Taking the High Road: Canadians Crossing the US Border Many of our readers may be pleased about the soon-to-be legalization of marijuana. These same readers may find themselves feeling slightly relieved, as gone are the days where smoking pot also meant breaking the law. Right? Wrong. Although cannabis is about to become legal in Canada, there are still many important legalities that must be borne in mind, or else you could find yourself in some hot water. One of the biggest concerns immigration lawyers have, with regards to the legalization of marijuana, are the implications at the United States border. If a person admits to smoking marijuana, presently or in years past, or if a person admits to having ties to U.S.-based cannabis companies, they could be in serious trouble at the border and could find themselves banned from entering the U.S. – indefinitely. This is because the recreational use of marijuana is not yet legal federally across the United States. Unlike in Canada, criminal law in the U.S. is regulated state by state. In plain terms, what this means is that the consequences for committing a crime in the U.S. vary state by state, whereas in Canada, we are all subject to the same Criminal Code. When marijuana becomes legal in Canada, it’s legal everywhere in Canada, but in the U.S., only nine American states have legalized cannabis for recreational purposes. It is currently illegal under U.S. Federal Law. So while us Canadians may be free to use cannabis as we please, there’s a line to be drawn, and that line is at the U.S. border (which operates under U.S. Federal Law). According to the Canadian Border Services Agency, both the U.S. Customs and Border Patrol and the Canadian agency allow access to their respective countries based on the “circumstances” of each traveller. Unfortunately, some circumstances matter more than others to U.S. border agents. One such circumstance they aren’t a fan of includes those that link travellers to marijuana, whether through consumption or their employment. According to U.S. Customs and Border Patrol, if an individual works in the Canadian cannabis industry, he or she may be turned away from the border or banned from entering. As a case in point, a businessman from Vancouver was recently banned for life from the U.S. as a result of his investments in U.S. marijuana companies. Immigration lawyers across Canada have spoken out about the dozens of cases they have recently encountered where Canadians have been denied entry to the U.S. as a result of their connections to the cannabis industry. Some of these attorneys have gone so far as to advise their clients, who work with American marijuana companies, to not cross the border. If they do, they may be “aiding and abetting the U.S. marijuana industry,” which still is illegal. However, it is not just those who work or invest in the cannabis industry who may have difficulties in crossing the border. The federal prohibition of marijuana in the U.S. will continue to be a serious cause for concern for a lot of Canadians. For example, anyone who does so much as admit they have used cannabis may similarly be banned from the U.S. for life. The most famous example of this happening is with Ross Rebagliati, a Canadian Olympic snowboarder. Rebagliati was banned from the U.S. for simply admitting that he had used marijuana in the past. Not surprisingly, a denial of entry could have serious ramifications for those who are travelling to the U.S. for business or to be reunited with their families. In one case in particular, three individuals from Vancouver who were looking to sell agricultural equipment to a cannabis business in Washington State (where cannabis happens to be legal) were banned from the U.S. for life, and of course, they didn’t make the sale. Once the recreational use of marijuana becomes legal, it should come as no surprise that more and more Canadians will likely begin to consume the once illegal substance. And with more consumers comes more concern. The more people using marijuana in Canada means there is a greater possibility that more people would be barred from entering the U.S., either temporarily or permanently. In an effort to avoid such consequences, many Canadians may be tempted to lie to U.S. Border Officers, or refuse to answer their questions. Refusing to answer could result in you being barred from entering that one time, but it likely would not lead to a permanent ban, as can be the case with admitting to smoking marijuana previously. As for lying to Border Officers, this can result in a 5-year ban for misrepresentation, or worse, a forever ban. Given that officers can search the internet or a person’s electronic devices to ascertain that individual’s activities—including where that person works or what organization they are associated with—many will be caught if they are not forthcoming. As immigration lawyers advise, a determination of inadmissibility will not be easy to overcome. Canadians who do find themselves banned can apply for a temporary waiver to allow entry, but the process can take up to a year, and the waiver must be renewed every so often. Due to the jurisdictional issues, there is unfortunately very little the Canadian government can do in order to prevent U.S. Customs and Border Patrol from asking travelling Canadians about their marijuana use. At the end of the day, whether your ties to marijuana are work-related, investment related, or recreationally related, you should be wary about crossing the border. For more information on the legalities of cannabis use and investments and how Devry Smith Frank LLP’s Immigration lawyers can assist with your immigration law matter, please contact the Immigration Practice Group. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”</h6 By Fauzan SiddiquiBlog, Cannabis Law, ImmigrationAugust 21, 2018June 16, 2020
