Our Real Estate law practice encompasses the following areas:
- Purchases, sales, and mortgages of residential, commercial, vacant land, and
- intra-family transfers
- estate transfers
- title insurance
- rights of way and easements
- resolving title issues
Real estate is usually the most significant investment a person makes in her lifetime.
Here is some general information to consider when buying or selling real estate.
It is not meant to be exhaustive or to be relied upon as professional or legal advice.
Chattels – these are moveable items of personal property that are not permanently
attached to the dwelling. They are not included in the Agreement of Purchase
and Sale unless specifically written in. Where it is questionable whether an item
is a fixture or a chattel, write it in to be sure it is included.
CMHC Mortgage Insurance – this is an insurance premium that is added to the amount
of your mortgage to insure against default. It is paid on closing out of the mortgage
proceeds. PST is payable on closing in addition to the amount of the insurance.
For more information, go to:
https://www.cmhc-schl.gc.ca/en/co/moloin/ . CMHC
also has some
Homebuying Tools – Calculators .
Conditions – An agreement of Purchase & Sale is often conditional on certain
events such as the buyer obtaining satisfactory insurance, home inspection and financing.
When drafting conditions, be explicit about the purpose of the condition, the time
frame for fulfilling it, whose benefit the condition is for, and whether the condition
can be waived if not fulfilled. Once all conditions are waived or fulfilled, the
Agreement is firm and binding. There can be consequences for breach of contract.
All agreements should be set out in writing.
Deposit – This is the amount of money paid when the offer is made. It can
be paid upon acceptance or on the occurrence of certain events or conditions such
as when all conditions or waived, in a specified time frame or on a certain date.
If the Agreement does not become firm and binding, the deposit is generally returned
to the Buyer without interest or deduction. The Buyer receives credit for the deposit
First Time Home Buyers - may be eligible for a Land Transfer Tax Rebate up to
a maximum of $2,000. To see if you are eligible, go to:
Fixtures – these are items that are permanently attached to the dwelling and are
included in the Agreement or Purchase and Sale unless specifically excluded.
Where it is questionable whether an item is a fixture or a chattel, write it in
to be sure it is excluded.
Heat – if the property is heated by oil or propane, the seller is responsible
for filling the tank prior to closing and the buyer reimburses the seller for the
cost on closing.
Land Transfer Tax - payable when you buy land or an interest in land. For
Mortgage – this is the security given by a property owner to secure repayment
of monies borrowed from a lender. It is registered against title to the property.
Consider the interest rate and whether it is variable or fixed. Determine the amount
of the principal and interest payments and the timing of the mortgage payments (monthly,
bi-weekly, bi-weekly accelerated, weekly). Determine the term, whether the mortgage
is open or closed for prepayment, any penalty, amount of registered mortgage versus
amount of funds being borrowed, additional terms or mortgage.
Property Taxes – These are apportioned on closing between the Buyer and the Seller.
If paying property taxes with your mortgage, find out if your lender deducts a hold
back for property taxes from your mortgage advance.
Water Supply – when the dwelling is serviced by a well, it is important that the
water be potable. For information on water testing, see:
. You also want to know if the well is dug or drilled or shared with adjacent
Some additional websites that may be helpful when considering real estate are
Estate planning is completed by an individual during his lifetime set out what
happens in the event of incapacitation or death. Individuals typically consult
with estate planning professionals during this process who include lawyers, accountants,
financial advisors, and funeral directors. Estate administration is the handling
of the individual's estate after his incapacitation or death.
Our firm has a large Estate Planning and Administration practice. We are here
to answer questions or concerns you may have in this important area of law.
Last Will and Testament - A Will
is a written document in which you (the "Testator") appoint someone to administer
your estate (the "Estate Trustee") and set out how you want your estate distributed.
