How broad should be the definition of triggering events;
• What impact must those events have on the party who invokes the clause; and
• What effect should invocation have on the contractual obligation? 2
• How broad should be the definition of triggering events;
• What impact must those events have on the party who invokes the clause; and
• What effect should invocation have on the contractual obligation? 2
Again, when drafting the clause, many lawyers opt to use broad lists while others rely on all-inclusive and descriptive events. The force majeure clause is more than a boilerplate as it helps protect parties to a contract and avoids putting parties at risk of having a court interpret a contract. Even if a contract does not have a force majeure clause, there are still circumstances where the principle of frustration may apply.
Articles written by Sarah Nadon:
Determining Which Business Venture is Right for You! Kawhi Leonard Loses Copyright Lawsuit against Nike
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Atlantic Paper Stock Ltd v St Anne-Nackawic Pulp and Paper Co, [1976] 1 SCR 580, [1976] 1 RCS 580
2 Atcor Ltd v Continental Energy Marketing Ltd, [1996] AJ No 131, [1996] 6 WWR 274, 38 Alta LR (3d) 229, 178 AR 372, 25 BLR (2d) 1, 61 ACWS (3d) 75
The Prudent Real Estate Investor’s Legal Checklist
Author: Warren Gilmore – Law Student Edited By: Ryan Carson
Real estate investing has long been a lucrative business practice. Whether you are new to the business, or already have multiple properties, it is important to make sure that you have the necessary legal safe guards in place. In order to best protect yourself and your business, there are many important legal steps that the prudent real estate investor should investigate and consider implementing into their business operations.
Incorporation
Incorporating your business requires transitioning your sole proprietorship in the business into a company that is recognized formally as a corporation. When a company incorporates the business becomes its own legal entity, separate from the individuals that that make up its ownership. Incorporating also helps to protect the personal assets of the individual business owners in the instance that judgements or other enforceable debts are registered against the company.
In Ontario, incorporations are governed by the Business Corporations Act, 1990. This act requires that all shareholders within the corporation are to be registered as such. Shareholders are those individuals who make up ownership of the company. When the corporation is created, a specific number of shares must be established and issued proportionately to the individual shareholders. The act further requires that a corporation must have at least 1 shareholder, but no more than 50.
All of these advantages of incorporating apply to the practice of real estate investing. Considering the value of real estate, once your operation reaches a certain size it makes a tremendous amount of sense to protect yourself and your partners by incorporating.
JV Agreements
A Joint Venture Agreement works to join together two or more parties, either individuals or corporations, who desire to enter into a limited business arrangement or a single project. The most common example of this arrangement we see in the real estate world involves parties coming together to combine their resources in order to invest in property. For example, Party A and Party B come together in order to purchase a multi-unit rental property. All parties to such an arrangement agree to pool together their resources and to share in the overall performance of the project, including any profits and losses.
Joint Venture Agreements are intended to clearly outline the responsibilities and expectations of the parties as they pertain to the current project. The agreement should further outline the specifics of the project itself, the contributions, both operational and financial, and the specific obligations of each party.
If you find yourself investing with other individuals, or even other companies on individual projects, a Joint Venture Agreement should be considered. An experienced lawyer can help to ensure that all your concerns are clearly and effectively addressed in order to best protect your interest in a given project.
The Transactional Process
If your business operations involve multiple purchases and sales of properties, having an experienced real estate lawyer that you know and trust is another essential tool to have in your company toolbox.
When purchasing or selling a property, a real estate lawyer will help to represent your interests in the particular transaction. They will communicate directly with the lawyer representing the other party to the transaction. They will work to resolve any issues that might arise between the parties before, during, and after the transaction has closed. This might involve the fulfillment of particular conditions to the agreements, or any breaches to the agreement that may arise.
Additionally, a real estate lawyer will help you to navigate many potential speed bumps that often present themselves when purchasing real property. A real estate lawyer will work to discover any potential title issues that might exist on a prospective property and take the necessary steps to resolve them.
Further, depending on the nature of the investment property itself a real estate lawyer can help you put into place other legal safeguards for your investment. For example, if investing in a rental property, a real estate lawyer will not only be able to assist you with the closing of the transaction, but also to put in place the necessary rental agreements with tenants renting the property.
Whatever the particulars of any given real estate investment, it is essential to have an experienced real estate lawyer in your corner.
In summary, the nature of investing in real estate requires a significant degree of due diligence, as large sums of money are involved. The legal components mentioned here are all essential aspects of the overall process of ensuring that your business maintains an optimal level of legal protection.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
.Non-Resident Speculation Tax
Author: Warren Gilmore – Law Student
Edited By: Ryan Carson
In 2017, the province of Ontario implemented a specific tax on foreign real estate buyers, the Non-Resident Speculation Tax. The tax works to impose greater financial burdens on foreign real estate purchasers, providing for a tax rate of 15% in addition to the purchase price of residential property. The tax applies specifically to residential properties located in the Golden Horseshoe area, effective as of April 21, 2017. Agreements of Purchase and Sale that were signed prior to this date, and that were not assigned to another party after this date, are not subject to the Non-Resident Speculation Tax.
The tax is intended to deter foreign buyers from purchasing residential property in an effort to moderate the skyrocketing housing market in the Golden Horseshoe area. Foreign investors have long found the housing market in these areas of Ontario to be a safe and attractive place to invest their foreign dollars. This practice has caused the value of homes in these areas to inflate, somewhat artificially. As a result, residential property in these areas are often out of reach for the everyday local residents of these communities. The Non-Resident Speculation Tax helps to relevel the playing field, and works to moderate residential real estate prices, making them more affordable for local residents.
The Non-Resident Speculation Tax is applied to foreign buyers, any individuals who are neither Canadian Citizens, nor Permanent Residents. The tax is also applicable to foreign corporations, those with corporate nerve centers outside of Canada.
Taxable trustees are also subject to the Non-Resident Speculation Tax. This typically includes trusts which have one or more trustees considered to be a foreign entity, or if the direct beneficiary of a trust is an individual considered to be a foreign entity.
However, purchasers who have been subject to this tax may be entitled to a rebate in the instance that they meet particular exempting conditions provided for in the legislation. These exemptions include:
If the buyer within 4 years of the real estate purchase closing date, becomes a Canadian Citizen or a Permanent Resident.
If the buyer is also a full-time student at an educational institution, at a campus located in Ontario for at least 2 years.
If the buyer has been legally employed in Canada for a least 1 year.
Individuals applying for one of these exceptions are also required to abide by the following conditions:
The buyer must hold title to the subject property either exclusively, or exclusively between themselves and a spouse.
The buyer is required to occupy the subject property as their primary resident for a minimum of 60 days beyond the closing date of the transaction.
The buyer must submit their application for an exception rebate no longer than 4 years after the closing date of the transaction.
The Non-Resident Speculation Tax may even have an effect on Canadian citizens in certain respects. If residential real estate is purchased through a partnership, where one of the partners is considered a foreign entity, the entire purchase will still be subject to the 15% tax. The tax is not imposed proportionality to the particular interest held by the foreign entity. In other words, if any member of a partnership is without an exemption to the tax, the tax will be fully applicable to the entire transaction.
Should you find yourself in a situation where the prospective purchase of residential property may be subject to the Non-Resident Speculation Tax, it is imperative that you meet with a lawyer to determine your potential eligibility for any of these exemptions. At Carson Law we can help you navigate these concerns, in part of an overall plan to best protect your interests.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
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