Settlement Judgement May Not Be The End of Legal Battles for Clarinetist In a shocking decision, rising star clarinetist Eric Abramovitz was awarded $375,000 in a default judgment against his ex-girlfriend Jennifer Lee. Mr. Abramovitz was offered a full scholarship to study under world-renowned clarinet pedagogue Yehuda Gilad. Unbeknownst to Mr. Abramovitz, his girlfriend at the time Ms. Lee had deleted the acceptance email, impersonated him and declined the offer. As a result, Mr. Abramovitz lost a significant educational and career advancing opportunity. Not to mention the hurt and betrayal he endured as a result. Though this appears to be a significant victory for Mr. Abramovitz, there is a good chance he may never see the money he was awarded if Ms. Lee cannot be found. Many people think that after a judge’s decision or default judgment, the “winner” will automatically get paid, however, this is not the case. An order from the court is not a guarantee of payment. The process to obtain the monies can get complicated and expensive. Typically, the first step to recover judgment money is to write a letter to the debtor requesting payment and working out a payment plan in order to avoid going back to court. If the debtor, however, is unresponsive and/or uncooperative there are a number of mechanisms that can be used to enforce judgment. The creditor must first determine if the debtor has money, assets that can be seized or sold, or a debt owing to the debtor by a third party such as employment income that can be garnished. The debtor can request this information through an examination in aid of execution in order to determine the creditor’s place of employment, income, bank account information, available property, other debts owed etc. After the examination, the primary routes for obtaining the monies are: Garnishment – If the creditor is able to determine the debtor’s place of employment, they can obtain a garnishment order. The debtor’s employer would be obligated to provide wages to the court, which would then be given to the creditor. A notice of garnishment remains in force for six years and can be renewed if the debt is not paid in full. Writ of Seizure or Sale – A creditor can file a writ of seizure and sale which would be enforced by a sheriff. There is a writ for personal property which are all belongings besides real property and money. And a writ for the seizure and sale of land which is for real property. Essentially, the sheriff would obtain the debtor’s belongings, have them sold, and proceeds would go to the creditor. The writ of seizure and sale of land can be particularly effective since it encumbers the land and prevents the debtor from being able to buy or sell land until the debt has been paid off. To conclude, obtaining a paper judgment is only step one in what can be a lengthy, expensive and complicated process to obtain the money owed. If the debtor is unemployed and has no assets, it may not even be worth the trouble and cost of litigation to obtain a judgment against them. This is something to consider and should be canvassed with a lawyer prior to commencing a legal action. Devry Smith Frank LLP is a full-service law firm located in Don Mills. If you require assistance with a litigation matter or need a litigation lawyer, please contact Devry Smith Frank LLP today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlogJuly 20, 2018June 16, 2020
Trinity Western Decision The Supreme Court of Canada has rendered a decision that is an important victory for the promotion of equality, diversity and access to justice in Canada. On June 15, 2018, the Court released the landmark decision, finding that law societies were entitled to deny accreditation to a proposed law school that had discriminatory admissions requirements. The case garnered national attention as it seemingly involved a clash between freedom of religion and the right to equality, values which are central to Canada’s democratic society. Trinity Western University (“TRU”), a Christian university in British Columbia, submitted a proposal to open a law school that was based in the foundational religious beliefs of evangelical Christianity. Admission to the proposed law school would require that all students and faculty adhere to a community code of conduct, which contained a covenant that effectively denied admission to LGBTQ students. The covenant required TRU students to voluntarily abstain from a number of activities and explicitly prohibited “sexual intimacy that violates the sacredness of marriage between a man and woman.” The British Columbia and Ontario law societies voted against accreditation of the school because of the discriminatory nature of the covenant. The school sought judicial review of this decision, claiming that refusal to approve the law school on this basis violated its right to religious freedom under Section 2(a) of the Canadian Charter of Rights and Freedoms. The