It only takes effect upon your death. Reasons for executing a Will include:
- To address your personal wishes
- To avoid increased costs related to not having a Will
- To achieve your estate planning objectives
- To provide for the distribution of your property
- To establish trusts for tax reasons or other reasons
- To appoint a guardian for your children
- To protect your loved ones
You must be at least 18, subject to certain exceptions, and have proper mental
capacity to execute aWill. A holographic Will is a Will that
is entirely in the Testator's handwriting. It is valid and recognized under
the law as long as certain requirements are met. However, it is not recommended
due to the significant risk that the Testator's wishes will not be achieved.
If a person dies without having executed a Will, they are said to have died intestate.
Administration of the estate is then governed by Part II of the
Succession Law Reform Act .
If you are interested in retaining our firm to draft your Will, please contact
us to arrange an appointment. In order to properly advise you and draft documents
on your behalf, we require the following information:
- A list of your assets and liabilities, current values and form of ownership
(i.e. sole, joint with right of survivorship);
- Details of any existing beneficiary designations on life insurance, TFSA's,
RESP's, RRSP's, or RRIF's;
- Marital status and family situation (i.e. children, previous divorce or separation
obligations); this is to properly advise you of potential claims against your estate
in the event you fail to adequately provide for spouse or children as they can bring
claims against your estate and potentially override the provisions in your Will;
- Your full legal names and mailing address;
- The full legal name of the person you want to appoint as your Estate Trustee
and his or her relationship to you (i.e. spouse, sister, friend, etc.); please consider
a primary Estate Trustee and an alternate in the event the first person is unable
or unwilling to act; you can also appoint two or more people to act jointly;
- The full legal names of your beneficiaries and their ages; if under age of
majority (18), the inheritance will be held in trust until they attain age 18 or
such later age that you specify; if this situation applies, we can further discuss
terms of the trust;
- Whether any of your beneficiaries are currently incapable or receive ODSP
- Your instructions as to what or how much you want each beneficiary to inherit;
- Whether you have any personal effects or family heirlooms that you want to
go to one person specifically or how you want these items distributed;
- Funeral or burial instructions;
- Whether you want body organs to be made available for transplant or research
- Whether you want your Estate Trustee to be entitled to receive compensation
and if yes, how much.
Estate Trustee - An Estate Trustee is the individual
appointed to administer the Estate. The role is an onerous one that requires time,
commitment, honesty and sound judgement. The Estate Trustee has many obligations
including funeral arrangements, determination of assets and liabilities, securing
and protecting the assets, tax filing, acquiring legal representation, obtaining
a Certificate of Appointment of Estate Trustee if necessary, advertising for creditors,
payment of debts, maintaining or closing accounts, gathering in and distributing
assets, and various other matters. Some people who have complex estates may choose
to appoint a trust company as the Estate Trustee in order to take advantage of multiple
resources or avoid family conflicts. Some people may also choose to appoint more
than one Estate Trustee to act jointly. The Estate Trustee is exposed to personal
liability for failure to administer the estate properly. We recommend
you appoint someone with the ability to handle this position and ask that person
beforehand to ensure they are willing to take on this important role.
Useful Links to help you further understand Estate Planning
Trust - A trust is a legal arrangement created by
an individual (Settlor) giving fiduciary control of property to a person (trustee)
who then has an obligation to manage the property on the Settlor's behalf.
Trusts established during the lifetime of the Settlor are called inter vivos
trusts. Trusts established pursuant to the Will are called testamentary trusts.
Powers of Attorney - A power of attorney is a legal
document in which you (the "Grantor") appoint another individual (the "Attorney")
to act on your behalf. The nature of the Power of Attorney and the terms contained
therein dictate when the Attorney's power takes effect and the authority that individual
has. Powers of Attorney are only in effect during the Grantor's lifetime and
cease to have any effect upon death. In Ontario, Powers of Attorney are governed
Substitute Decisions Act, 1992 . We recommend
you appoint someone with the ability to handle this position and ask that person
beforehand to ensure they are willing to take on this important role.
Power of Attorney for Property Management – This
type of Power of Attorney permits the Attorney to make decisions regarding some
or all of the grantor's financial and legal affairs, except make a Will.
