Civil Litigation

1.  I want to sue someone. Do I need a lawyer?

You do not need a lawyer if you are taking an action in the Ontario Court of Justice General Division Small Claims Court. This court has jurisdiction over claims valued at less than $6000. If your claim is more than $6000, or you are a corporation, you should have a lawyer as your claim is subject to the Rules of Practice of the Ontario Court General Division.

2.  What are the Rules of Practice?

These are rules which govern everything from the form of the claim to the filing, service, attendance at court and the required documents for court matters.

3.  Can I get a copy of these Rules of Practice?

Yes. Canada Law Book Inc. publishes an annual set of rules. The present edition is approximately 995 pages.

4.  If I sue someone, will I have to testify?

In almost all instances you will have to testify if you sue someone.

5.  Who will pay my lawyer?

If you are successful in your action the judge should award you what is known as party and party cost which will indemnify you from a large part of your solicitor client cost. However, it is your responsibility to pay your lawyer.

6.  How long does it take to sue someone?

The length of time for an action to be completed varies with each case. Not all cases go to trial. In fact less than 10% of them do. Most are settled during the course of the litigation without a trial.

7.  I have just been served with a claim. What do I do?

Above all do not ignore the claim. Within the body of the claim there is a sentence which warns you that unless you answer within a specific number of days, usually 20, judgement may be entered against you. Take the claim immediately to a lawyer.

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Corporate Commercial Law

1.  What are the advantages of carrying on business through a corporation?

Most people incorporate to limit their personal exposure to business debts and liabilities. In the absence of personal guarantees or other personal involvement, corporate indebtedness will not extend to investors personally. This is to be contrasted with sole proprietorship and partnerships where business debts can be satisfied out of both business assets and other personal assets.

Other reasons for incorporating include provision of a framework within which investors can operate, tax and business advantages, and, to a degree, a more commanding presence.

2.  When should I incorporate?

The answer to this question depends on the principal reasons for incorporating. If the intention is primarily to limit liability, incorporation at an early stage is warranted. Conversely, proprietorship allows business expenses to be written off against other income for tax purposes. Accountants often recommend that profitable businesses merit incorporation and business which operate at a loss do not – unless losses will be so great that limitation of liability becomes of paramount concern.

An existing business can be "rolled over" to a corporation without tax consequences if strict rules are followed. An accountant’s advice is of fundamental importance in this case. Incorporation by itself is not sufficient if the business is not transferred to the corporation. Clear entries in the minute book are required to demonstrate that the corporation has taken over operation of such businesses.

3.  How long does it take and how much does it cost to incorporate?

Simple business corporations with a number name can be formed and be ready for operation in one day for less than one thousand dollars in fees and disbursements. More complex business corporations require more time for name checks, establishment of preferences and limitations on share capital, shareholder rights, and limitation of the business that the corporation can conduct.

4.  How do I finance my corporation?

Corporations can sell shares, borrow money, or retain earnings. Loans made to corporations by their shareholders can be secured by mortgage to claim priority for payment over unsecured creditors. An accountant’s advice is of paramount importance in deciding how to finance the corporation.

5.  How do some investors manage to start up business immediately after bankruptcy?

A business "revival" rising from a failed venture is most commonly accomplished through foreclosure of a security interest in a corporation’s assets. Banks usually require security against a corporations plant and equipment. If a corporation is unable to pay it’s debts as they become due, a secured party can foreclose on its security and thereby cut out unsecured creditors. Shed of debt, such new ventures generally perform remarkably well, often to the chagrin of the unpaid creditors.

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Criminal Law

1.  Am I entitled to speak to a lawyer when I am stopped on the street or in my car?

Without exception, yes. However the question is still "open" whether a "cell phone" call is allowable or must you wait to arrive at headquarters. Either way before answering questions a lawyer’s advice is obtainable.

2.  How do I retain a lawyer?

Simply by calling a lawyer and asking his help or advice you allow him, if he accepts to help or advise, to become your lawyer. Later a more formal arrangement usually in writing and probably involving some payment or agreement to pay money will be arrived at.

