There are so many people out there who have not given serious thought about Estate Planning. They question “what will happen if I die?”, “what will happen if both myself and spouse dies, my child(ren) will get the property , right?”.
Before that happens (I mean before you die), how about having a sit down with a lawyer and plan your estate. Simple, right? Not as simple as one may think.
It is a process, and the more prepared you are at your first meeting with your lawyer, the better it is for your lawyer to begin drafting your Will with all of the information being available upfront. Know who you want as your Trustees, alternate trustees, and know who will hold your Powers of Attorney, both property and personal care.
You need to think about all of property and assets that you have, including any corporate assets, you need to think about your bank accounts, life insurance policies, investments (RESP’s RRIF’s etc.), and vehicles.
It is common for spouses to have mirror wills (if I die my estate goes to my spouse and vis versa), but if you plan on something different, be prepared and instruct your lawyer and be clear with your instructions.
One of the most important things that clients tend to forget to think about is in the event of a common disaster. What happens if your whole family dies? That also needs to be addressed. Are there charities that you would like to support? Are there friends who have been behind you that you would like to leave something to? Think about the whole picture.
The more information that you come to meeting with, the quicker your Estate Planning will go.
Christine Allan, Law Clerk
There are numerous situations where a client walks into a law office with a valid issue but is unable to receive the outcome they desire. In this profession, clients do not always get the results they want however they should never be robbed of their day in court due to their claim being prevented by limitation issues. Limitation issues arise when an action is discovered and brought outside the correct time period.
When starting an action, one of the main items to consider is the expiration of the limitation period. Prior to the implementation of the Limitations Act, 2002 (“LA”) the amount of time a claimant had to bring an action depended on the event and type of action. This provided uncertainty to lawyers which in turn provided uncertainty for clients.
With the implementation of the LA, the Ontario government attempted to simplify limitation requirements. The LA provided a general limitation period of two years. This means that a lawsuit must be brought within two years of the day on which the claim was discovered.
While the LA simplified when an action could be brought it provided exceptions to when it did not apply, which can still lead to confusion. One of those exceptions is claims involving real property. Real property is governed by the Real Property Limitations Act (“RPLA”).
The RPLA provides a ten year limitation period for actions dealing with land. Section 4 of the RPLA outlines when a proceeding falls under the RPLA and is subject to a ten year limitation period.
However, not all actions dealing with land fall within the RPLA. A breach of contract while dealing with land will not be subject to the ten year limitation period and would instead fall under the LA. An action or claim for damages must fall within the definition of “land” in the RPLA for it to be covered by the ten year limitation period.
While the difference between the two acts may seem trivial it may be the different between an action involving land being available or being barred. Thus, while you may be under the impression that you have no cause of action due to two years passing since you discovered your claim, if it involves land you may still have a viable cause of action.
In short, when an issue arises, do not delay talking to a legal professional. Lawyers can help you but due to the LA and RPLA, we also have to work within “limits.”
Harman S. Toor, JD
Our firm is a Professional Corporation. The Canadian Government has declared we are therefore tax cheats. I disagree.
Many of our clients are also Professional Corporations or Small Business Corporations. They are not tax cheats either.
Over the past twenty-four year, I have hired at least thirty people. For each of those employees, I have paid the “top ups” of EI, CPP and taxes as well as our Provincial Employer’s Health Tax. I provide extended health benefits for my employees and our Professional Corporation supports High School Scholarships, the Ontario Justice Education Network and other organizations that need help.
I don’t have a Government Pension. I’ve had to save up in an RRSP, of course at the same time I was saving for my kid’s education in an RESP.
I didn’t get a paid Maternity Leave, I took ten days off and was back at work after having my child. I don’t get a paid sick day, though I do provide my employees with five paid sick days per year. I didn’t get paid when I had an unexpected emergency surgery that left me unable to work for eight weeks.
I’m not complaining about any of the above, but I am complaining when the Canadian Government tells me I’m not “paying my share” and I’m a “tax cheat”. That’s not what Small Business is doing by using a Corporation. Small Business is protecting personal liability by using a Corporation. Small Business is separating personal finances from business finances. Small Business is building the backbone of our economy.
I am not a tax cheat !
Inga B. Andriessen JD
One thing that we have noticed with our corporate clients is that they are often operating under a name different than that which has been incorporated. For example, incorporating “ABC Company Incorporated” and then operating under “DEF Co”.
What’s the problem with that? Everything. The Business Names Act specifically states that “no corporation shall carry on business or identify itself to the public under a name other than its corporate name unless the name is registered by that corporation.”
The corporation that you registered is a legal entity that can enter into contracts, etc. You cannot choose to operate under a different name without doing the proper searches and registering that name with the Ministry of Government and Consumer Services. In failing do that, you could potentially be infringing on someone’s Trademark, which can be serious problem.
How do you fix this? When incorporating, you can choose to either incorporate with the name that you want to operate under, or if you choose to operate under a different name, get your corporate lawyers to take that extra step to ensure that the business name is available and register it. The corporation will own that business name. It is a legal entity, and can be used on a store front, when invoicing clients and in operations.
Same goes for individuals who wish to operate without incorporating. You still need to register a Business Name. This is called a Sole Proprietorship, or in the case of more than one individual, a Partnership. The searches are still required and you will then be able to operate with that name.
Our advice: reach out to a lawyer to assist with your corporate planning. In most cases, it will save you money as it can cost more to fix mistakes than to have it done right in the first place.
Christine Allan, Law Clerk