Power of Attorney for Personal Care – This type
of Power of Attorney permits the Attorney to make decisions on your behalf relating
to food, clothing, shelter, hygiene, nutrition, medical treatment and procedures.
It is only effective when you are no longer able to make your own decisions
regarding your personal care.
If you are interested in retaining our firm to draft your Powers of Attorney,
please contact us to arrange an appointment. In order to properly advise you
and draft documents on your behalf, we require the following information:
- Full legal name of the person you want to be appointed as your Attorney under
Power of Attorney for Personal Care; and
- Full legal name of the person you want to be appointed as your Attorney under
Power of Attorney for Property Management.
Commercial law is a branch of private law that deals primarily with the supply
of goods and or services by businesses for profit. Commercial law governs the rules
and regulations established to guide business conduct. Such things included under
commercial law, also known as Business Law, are advertising, marketing, manufacture
and sale of goods, corporate contracts, hiring practices, bailment and carnage of
goods, documents of title, secured transactions, collections and bankruptcy. Some
definitions that could be useful to understanding commercial law are:
Sole proprietorship: Sole proprietorship is an individual
acting on her own carrying on a business. The individual may operate the business
under a name distinct from her own, but she owns the assets of the business and
is also responsible for the business liabilities. Therefore any debt incurred through
the business is tied to the individual's personal assets. The individual and business
are indistinguishable from one another according to the law in Ontario. Benefits
to operating as a sole proprietorship include that it is the easiest form of business
to establish and the easiest to dissolve, one does not have to file separate income
tax returns. A detriment of this form of ownership is the exposure to unlimited
liability. A caveat is if the business is running under
a name other than the owner's name, she must register the name under the Ontario
Business Names Act .
Partnership: A partnership can be established in
two forms in Ontario. General partnership is similar to a sole proprietorship,
but more than one person owns the business (partner). Each partner is jointly and
severally liable for all the business debt. The second type of partnership is Limited
Partnership, where all of the partners own assets of the business, but
certain partners are able to limit their liability to the value of the contribution
they've made to the partnership. Partnerships have fewer legal requirements and
are less expensive than corporations. Limited partnerships are governed by Ontario's
Limited Partnership Act .
Incorporation: Incorporating involves the
government permitting a group of people, known as shareholders, to create an independent
corporation. This empowers the corporation to sue, be sued, hire, loan or borrow
money, and own property. The corporation is a separate legal entity and has the
rights of an individual. The advantages of this form of ownership include the limited
personal liability to the shareholders in certain situations and the survival of
the corporation notwithstanding the death of the shareholder. Disadvantages include
the cost and complexity of set up, ongoing operation and reporting requirements
to the government. Federally recognized corporations are regulated by the
Canadian Business Corporation Act . Provincially
recognized corporations are regulated by the
Business Corporations Act of Ontario.
Criminal law is created and enacted by the federal government and therefore applies
to everyone who is alleged to have committed a crime anywhere in Canada. Thus,
the federal Criminal Code ["Code"] differs significantly from other provincially
enacted legislation in scope, in how offences are prosecuted, and the penalties
that can be imposed upon conviction.
In order to understand how offences are delineated within the Code, some definitions
may be helpful:
Summary Conviction Offences – these offences are
considered less serious and therefore upon conviction normally carry a maximum penalty
of a fine of $5,000.00 or imprisonment that does not exceed six (6) months.
An example of a summary conviction offence is to obtain transportation by fraud
(not paying for your cab), contrary to section 393(3) C.C. Summary conviction
offences must be prosecuted within six (6) months from the date of the offence.
Indictable Offences – these are considered the most
serious offences and can carry significant penalties up to and including life imprisonment.
The more serious the offence, the greater the penalty; for example the indictable
offence of taking secret commissions (a type of criminal breach of trust), contrary
to section 426 C.C., imposes a maximum penalty of a five (5) years custodial sentence
whereas the indictable offence of criminal negligence causing death (a wanton or
reckless disregard for the lives or safety of others that results in the death of
someone), contrary to section 220(b) C.C., imposes a maximum sentence of life in
Hybrid or Dual Procedure Offences – to make matters
even more confusing, the Code contains offences that can be treated (through election
by the prosecution) as either a summary conviction offence or as an indictable offence.
