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February 2018
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When spouses decide to prepare their wills together, there may be a concern that once one of the spouses die and the surviving spouse later remarries, that the surviving spouse may not live up to the joint intentions and promises she or he made to the deceased spouse on how their estates should be divided. This concern often occurs for married couples who were previously married with children from their first marriages. There may be a concern that the surviving spouse may later decide to change his or her will and shut out the deceased spouse’s children from the first marriage or a concern that the surviving spouse later remarries and does not adequately provide for their children.

So what can a married couple do to ensure that the surviving spouse adheres to their shared intentions and to ensure that the deceased spouse’s property goes to his or hers desired beneficiaries?

One tool that can be used to minimize the risk of a surviving spouse from not honouring the shared intentions is to have both spouses enter into a Mutual Wills Agreement (“MWA”). An MWA is a contract whereby both spouses agree to not change or revoke their will without notice to the other spouse. Once the MWA is signed by both spouses and one of the spouses dies, the agreement becomes irrevocable and cannot be changed unless the change occurs by way of law or if the MWA itself permits specific instances of change.

If you have any questions about your estate planning needs or any questions about a Mutual Will Agreement and how it may help protect your estate, feel free to connect with us to learn more.

Michelle Eames, LLB, LLM
Lawyer
meames@andriessen.ca

I’m fortunate that as part of my career I have the opportunity to Mentor students, beginning at the High School level and carrying on to lawyers about to be Called to the Bar.

I’ve recently encountered some questions during Mentoring interactions that have led me to realize, some people seeking Mentorship have an inaccurate belief as to what it took to get where I am now.

I was Called to the Bar in 1993, so I’ve been doing this a while. When I started my firm, I generally worked 7 a.m. until 9:00 p.m. in order to get everything done. I couldn’t afford to hire the great support staff I have now, so a lot of things took longer as I was on my own. It was worth it.

Even today, while I’m happy to take time away from running my practice to speak to Mentees, taking that time means that I’ll be at the gym a bit later than planned, unless that meeting was already scheduled, or I’ll add a task onto my “to do” list for the following day.

Given how hard I worked in the early days and continue to work today, though not quite the 14 hour days of my youth, I was shocked to have one student recently ask me for advice on a well paying career that doesn’t require a lot of hours of work. This student believed that I don’t work a lot of hours because I’m happy.

Well, that’s not true and the key to happiness is finding a career you enjoy, so it doesn’t feel like work.

The “lack of hours” issue really grates on me. I’m not looking to dump on Millenials here, don’t worry. However, the reality is that any career, not just Law, requires you put in the work in the early stages to build a solid foundation on which you will build your career. The phrase work/life balance does include the word “work” and you cannot forget that when you’re starting out.

Like Drake, I started from the bottom, now I’m here. Not going to say, I’m at the “top” (whatever that means) but I am certainly enjoying the benefits of putting in the extra hard work in the early years, so I can work efficiently now.

Inga B. Andriessen JD
iandriessen@andriessen.ca

What is the difference between a lawyer and a paralegal? That is one of the most common questions I am asked by clients.

One of the most obvious differences between lawyers and paralegals is education; however, this blog will focus on the scope of practice of a paralegal.

Lawyers are not limited on what area(s) of law they wish to practice in. Paralegal training is nowhere near as extensive as lawyers, which limits what a paralegal can do.

The Law Society of Upper Canada authorizes licensed paralegals to represent parties in Small Claims Court, offences under the Provincial Offences Act (traffic Court, etc.), summary conviction offences (where six months’ imprisonment is the maximum penalty), and Administrative tribunals such as the Landlord and Tenant Board and the Human Rights Tribunal.

While representing a party in any of the above proceedings, a paralegal can provide legal advice regarding the subject matter of that proceeding. Paralegals can also draft pleadings and other documents that are used in the course of those proceedings, and paralegals are permitted to negotiate settlements on behalf of a party to a proceeding.