majority of the Court found that the law societies’ decision to deny accreditation was reasonable and constituted a proportionate balance between the limitation of religious freedoms under the Charter and the statutory objectives of the decision to refuse approval. The Court found that the infringement of religious rights was minor compared to the discrimination members of the LGBTQ community would face under the covenant. The Court found that protection of public interest was a valid objective for law societies to consider when making decisions with respect to admission to the legal profession. The Court further accepted that by promoting equality, supporting diversity within the bar, and preventing harm to LGBTQ law students, the law societies were acting in furtherance of the public interest. In addition to upholding human rights, this decision has broader implications for the promotion of access to justice. A major policy issue experienced by Canadians is the inaccessibility of the legal system. This problem is particularly pronounced among members of historically marginalized groups, including the LGBTQ community. One explanation for the heightened barriers experienced by certain communities in accessing legal services is their lack of representation within the legal profession. Accordingly, there has been a call from policymakers and accessibility advocates to promote diversity within the bar to ensure that members of disadvantaged groups can assess legal representatives who can identify and respond to their unique needs. Paul Schabas, treasurer of the Law Society of Ontario, acknowledged this important implication of the decision, stating, “Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to diverse needs.” Ultimately, this decision of Canada’s highest court recognizes that Law Societies, as self-regulating bodies of the legal profession, have an overarching obligation to promote equality and uphold human rights when making decisions involving admission to the profession. As gatekeepers to the legal system, these decision makers must be prepared to take active steps to remove inequitable barriers and ensure all persons have an equal opportunity to pursue a legal education. For assistance with or legal advice on human rights laws in Toronto, please contact one of our human rights lawyers. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJuly 5, 2018June 16, 2020
Cannabis and the Workplace Canada’s proposed Bill C-45, The Cannabis Act, is expected to come into force on July 1, 2018, as will Ontario’s Cannabis Act, 2017. At that point, in Ontario, it will be legal for individuals aged 19 years and older to purchase and consume cannabis for non-medical purposes, to grow up to 4 plants per household, and to carry up to 30 grams on their person. This may result in an increase in the number of recreational users and, because more people are likely to be using or carrying cannabis, it is possible the drug will be found in the workplace. Although the legislation would prohibit the consumption of recreational cannabis in public places and in workplaces, employers must consider that employees who smoke or ingest cannabis (even during their off-hours) may be impaired while on the job, thereby jeopardizing the safety of others in the workplace. All business owners have a responsibility to make employee safety a priority and to properly handle incidents of impairment. It is worth noting that medical cannabis will remain subject to different laws. Unless otherwise restricted under the Smoke-Free Ontario Act, 2017, medical cannabis can be smoked or vaped in places where recreational use would be prohibited. The consumption of other forms of medical cannabis are not similarly restricted. Employers should prepare for the legalization of recreational cannabis and should ensure that they can properly navigate the workplace issues to which it will likely give rise. To this end, employers can: Update Manuals and Policies: Amend workplace policies to include provisions regarding the possession and being under the influence of cannabis while at work, accommodation requirements, disciplinary actions, and the like. Implement Training and Education: Introduce mandatory training and education for employees on topics such as the effects of cannabis, how to recognize impairment, the importance of work safety, and the steps to take if someone is impaired on the job. Introduce Drug Testing (if permitted): Industries or occupations with specific safety requirements are permitted to ask employees to undergo proper drug testing. Implementing a testing policy enables the employer and the employees to clearly understand their respective rights and obligations. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Employment LawJune 11, 2018July 5, 2023