3.  What if I can’t afford one?

Often, timing is the problem. Almost all lawyers will arrange monthly payments. Your Union or Federation or employer may wish to defend you. Some companies and unions have insurance that pay legal fees. Finally if you are very poor with a serious matter outstanding Legal Aid may be possible.

4.  When should I call a lawyer?

The earlier you call the better. Preferably if you even think you may about to be part of a police investigation, call then. Much of the best work a dentist does is prevention. So too a lawyer.

5.  Do I have basic constitutional rights and how do I know if they have been violated?

Yes you have rights under the Charter of Rights. Because they are subject to interpretation by court decisions and because they are situational, i.e. one section begins "if you are charged…" a lawyers help will point out your rights in that situation is essential.

6.  Does a police officer have the right to search my car for a Highway Traffic Act violation?

No search is permitted by the Highway Traffic Act. However other acts dealing with weapons, drugs, or contraband may allow search especially if the sought article is "in plain view". Call your lawyer, quickly.

7.  Does a police officer have the right to search my person or my purse without serious cause?

No. But, if a proper reason for arrest can be shown, e.g. Criminal Negligence, that arrest may include a search of your person. The purse is a little more sacrosanct.

8.  Can I challenge a police officer’s arrest or search?

Yes; you should state "I do not consent to your search". That is sufficient. If the search continues do not get into a fistfight with the officer but continue to say that you do not consent.

9.  What is the effect of a wrongful arrest or search upon my charge?

All evidence found in the wrongful search or arrest or following such wrongful police conduct may be excluded by a Judge.

10.  What effect do threats and promises made to me by the police have upon my statement?

Only statements that are voluntarily given are admissible in court. Thus inducing a statement by threats or promises will waste the statement.

11.  Must I submit to the police’s request for finger printing and photographs?

If you are arrested you must submit to fingerprinting and being photographed. That is being photographed for identification of criminal purposes, not for police or newspaper publicity.

PRE-TRIAL DETENTION

12.  If arrested can I get bail?

Usually bail will be allowed.

13.  What if I have no money or property?

Unless you live far away, have a serious criminal record or are charged with a very serious crime neither money nor property is an issue. Even then having a friend or relative sign bail with you usually suffices.

SPECIFIC OFFENCES

14.  Is it true that once charged I might as well plead guilty?

Approximately half of all impaired charges have one or more defenses available. Times, identity, testing of and by machines, even an outright contradiction of police evidence often succeeds.

15.  How do I know if I have a defense?

Unless you seek a lawyer’s assistance you probably cannot know if you have a defense.

16.  What are some of the civil and criminal consequences to being found guilty of impaired driving, blowing over .08 or refusing to provide a Breathalyzer sample?

To be found guilty of impaired driving, refusing to blow, or driving with more that 80 mg. of alcohol per 100ml. blood will likely cause your insurance rates to about triple for the next five years. If an accident occurred your wage loss even if the accident was not your fault will not be paid, nor will your insurer pay the damage lost to your vehicle.

17.  Drugs were found in the car in which I was a passenger. Does this mean I am automatically guilty?

To be found guilty of possession of drugs or stolen goods or contraband requires knowledge the goods are there and some measure of control on your part. Certainly automatic guilt does not follow.

18.  I am guilty of the crime for which I have been charged. Why do I need a lawyer?

We have probably all been driving in excess of posted speed limits. That does not mean we should rush down to hand in our driver’s license to the local police. So too a charged crime may well not impel you to plead guilty. "Not guilty" simply means, "prove your case". Quite often for bad wording, time limits or general lack of proof you may not go to jail, lose your license, or be fined.

19.  I am accused of sexually assaulting a relative 25 years ago. It’s her word against mine. I don’t need a lawyer right?

The 25-year history makes this kind of case the hardest of all to win. In 25 years the relative may have honed her presence and speaking skills to where she is very believable. On the other hand your memory may have failed, certainly your daily records and relatives who might have helped you have likely disappeared. Also, this is the kind of case where it is of utmost importance to have early legal assistance. Offhand comments to police about "I don’t remember doing that" or "I was drinking heavily in those days" will, up against any consistent story by the relative probably prove fatal to your case.