Paralegals cannot provide legal services in areas outside of the scope permitted by the Law Society that only a lawyer can provide.
Some paralegals, like lawyers practice in multiple areas of law, while others specialize in one area.

One common element between paralegals and lawyers is that must both abide by codes of conduct: the Paralegal Code of Conduct, and Rules of Professional Conduct, for lawyers. They are quite similar.

Both paralegals and lawyers serve pivotal roles which are necessary in the interests of justice.

Murray Brown
Paralegal
mbrown@andriessen.ca

Lawyers provide a service. We do many things including conducting research, advocating for our clients and providing legal opinions. While these services are essential, they are not always welcomed nor are they always appreciated.

Many businesses that are not law firms experience the same issue – you do a good job, but the customer is not happy. This leads to the question: how do I protect my business from an unhappy client or customer?

When it comes to lawyers, individuals often don’t choose to deal with a lawyer until they are required to. This can lead to clients not appreciating the information they are being given or ignoring it altogether. While this is extremely frustrating, difficult clients are a part of the profession.

There is no one way to deal with a difficult client or customer; just as in your personal life, dealing with difficult people varies depending on the person you are interacting with. However, the most important thing for a business to do is to ensure that they protect themselves from liability. For lawyers in particular, this is to protect themselves for situations where their advice is ignored.

Protecting your business is done through a CYA email which stand for, “Cover your assets” well, maybe not the last three letters .

All correspondence between you and your client or customer should be documented. After every phone call especially those where there was a substantive conversation, follow up with an email and outline what you have discussed during your call and reiterate your opinion on the matter if necessary.

Documenting conversations with customers may seem like an obvious tip and something that all businesses and lawyers should be practicing. However, as we have grown accustomed in our personal life to take things at face value, this trait often translates to our business and professional lives as well. As much as we would like to believe that our advice will be adhered to and more so that if this advice is not taken we will not be personally liable this is not always the case.

So do yourself a favour and write a CYA email, otherwise it may be C YA when you need to prove that you did what you said you would do.

Harman S. Toor JD
htoor@andriessen.ca

I previously talked about why I became a Law Clerk and my role with corporate matters in the firm. This is a big part of what I do for our clients and I wanted to expand on that thought, so that’s what today’s Blog is about.

As a Corporation, Federal or Provincial, there are a few things that need to be maintained yearly in order to be compliant, one of which is annual meetings of shareholders and directors, and the recording of them, i.e. Annual Minutes or Resolutions. We call this annual corporate record keeping.

Once the financial statements have been prepared by your Accountant and delivered to you, you should reach out to your corporate lawyer to let them know that you are ready to have with your Annual Resolutions prepared. Why wait until after you receive your financial statements? That is where you will know if any bonuses or dividends have been paid and these are required to be reflected in the Annual Resolutions as part of the record keeping.

As part of our service, we don’t wait to hear from you for your financial information. Approximately three months after your financial year end, our offices will reach out to you to see if you have received the information from your Accountant and ask questions that will assist our office in preparing the Resolutions.

Pursuant to the Ontario Business Corporations Act (OBCA), and the Canada Business Corporations Act (CBCA), a corporation is required to maintain their corporate records. Failure to do so can result in significant penalties such as fines, with the officers and directors being personally liable for those fines. For this reason, please don’t ignore the request from your corporate lawyer, which is probably more accurately a request from a Law Clerk like me.

We’re to help things run smoothly and avoid the necessity of rushing to make your Minute Book current (because of a purchase or a corporate audit), and will save you stress and money.

So next time you get that email from your lawyer asking for your year end information, get your response to them to avoid any unnecessary expense and make life easier for a Law Clerk like me !