The Family Rules are Changing on July 1, 2018 and Lawyers and Litigants Should Take Note Come July 1, 2018, the Family Law Rules (the rules that govern the process of family law court cases in Ontario) will undergo some substantial changes. Changes have been made to the rules that govern the timelines for serving and filing court materials, the rules for costs and the rules for motions and conferences. The changes are not insignificant and family law litigants and lawyers alike will have to take note. Timelines for Motion Materials One of the major areas of change is in relation to the time in which parties have to serve and file materials for motions. If a party wishes to have the court grant a temporary order, they have to (in most cases), bring a motion. To do this, they have to serve and file a notice of motion outlining the orders they want to make, and the evidence supporting those orders. Under the “old” rules, a motion and the supporting evidence had to be served no later than four days before the hearing date. A party responding to the motion had up until two days before the hearing date to provide their evidence in response to the motion. The party bringing the motion would have a right to reply, but this would also have to be submitted two days before the hearing date. This led to numerous motions being adjourned when responding materials were filed at the last moment, necessitating an adjournment to allow for reply evidence. Finally, two days before the hearing, the parties had to confirm that the motion was proceeding by filing a confirmation. The new rules have extended the timelines and (one hopes) eliminated the need for adjournments to file reply evidence. Under the new rules, motions must be served six days before the hearing, and responses must be filed by four days before the motion. If a party wishes to file a reply, they will have to do so three days before the hearing date. Confirmations will now have to be filed three days before the motion. Hopefully, these amendments will result in fewer motions being brought at the last possible moment and fewer motions being adjourned as a result of it. Delay works a real injustice in family law, and regularizing the process for booking motions and filing the material for them will hopefully work against this. Timelines for Conferences The new rules have also changed the timelines for filing conference briefs. Under the old rules, the party requesting the conference (or if no one requested it, the Applicant) had to serve and file their brief seven days before the conference. The responding party had to serve and file their brief four days before. The new rules now require that the initial brief be filed six days before the conference. Litigants will now have to keep Rule 3(2) in mind when filing briefs. Under Rule 3(2), if a rule specifies a period of less than seven days, you don’t count weekends or other days when the court is closed. So six business days may turn into eight calendar days depending on the timing of the conference. Costs It is unlikely that the changes to the rules for service and filing of motions will lead to any substantive changes in the law – people often do not litigate about how many days there are in the week (thankfully). However, the last major changes to the Rules will likely lead to some litigation over their interpretation and application. After all, the changes are to the cost rules. The current costs regime is enumerated in Rule 24. Its language and interpretation have been the subject of countless court decisions. The old Rule 24(11) listed the factors that judges had to consider when awarding costs. The new Rule 24(12) does the same but imports the language of ‘reasonableness’ and ‘proportionality’ into an assessment of each of the factors. While these concepts always have loomed large in the assessment of costs, it will be interesting to see if the slight linguistic changes will have an impact on how and when costs are awarded. There is a legal maxim that the legislature does not speak in vain, and changes in the language of the law should bring about changes in its application. Otherwise, the changes will have had no effect and the legislature will have ‘spoken in vain.’ We will just have to wait and see how these new rules are applied. One of the last major changes is when the Court can award costs. The ‘old’ rules required a judge to address costs at the end of each step in a case, be it motion, conference or otherwise. In Islam v Rahman, the Court of Appeal decided that if a judge did not address costs at the end of a step, a party could not seek costs for that step later in the case. The new Rule 24(11) has done away with this and allows the court to award costs related to a step at any point in the case. The Final Word It is only in half-jest that I say that one would need a law degree to understand the Family Law Rules. While they are meant to be understood by average people, many people find them confusing and tough to navigate. The new amendments to the Rules will hopefully prevent motions being brought at the last moment to ‘ambush’ other parties, and motions from being adjourned to allow for reply evidence. However, the new rules also make clear that motions will not proceed if the rules are not followed exactly. It is important to ensure that all the rules are followed, or cases will continue to be delayed. That is why it is always recommended that you have an experienced family law lawyer assist with your case. For more information on the Family Law Rules and how Devry Smith Frank LLP’s Family lawyers can assist with your family law matter, please contact one of our Family Law Team. By Fauzan SiddiquiBlog, Family LawJune 7, 2018June 16, 2020
