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:

1. A list of your assets and liabilities, current values and form of ownership (i.e. sole, joint with right of survivorship);
2. Details of any existing beneficiary designations on life insurance, TFSA's, RESP's, RRSP's, or RRIF's;
3. 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;
4. Your full legal names and mailing address;
5. 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;
6. 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;
7. Whether any of your beneficiaries are currently incapable or receive ODSP benefits;
8. Your instructions as to what or how much you want each beneficiary to inherit;
9. 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;
10. Funeral or burial instructions;
11. Whether you want body organs to be made available for transplant or research purposes; and
12. 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

www.seniorsinfo.ca

http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/estate_planning.asp

http://www.lsuc.on.ca/with.aspx?id=2147483838

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 by the 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:

1. Full legal name of the person you want to be appointed as your Attorney under Power of Attorney for Personal Care; and
2. 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 prison.

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.

1. 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).

    

2. 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 procedures).

    

3. 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:

1. 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);
2. A Superior Court Judge together with a preliminary inquiry; and
3. 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

www.justice.gc.ca/eng/pi/yj-jj/ycja-lsjpa/index.html

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:

            Superior Court of Justice

            Ontario Court of Justice

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 ect.

For more information on the Organization of Ontario Courts visit www.ontariocourts.on.ca

Civil litigation deals with disputes among individuals or organizations, where compensation may be awarded to the Plaintiff. As stated on the website www.ontariocourts.ca, 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.

More information: http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/

Forms for the Small Claims Court: http://www.ontariocourtforms.on.ca/english/scc 

Rules of the Small Claims Court: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_980258_e.htm

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:

1. The elimination of oral examinations for discovery;
2. The elimination of cross-examination on affidavits in interlocutory proceedings;
3. A simpler, cheaper and faster method of getting cases on the trial list;
4. A more limited pre-trial; and,
5. A modified summary judgement procedure, linked with a new summary time- limited trial procedure.

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

• Applications

For more information visit:  www.attorneygeneral.jus.gov.on.ca and http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/fact_sheet_simplified_procedure_76.pdf

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:

1. General matters – time and provisions respecting forms and court documents
2. Who the parties are
3. How proceedings are started
4. How documents must be served
5. How certain matters may be disposed of "summarily" without a trial
6. The pleadings (ie. The claim, the response, and related documents)
7. Pre-trial disclosure
8. How examinations out- of- court are to be conducted
9. Motions and applications
10. The ways in which parties' rights may be preserved pending the trial
11. Pre-trial procedures
12. Trials
13. References

A full list of the Rules of Civil Procedure can be found at:        

www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm

Forms can be found at:   www.ontariocourtforms.on.ca/english/civil