Christine Allan
Law Clerk

callan@andriessen.ca

Back in July, the Liberal government issued draft legislation for proposed tax reforms aimed at private incorporated businesses that fell primarily into 4 categories: Income splitting, Capital gains exemption, Capital gains within a corporate group, and Deferral of tax using private corporations. These contentious tax reform proposals would not only impact the “rich doctors” as the Feds messaging pushed, but will have a greater impact of hurting small businesses, which make up 98% of the businesses across Canada.

A few weeks ago, Trudeau and Morneau kicked off a series of tax announcements to share the Liberal’s final position on the proposed changes following the anger and outcry from the business community. The Liberal government has decided to abandon the proposed changes to the capital gains exemption but will move forward with a modified version of income splitting or “sprinkling” which will require business owners to prove that they are splitting their income with family members who “meaningfully contribute” to the business. It remains to be seen how businesses will need to prove this.

Proposed rules to discourage using corporations for passive investing will move forward with a new threshold. The government intends to allow incorporated businesses to generate up to $50,000 a year in future passive-investment income that would not be subject to a new tax. However, it is unclear how future gains on currently held investments, typically generated for example through dividend payments or interest, will be treated. Although Morneau believes that small businesses will not be impacted by this measure since 85% of small businesses have no passive investment income at all, he is overlooking an important consideration that this threshold may be too low to help small companies save to grow and to create more opportunities. There could be a looming bigger issue down the road as a result.

Lastly, the Trudeau government is abandoning the proposed tax reform that would have restricted the conversion of income into capital gains. This initial tax proposal change caused a huge concern for farmers and fishers as it would have made it more difficult for farmers and other business owners to pass on their businesses to their children.

The feds have tried to sweeten the deal by slashing the small business tax rate from 10.5% to 9% by January 1, 2019. But, is keeping their 2015 election campaign promise enough for small businesses to happily jump on the bandwagon and to move forward with these changes? If you have not already done so, we recommend that you contact your Accountant to see if you and your business may be impacted by these changes. Please also feel free to reach out to us if you require any corporate changes following these announcements.

Michelle Eames, LLB, LLM
meames@andriessen.ca

The title of this Blog is often used in terms of data management to mean that if you input garbage your results will not be impressive.

As a litigator, this also applies to the information provided to me by my clients. If my client does not give me full disclosure, then that is “garbage in” and the result likely will be “garbage out” when the information inevitably comes out through the various steps in the litigation. This is why most litigators, certainly all good litigators like us, are adamant: give us your full disclosure – we will decide what needs to be produced to the opposing party.

Similarly, I’m reading a lot in the news stream (again) about people walking out of rooms when a person they disagree with starts speaking. Wow. That is a recipe for garbage in/garbage out in my opinion.

What I mean by that is that if you refuse to hear the position of someone who disagrees with you, you’re only going to be surrounded by your position and that is going to become an echo chamber. Ultimately, if you’re only hearing one view, you only understand one view and that won’t let you evaluate opposing views from a calm, rational perspective as you won’t be used to hearing them.

I’m particularly concerned when I hear this in government – particularly in the Canadian Federal Government. I understand the Liberal members of the Committee on Women recently walked out because they didn’t like who the opposition appointed to the Committee. I personally don’t agree with the views held by the opposition member that led to the walkout, however, I support their right to have their personal views and am concerned that the Government walking out of the committee is not democracy in action. It’s the opposite.

So. Garbage in/garbage out. Let’s take out the garbage – it’s better for everyone.

Inga B. Andriessen JD
iandriessen@andriessen.ca

We as humans have a great attribute to persevere. We like to think that everything will work out in the end if we keep fighting for what we believe is right. This idea can get you far in life but it can also cost you a lot especially in the legal field.

One of the first things, all individuals should know prior to commencing a claim is that “if it doesn’t make dollars, it doesn’t make sense” (Big Pun reference). In the legal world personal feelings and grudges cloud the mind of all those involved and it leads to money being wasted with little to no recourse for recouping those losses.