SENTENCING

20.  Are there alternatives to jail or fines?

More than ever before there are numerous alternatives to jail and fines. The alternatives to such simple penalties would require several pages of comment.

21.  Are there special programs in force from time to time and how do I know if I qualify?

Without the assistance of a lawyer it is doubtful you could properly access various programs. Those programs vary from district to district even within the same province.

AFTER THE PROCEEDINGS ARE OVER

22.  Once sentenced, can I get my fingerprints and photographs back?

If sentenced you do not get fingerprints and photographs back. They remain on file with central police registries. Even if acquitted you will not get such identification items back but you may require their destruction, usually at some cost to you.

23.  Can I get my criminal record expunged?

Criminal records may be "wiped out" by pardon applied for after two years in a minor matter and five years in more serious cases.

24.  Will a criminal conviction affect my employability or my ability to travel to another country, e.g. to go to Florida?

Criminal convictions may well prevent going to any foreign country even the United States. Further "bonding" which is required in many occupations may be impossible with a record.

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Entertainment and Sports Law

1.  My child is a good athlete. Why should I get a lawyer for him?

Sports has become a large business. Good athletes are recruited very young. Often, the first contract can determine personal success for several years and sometimes for the rest of a player’s career. It is in negotiating and drafting these contracts that a lawyer will make a difference. He can make sure that what you sign today will give the athlete future flexibility which will adapt to the young athlete’s development.

2.  At what age are athletes recruited?

Different sports have different ages for recruitment. However, they can vary from 11 to 12 years of age in some sports. In hockey this generally ranges from 16 to 17 years of age.

3.  What is the role of the parent?

It is the parent’s responsibility to ensure the athletes get the best available representation before the young athlete commits himself. More often than not, the parents will have to sign a contract also. It is important that the contract allows for future changes and be customized to the need of the young athletes and the parents.

4.  Are there any pit falls I should be worried about?

Parents and young athletes must be worried about the fine print of all contracts. No two contracts are alike. Every word in a contract is there for a purpose and has a meaning. The parent and young athlete must have the confidence to understand the terms of the contract and not accept an agreement, which although acceptable today, becomes an unbreakable indenture for years to come.

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1.  My spouse has left me. Can I get a divorce?

Yes. You may start your divorce petition immediately. However, the divorce itself will not be ordered until one year after the date of separation.

2.  Do I need a divorce to settle my rights and obligations with my spouse?

No, you do not. Most rights and obligations can be resolved by way of a separation agreement or an application under the Family Law Act. A divorce petition has only the advantage of dissolving the marriage, permitting the parties to re-marry and be free of traditional marriage responsibilities.

3.  My spouse won’t give me a divorce or agree to sign anything. Is there something that can be done?

Yes. It is not up to your spouse to agree or disagree about your rights. Your rights to remain married, to property, to support or custody of children are matters of law and are not dependent upon your spouse’s consent or acquiescence.

4.  If I leave my spouse, I will lose everything, right?

No. However there are very practical reasons why you should prepare and organize your departure. Such a move should not be done without legal advice.

5.  Is there an easy way that I can determine the amount of support I will have to pay (or receive) for spousal support or child support?

Spousal support is determined by the need of the applicant as established by a detailed budget and the ability of the other spouse to pay also established by a detailed budget. Child support on the other hand is fixed by the Child Support Guideline for Ontario. These guidelines have a limited measure of flexibility. The guidelines can be found under "resources".

6.  What is the difference between sole custody, joint custody and shared parenting?

Sole custody is a situation where one parent is given the sole custody of a child. The non-custodial parent still has limited rights to information about health and education of the child. In a joint custody situation both parents retain custody of the child with equal rights in relation to the child. In both cases the parents must arrange for the physical residence of the child and access to the other parent. Shared parenting is a new concept that is not yet law but is being recommended by a joint committee of the Senate. This concept focuses on responsibility on parents towards their children rather than their rights.

7.  Can a parent who has sole custody of children change the children’s surname without consent of the other parent?

Yes. Unless the parents have agreed not to change the name without the consent of the other parent or there is a court order limiting such right the name may be changed.