For this reason, the penalty imposed also varies according to which way the prosecution
elects to proceed and it is important to note that all hybrid offences are deemed
to be indictable unless the prosecutor elects otherwise. An example of a dual
procedure offence is that of failing to provide the necessaries of life (extreme
neglect of a child or elderly parent or other person in your care), contrary to
section 215 C.C., imposes a maximum penalty of eighteen (18) months' imprisonment
if convicted summarily and a maximum penalty of two (2) years' imprisonment if convicted
by indictment. The reasons why a prosecutor might elect to proceed by indictment
rather than summarily often relate to the timing of the prosecution (if greater
than six (6) months has passed, the charge must proceed by indictment), the seriousness
of the facts (greater egregious conduct would likely persuade the prosecutor to
proceed by indictment), and the related record of the accused (similar past convictions
will likely invite stiffer penalties via a prosecution by indictment).
In order to help understand how criminal prosecutions operate in Canada, the following
information is useful:
Indictable offences fall into one of three categories; those within the exclusive
jurisdiction of the Superior Court of criminal jurisdiction, those within the absolute
jurisdiction of the provincial court, and those in which an accused can elect a
mode of trial.
- The most serious offences fall within the jurisdiction of the Superior Court
(such as murder) and therefore must be tried by a court composed of a Superior Court
Judge (Justice) together with a jury. That is, unless both the prosecutor
(often referred to as 'the Crown' but by definition is generally an "Assistant Crown
Attorney") and the accused consent to a trial consisting of a Superior Court Judge
alone (without a jury).
- Section 553 C.C. sets out the offences that fall within the absolute jurisdiction
of the provincial court (offences such as fraud, mischief and theft under $5,000.00).
Trials at this level are always conducted without a jury, even if the offence is
a hybrid (see above for definition), and the prosecutor elects to proceed by indictment
(this may be done to provide a greater range of penalties and for different appellate
- Offences not falling within either of the above two categories (such as criminal
negligence causing death, contrary to section 220(a) C.C.) allow for the accused
to elect the mode of trial. The choices to be made are as follows:
- A Provincial Court Judge alone (no jury) and without preliminary inquiry (this
is quasi-trial ahead of the main trial to ensure there is sufficient evidence to
proceed to trial);
- A Superior Court Judge together with a preliminary inquiry; and
- A Superior Court Judge together with a preliminary inquiry and a jury.
Youth Criminal Justice Act- The Youth
Criminal Justice Act replaced the Young Offenders Act as of 2003. It applies to
young offenders between the ages of 12-17. Youth between these ages involved in
conflict with the law have a separate set of rules to govern their experience. Instead
of directly going to trial some measures can be taken called Extrajudicial measures,
which are outside of the formal court process. These measures are an effective and
timely way of intervention holding a young person accountable for their actions.
Normally when a police officer is confronted with a first-time, non-violent young
offender they are encouraged to apply such measures as Warnings, Cautions (such
as formal letters to the young person's parents), specialized programs or community
service to create avoidance of further offences, crown cautions (once a police officer
has referred the case to the courts the crown prosecutors caution them), extrajudicial
sanctions (formal programs, volunteer work, compensation to the victim). These measures
all can be imposed upon the young offender.
Publication bans are also a part of a young offender's experience that protects
the youth's privacy. Prohibiting the publication of information to the public that
could possibly identify them protects the youth to maximize rehabilitation.
For more information on the Youth Criminal Justice Act visit
Organization of Ontario Courts:
The Provincial Superior Court is the highest level of court among the provinces.
It reviews the decisions of the provincial courts. The Superior courts are divided
into two parts: Trial and Appeals. The Trial level hears civil, criminal and family
cases. The Appeals level hears appeals from the Superior trial court.