If your reason for commencing a claim is personal or the individual you are going after has no money to pay a judgment, it may be better to seek alternatives to commencing a legal action. This may include having a conversation with the opposing party, seeking a mediator or just cutting your losses. While, the ladder may be hard to swallow, it may make be the difference between losing hundreds and losing thousands of dollars.

Looking at commencing a claim as a business decision is something many lawyers won’t broadcast. As a field we work on billables and nothing drives up billables like personal feelings. However, advising a client about treating a claim as a business decision opposed to a personal one is what retains clients long term.

In our firm, we conduct searches ahead of starting a law suit to be certain there is something to collect a Judgment from. Many other firms don’t do that – you need to ask yourself why?

So, long story short, always say to yourself, “if it doesn’t make dollars, it doesn’t make sense” and if it does make dollars, commencing a legal claim may be the next logical business decision.

Harman S. Toor JD
Associate Litigator

htoor@andriessen.ca

I was recently successful in a Small Claims law suit where our client was sued for alleged damages to a vehicle the plaintiff claimed were caused by our client.

It was obvious after reviewing the Plaintiff’s Claim that the plaintiff had no reason to sue our client. The Deputy Judge at the Settlement Conference had a hard time understanding what the plaintiff’s damages were. We were also confused, and so was the plaintiff! (Helpful hint: if you don’t understand what your paralegal or lawyer has drafted, ask them before they sue on your behalf.)

After the Settlement Conference, we served an Offer to Settle for a nominal amount in an attempt to avoid going to Trial. The nominal amount was based upon our Defence and the Deputy Judge’s thoughts at the Settlement Conference. More importantly, the Offer was served because of the cost consequences for the failure to accept an Offer that is better than the end result.

The Small Claims Court Rules state that if an Offer to Settle is not accepted, but was served before the Trial date, and does not expire before the start of the Trial, the successful party is be entitled to costs that are double the amount that would normally be awarded.
In our case, the claim was in the amount of $25,000.00. The maximum a successful party would be entitled to for representation is 15%, being $3,750.00. With disbursements, our client’s costs ended up being approximately $4,300.00.

During my submissions, I requested that amount, and because our Offer was not accepted and was better than the result (for us at least), I requested double, around $8,600.00.

When the Deputy Judge asked for submissions from the plaintiff’s paralegal representatives (there were two) as to what I was requesting, they asked the Court for leniency. They claimed that the stress caused to their client was worth the Court being lenient when ordering costs against them. As the Court had already found that our client was not responsible for that stress, their request was denied. Our client ended up with a cost order of $7,900.00. Our client was very pleased with this result.

As litigation is never guaranteed, it is always important to consider serving an Offer to Settle, whether you are the plaintiff or defendant, because it may help you in the end, whether it is you paying less in costs if your offer was better than the result, or you getting double costs if you are successful.

Murray S. Brown, Paralegal
mbrown@andriessen.ca

Ontario lawyers all recently received the email from the Law Society telling us we have to create a Statement of Principles that acknowledges our obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public.
That’s not hard for me – I’ve always operated on the basis of hiring the best people, regardless of colour, creed, who they love & who they worship. I don’t behave that way because I’m told to, it’s just who I am.

As a result, I was surprised by Bruce Pardy’s commentary in the National Post (see here http://tinyurl.com/y7tcd5ve) suggesting this made him believe he was in North Korea.

As a Mentor in Ryerson’s Law Practice Program I walk through soon to be Called lawyers through our Rules of Professional Conduct. For the past three years I’ve discussed the obligations we have as lawyers treat all equally – maybe Bruce doesn’t know he is already required to behave in accordance with the Statement of Principles the LSUC is asking him to affirm?

I think this Statement of Principles is kind of like renewing marriage vows – it reminds you of the Oath we take when we become lawyers in this Province.

It’s always good to have an opposing view to consider, particularly when you’re a lawyer – so thank you Bruce for providing that view as jarring as it is to read.