8.  I have been living in a common law relationship for 7 years. This is the same as being married, isn’t it?

No it is not. Although common law relationships are now seen to be almost the same as marriage for most matters such as support, pension benefits and custody matters, equalization of property upon separation are very different. A married spouse has all of a common law spouse’s rights to a division of property plus the right to equalize net family property.

9.  Upon separation, married spouses divide all their property 50-50%?

No. Married spouses are entitled to an equalization of net family property. This is the result of a complex calculation which excludes pre-marriage acquired property, certain gifts received during the marriage and a number of other specific property. Also there are special rules regarding the matrimonial home.

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Motor Vehicle Accidents

1.  I have been involved in an automobile accident. What do I do?

First and foremost you must notify your insurance and police if there is an excess of $800 damage or personal injury.

2.  I will lose income from my job; who will compensate me?

This question is more complex than it seems. The following is a rule of thumb. For accidents after November 24^th, 1996, it is the insurer that covers you. If you are the owner and operator of a motor vehicle involved in the accident, your insurance. If you are a passenger or operator and you have your own automobile insurance, your insurance. If you are a pedestrian and you have your own insurance, your insurance. If you have no insurance the insurance of the vehicle which struck you or in which you were a passenger.

3.  Can I sue for my personal injuries?

Yes you can. However, there is a deductible of $15 000 to principal claimants and $7 500 for derivative claims and a verbal threshold.

4.  How do I know if my claim is above the deductible or the verbal threshold?

This is not something you can access yourself. You must get legal advice on this issue.

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Real Estate

1.  Should I meet with my solicitor before signing an Agreement of Purchase and Sale?

It is always advisable for either a Vendor or a Purchaser to consult with his or her lawyer prior to executing a binding Agreement of Purchase and Sale. The lawyer may well be able to point out concerns that should be addressed before the contract becomes binding on the parties. It is often easier to address these problems or concerns during negotiations then after a binding contract has been entered into.

2.  I’m selling my house, what type of services will my lawyer perform on my behalf?

Generally, the Vendor’s lawyer is involved in the preparation of the various documentation necessary to convey title to the Purchaser. The Vendor’s lawyer will obtain and review a copy of the Agreement of Purchase and Sale. He will obtain particulars of any mortgages or other encumbrances to be discharged. He will also arrange for meter readings with various utilities that service the property.

Upon receiving a letter outlining the specific requirements of the Purchaser applicable to the transaction, he will prepare draft forms of the various documents, including a draft Transfer/Deed of Land, Statement of Adjustments, Statutory Declarations, Directions and Undertakings as appropriate. The Vendor’s lawyer will meet with the Vendor for the purpose of reviewing and executing any and all required documentation.

On the closing date, the Vendor’s lawyer will attend to the finalization of the transaction including delivery of all executed documentation and keys in exchange for receipt of the agreed upon purchase price. Subsequent to the closing, he will disburse the sale proceedings, paying to any mortgage encumbrancer the amounts required to discharge their mortgage, paying any applicable arrears of utilities; paying real estate commission (if any); and paying to the Vendor the balance of the sale price. He will notify the Assessment Department of the change of Ownership. He will also report in detail to the Vendor with respect to all aspects of the sale reminding the Vendor to cancel insurance to the property effective the date of sale and also reminding the Vendor of the Vendor’s responsibility to pay final bills for utilities to the date of completion of the transaction. He will arrange to receive and register a discharge of the paid off Charge/Mortgage.

3.  If I’m buying a house, what type of services will my lawyer perform on my behalf?

The traditional responsibilities of the Purchaser’s solicitor is the explanation of the transaction to the Purchaser and the searching of title and certifying of such solicitors opinion of title to the Purchasers and Mortgagees. The Purchaser’s solicitor will discuss with the Purchaser the various options available to a Purchaser to protect the Purchaser’s interest, including the Purchaser’s option to rely upon the solicitor’s title opinion or obtain title insurance and obtain the Purchaser’s instructions in this regard thereby defining such solicitor’s responsibilities.