In Ontario there are three different levels of the court system: The Ontario Court
of Appeal, The Superior Court of Justice and the Ontario Court of Justice.
The Court of Appeal for Ontario is the highest level of
court in our province. There is a federally appointed Chief of Justice of Ontario,
an Associate Chief of Justice of Ontario and multiple other judges. The Court of
Appeals for Ontario hears matrimonial and other family disputes, bankruptcies, and
other corporate reorganizations. Any appeals for judgements in the Court of Appeals
of Ontario go to the Supreme Court of Canada.
Court of Ontario:
Two divisions within the Court of Ontario:
The Superior Court of Justice hears more serious criminal law
and matters with youth criminal justice. It hears jury trials and also hears trials
with a sole judge alone after a preliminary hearing has taken place. It also hears
challenges to the Charter of Rights and Freedoms. The Superior Court of Ontario
also hears appeals from the Ontario Court. There are three branches to the Superior
Court of Ontario; Divisional Court, Family Court, and Small Claims Court. Divisional
Court hears some civil appeals under $50, 000 and appeals and reviewing
of decisions by government agencies, tribunals and boards. Family Court
hears matters of divorce, child protection, adoption, child/ spousal support, child
custody and division of property. Small Claims Court hears civil matters
for claims up to $25, 000.
The Ontario Court of Justice hears cases about offences committed
under Provincial law. It also hears criminal, family cases, and appeals for provincial
offences that have been previously heard by a Justice of Peace. A Justice of the
Peace would hear bail hearings, applications for search warrants, violations of
provincial law such as the Highway Traffic Act (tickets) or Health and Safety Act
For more information on the Organization of Ontario Courts visit
Civil litigation deals with disputes among individuals or organizations, where
compensation may be awarded to the Plaintiff. As stated on the website
civil litigation involves the "litigious aspects of advancing a claim in court,
pre and post- trial."
Small Claims Court – An area of civil litigation
often used in Ontario is the small claims court. This branch of the Superior Court
hears civil matters that are under $25, 000. In Ontario, the small claims
court has the majority of matters heard by Deputy Judges who are lawyers who preside
part-time in the court. . The rules of small claims court are less complex, allowing
individuals to represent themselves if they choose to do so.
Forms for the Small Claims Court:
Rules of the Small Claims Court:
Simplified Rules of Civil Procedure – The Simplified
Rules of Civil Procedure of Civil Procedure was created to address claims in excess
of $25,000.00 up to $100,000.00. It is a response to lawsuits with small
claim amounts having disproportionate litigation costs. Clients were becoming dissuaded
from pursuing litigation due to soaring litigation costs. The fundamental changes
to the Rules of Civil Procedure according are:
- The elimination of oral examinations for discovery;
- The elimination of cross-examination on affidavits in interlocutory proceedings;
- A simpler, cheaper and faster method of getting cases on the trial list;
- A more limited pre-trial; and,
- A modified summary judgement procedure, linked with a new summary time- limited
The Simplified Procedure does not apply to:
• Class proceedings
• Construction lien actions (except trust claims)
• Case managed actions (rule 77)
• Family Law actions
• Small Claims Court actions
For more information visit:
Superior Court of Justice – The Superior Court of
Justice has jurisdiction over family, civil and certain criminal cases. Matters
are governed by rules to regulate practices and procedures, ensuring conduct and
consistent outcome. These Rules can be difficult and confusing to the layman to
understand. The website
www.attorneygeneral.jus.gov.on.ca gives a general summary
of the kinds of procedures which the Rules encompass:
- General matters – time and provisions respecting forms and court documents
- Who the parties are
- How proceedings are started
- How documents must be served
- How certain matters may be disposed of "summarily" without a trial
- The pleadings (ie. The claim, the response, and related documents)
- Pre-trial disclosure
- How examinations out- of- court are to be conducted
- Motions and applications
- The ways in which parties' rights may be preserved pending the trial
- Pre-trial procedures
A full list of the Rules of Civil Procedure can be found at:
Forms can be found at: www.ontariocourtforms.on.ca/english/civil