The Purchaser’s solicitor will cause to be conducted a search of title to the property as well as numerous other searches with various authorities exercising jurisdictions over the purchased property (i.e. Building Control, Zoning Departments, Health Unit, Conservation Areas, Flood mapping, Fire Department, etc.) depending upon the nature of the Purchaser’s solicitor’s retainer.

The Purchaser’s solicitor will usually also be retained on behalf of the mortgage lender, if any, to prepare and register any proposed Charge/Mortgage to the property.

Additionally, the Purchaser’s solicitor will arrange for meter readings with all public utilities. He will also confirm the Purchaser has made satisfactory insurance arrangements. He will set out in writing to the Vendor’s solicitor the various documents, affidavits, declarations and undertakings that he requires from the Vendor as a condition to the completion of the transaction.

Upon receiving the Vendor’s response to such demands, including drafts of the various documents, he will meet with his client and review it. At that time he will have the Purchaser execute mortgage documentation, the required land Transfer Tax Affidavit, and any and all Charges/Mortgages and other documents that are required to be signed by the Purchaser. He will also arrange for receipt of the purchase funds from the Purchaser and the Mortgage Lender.

On the closing date, the Purchaser’s lawyer will arrange for the completion of the transaction at the appropriate Land Registry Office. Upon receiving the executed Transfer/Deed of Land and other ancillary documentation and upon registration of the Transfer/Deed of Land, (as well as the Charge/Mortgage, if any), the Purchaser’s lawyer will deliver a certified cheque for the purchase price, as adjusted, to the Vendor’s lawyer.

Subsequent to closing, the Purchaser’s lawyer will report to his client enclosing copies of any and all relevant documentation. At the same time, he will report to any mortgagee of the property, again enclosing copies of any and all appropriate documentation.

To the extent that the Vendor or the Vendor’s solicitor has undertaken any action to be completed subsequent to closing (i.e. discharge the Vendor’s mortgage), the Purchaser’s solicitor shall follow-up on such undertakings.

4.  What are the usual adjustments?

The purchase price is often stated to be "subject to the usual adjustments". Usual adjustments include adjustments for the initial deposit, a pro-rata share of property taxes (School Board and Local Road Boards); mortgage principal if a mortgage is to be assumed; rents, prepaid rents and interest on prepaid rents, if applicable, GST (if applicable); etc. With respect to new construction, the Agreement of Purchase and Sale may provide for upgrades, the cost of which will be adjusted prior to closing.

5.  What is Land Transfer Tax?

Land Transfer Tax is a Provincial tax immediately payable to the Province of Ontario upon the completion of the transaction. The Land Transfer Tax is calculated as a percentage of the purchase price and is paid at the time of the registration of the Transfer/Deed of Land.

6.  What are disbursements?

Disbursements are monies expended by the Vendor’s solicitor or the Purchaser’s solicitor for and on behalf of their respective clients.

For Vendor’s, this is usually a nominal amount and includes the cost of registration of a Discharge of any Charge/Mortgage (i.e. $50.00), etc.

The Purchasers, however, incur more than a nominal amount in disbursement expenses, which is additional to the Purchaser’s solicitor’s fee. Disbursement expenses are incurred in searching title to the property and obtaining copies of the various registers and plans. Numerous government agencies charge fees for access to the information contained in their files (i.e. Building Controls, Zoning, Flood Mapping, etc.). The utility companies similarly charge fees for having the utility meters read and the accounts transferred into the name of the Purchasers. Title insurance, if applicable, would be a disbursement, as would the cost of a new survey to the property, if one is required.

On closing, the Purchasers will be required to pay registration costs with respect to the registration of the Transfer/Deed of Land, the registration of any Charges/Mortgages and the Land Transfer Tax. Please note that the Land Transfer Tax disbursement can be significant.

7.  What is a survey?

There are various types of surveys prepared by Ontario Land Surveyors. The term "survey" includes a full survey of lands with the location of all property corners marked and staked, as well as a building location survey with one or more corners monumented. What a Purchaser in real estate transaction generally requires is a building location survey clearly delineating the location of any and all existing buildings on the property in relation to the lot lines.

8.  When I purchase a home, will I need survey?

Usually a survey or title insurance is required when you purchase a new home. However, if an existing survey to the property exists clearly delineating the location of the existing buildings on the property in relation to the lot lines of the property and it can be established that there have been no changes made to the exterior of the existing buildings, a new survey may not be required.

9.  Who is responsible for the cost of a survey?

Unless otherwise agreed to in the Agreement of Purchase and Sale, the Purchaser is responsible for the cost of obtaining a new survey to the property. The standard Agreement of Purchase and Sale generally used merely requires the Vendor to provide a copy of any existing survey in his or her possession.

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Wills, Trusts, Estates, and Powers of Attorney

1.  My spouse and I hold all our assets jointly. Do we need a will?

Although joint property passes to the surviving joint tenant by right of survivorship, we would still recommend that you have a Last Will and Testament. Such Will should make provision for the division of your estate in the event that you and your spouse die more or less at the same time as a result of a common disaster, such as a motor vehicle accident. Such Last Will and Testament in addition to providing for the distribution of your estate could make provision for guardianship of any infant children and express preferences as to funeral arrangements.

2.  All of our assets are in my spouse’s name. Why do I need a will?

Assuming that you are the sole or primary beneficiary of your spouse’s estate, what happens if you survive your spouse but die within a relatively short period of time after his or her death? For example, your husband dies at the scene of a motor vehicle accident, and you succumb to injuries sustained in the same accident a short period of time thereafter before having had the opportunity of making your own Last Will and Testament. It may well be that you will inherit your spouse’s estate, but upon your death, since you have no Last Will and Testament, there is intestacy.

3.  What happens to my estate if I don’t have a Will?

In the event that you don’t have a Last Will and Testament, you are said to have died intestate. Your estates will be distributed in accordance with the statutory scheme for distribution set out in the Succession Law Reform Act, R.S.O. 1990, c.S.26. If you die leaving a spouse and child or children, your estate will be divided between such spouse and the child or children in the proportion established by such legislation subject to the spouse’s preferential share of the estate. If you have neither spouse nor children, the legislation sets out which next of kin will become the beneficiaries of your estate.

4.  What is a Personal Care Power of Attorney?

A Personal Care Power of Attorney is a legal document which when properly executed by an individual with the requisite legal capacity to make such document authorizes a person or persons named attorney to make decisions on behalf of such individual concerning the individual’s personal care, if and when such individual is incapable of making his or her own personal care decisions. Personal care decisions relate to the health care, nutrition, shelter, hygiene, or safety.

5.  Why do I need a Personal Care Power of Attorney? Wouldn’t my spouse be entitled to make personal care decisions on my behalf if I were to become incapable of making those decisions myself?

The Health Care Consent Act alone will often give sufficient authority to make all the necessary health care decisions in respect to an incapable person’s treatment and in respect to his or her long term care in a publicly regulated facility (a charitable home for the aged, a municipal home, a rest home or nursing home). However, it will not give sufficient authority to make all the necessary personal care decisions for an incapable person who wishes to remain in his or her home or to live in a non regulated facility, such as a retirement home. A statutory substitution decision-maker such as a spouse or child has less rights and powers than a person with a power of attorney for personal care.

6.  What is a Continuing Power of Attorney for Property?

A Continuing Power of Attorney is a legal document which when properly executed by a grantor with the requisite legal capacity to make such a legal document authorizes the person or persons named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do, except make a will, and expresses the intention that such authority may be exercised during the grantor’s incapacity to manage property.

7.  Will my Power of Attorney made in Ontario be valid for my Florida home, lands or condominium?

Probably not. A Florida Power of Attorney for property must be done on a regulated form that is different from the standard forms used in Ontario.

8.  My spouse and I have named each other as Estate Trustees (Executors) in our respective Wills. Why do I need a Continuing Power of Attorney?

If you or your spouse were to suffer a stroke or otherwise become incapable, it may become necessary for the capable spouse to deal with the incapable spouse’s separate assets, or indeed the joint assets. The capable spouse may require access to the incapable spouse’s separate bank account for support for household expenses. Decisions may be required to be made with respect to Registered Retirement Savings or pension entitlements. The joint matrimonial home may have to be sold. Unless there is a validly executed Continuing Power of Attorney, there is no one available to sign on behalf of the non-capable spouse and a Court order would have to be obtained. The fact that the capable spouse is named as Executor of the Last Will and Testament of the incapable spouse will not be sufficient as the Will only speaks from the date of death of such incapable spouse. Hence such a valid Continuing Power of Attorney in such circumstances is essential.

9.  What does it mean to probate a Will?

Probate essentially means to satisfy a court that a certain individual is dead and that the document purporting to be the deceased person’s Last Will and Testament is indeed such person’s valid Last Will and Testament.

10.  When must an estate be probated?

Although the naming of an individual as the Estate Trustee, Executor and Trustee of a deceased person is effective from the date of death of such deceased person, it may be necessary to satisfy third parties that the deceased is, in fact, dead and the document is in fact the Last Will and Testament of the deceased. For example, the Land Registrar’s Office may require probate of the Last Will and Testament of a deceased before allowing any further dealings with the deceased’s lands and premises. Similarly, if the deceased owned stocks or bonds, the transfer agents for such stocks and bonds may require probate before they will effect a transfer of such stocks and/or bonds to either the Estate Trustee or the beneficiaries names in the Last Will and Testament.

11.  What happens if I die without a Will?

See the article,"Who Needs A Will?" by Murray Scott on the subject on the Articles page in the resources section.

12.  Why should I make a Power of Attorney for property?

A Power of Attorney may never be used, in contrast to a will, which will most assuredly come into play at some point. Decisions to be made by an attorney are much the same as those to be made under a will; guarding assets, paying bills, and ensuring protection of capital. Substitute decision-makers can be appointed by the Court, but there is no designated preference between candidates as is the case on intestacy. The substitute decision-maker’s powers will be restrictive. Determination of incapacity is, in the absence of a properly drawn power of attorney, difficult, time consuming, and expensive. Accidents and sickness do not always allow time to grant such powers at the last minute.

We recommend that the attorney (which, in Canada, is not synonymous with "lawyer") be granted more than the minimum powers allowed by law. Equally, we recommend that the power of attorney for property not become effective until a third party determines the donor to be incapable.

13.  Who should I choose as my Trustee or Attorney?

Estate trustees and attorneys are usually granted immense discretionary powers. The purpose in giving wide powers is to allow decisions which would be in keeping with the maker’s own wishes, but the person to whom the power is granted must be absolutely trustworthy. Most clients trust their spouses to make decisions in the event of incapacity, but such a choice is inappropriate where the spouse is not capable of managing money or property. Older children or close friends may be able to act as substitute decision-makers. Ultimately, the power to make financial decisions can be granted to corporate trustees who can be relied upon to make unemotional decisions.

14.  How do I apply for a refund of probate fees in light of the Supreme Court’s decision that such were improperly imposed taxes?

The particular case examined by the Supreme Court involved a payment of probate fees made under protest. Current newspaper reports indicate that the Province of Ontario is rectifying the deficiency by passing appropriate legislation. Claims for refund of probate fees would appear speculative in the circumstances.

15.  How long does it take to administer an estate?

Estate trustees are usually allowed the "Executor’s Year" to fulfil their functions. They are to find and gather in assets, realize upon same, pay debts, funeral, and testamentary expenses and distribute the estate among those beneficially entitled. Often, distribution is delayed until children reach the age of majority or a later stage in life. Sometimes funds are held in trust for a beneficiary’s lifetime and can only be distributed upon his or her death. Estate Trustees who are shown to be delinquent can be brought to account before a judge and, in cases where it is warranted, they can be stripped of their authority.

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Wrongful Dismissal

1.  I have just been let go from my work after 12 years of good evaluations. Is there anything I can do?

If you are covered by a collective agreement you should see your union representative immediately. If you are not a member of a union you may have been wrongfully dismissed and you may have a right of action against your former employer.

2.  If I take action, what will I get?