Canada to Get Its First Major Update to the Divorce Act in Twenty Years On May 22, 2018, the federal government introduced Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. While most may be caught by its catchy name, Bill C-78 is something that family law practitioners and litigants alike should take note of – they are the first major reforms to the Divorce Act in almost two decades. If spouses divorce in Canada, their divorce and any issues of child support, spousal support, custody, and access are governed by the Divorce Act. If spouses are not married, these issues are governed by the provincial family law statute(s) in force in their province of residence. In all cases, issues of property are resolved according to the provincial laws. While the proposed changes to the Divorce Act and the related statutes are wide-ranging, arguably the most important changes will be related to the custody and access (or ‘parenting’) provisions of the Act. Currently, the Act speaks in terms of ‘custody’ and ‘access’ which, while familiar to most, are considered out of touch with modern views of separated parenting. Scholars, experts and practitioners alike believe that the terms ‘custody’ and ‘access’ promote a mindset of winners and losers in family law – that custody is something to be prized, and access is for secondary parents. In response to this, the new legislation will replace the terms with more child-focussed language, such as ‘parenting orders’ and ‘parenting time.’ Many judges and lawyers already employ such neutral terms, but having it enshrined in the law signals a definite shift in the thinking of the legal community. While some may view this as window dressing, others who have seen the financial and emotional expense of fighting for ‘custody’ can appreciate the real difference a subtle linguistic change can make. The proposed legislation will also introduce criteria for determining whether a proposed parenting order is in a child’s best interest. Most would be amazed to learn that the Divorce Act contains no criteria to determine whether any specific order related to a child (whether they can move with mom to Cabo, whether they should spend Chanukkah with their father, etc). Up until now, judges have had to make reference to provincial statutes governing custody and access, and judicial decisions, for guidance as to how to make these decisions. It is likely that the proposed legislation will simply adopt the concepts already found in most provincial statutes. The final major change in relation to custody and access is introducing criteria for mobility cases, those where one party asks to move away with the child after separation. As it stands currently, there are no statutory criteria for determining these cases – federal or provincial. In 1993, the Supreme Court of Canada released its decision in Gordon v Goertz, which is the governing decision on mobility cases. The Court held that each case must be decided on its facts, but enumerated a list of factors to consider. The intervening 24 years has seen a number of judicial decisions add to the framework that the court must apply. Mobility cases are notoriously fact-specific – as it stands, it is fair to say that the dominant factor is the presiding judge’s view of whether they think the particular move will benefit the child or not. It will be interesting to see how the federal government formulates the ‘guidance’ it provides to judges, and whether it will depart significantly from how the law has developed. If you have a question as to how the new changes to the Divorce Act could affect you, or you have any questions in relation to custody, access or mobility contact a member of our Family Law Team “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawMay 23, 2018June 16, 2020
Legal Grounds For Will Challenges The loss of a loved one can be a devastating and overwhelming experience. While mourning a loss, you may find yourself scrambling to ensure that all of your family’s affairs are in order, especially if you are listed as an Executor, Administrator, or Trustee of an Estate or Trust for the deceased. However, many individuals have also experienced being left out of the deceased’s will and believe that they are entitled to a share. If someone comes to that realization, it is difficult to determine where to begin, as the law surrounding challenges to a will is complicated. Devry Smith Frank LLP’s (DSF) Estates Litigation lawyers are able to advise clients on how to proceed with your matter and provide advice and support from start to finish, looking out for your best interests, to achieve the best result when challenging the validity of a will. There are three common types of legal grounds on which you may challenge the validity of a will: If the will fails to comply with the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. Wills prepared by legal professionals will comply with these rules, while a majority of home-made ones do not. If the deceased had the capacity to make the will. Did the deceased know what property and assets they have and that the will would be disposing of these assets after their death? Did they have a true understanding of any obligations they may have to spouses and children? A challenge on this ground would require hiring expert medical witnesses to review medical records and retroactively assess the deceased’s mental capacity at the time the will was made. Whether there were any suspicious circumstances surrounding the drafting of the will or whether the deceased was under any undue influence. The will must represent the true intentions of the deceased. Undue influence can occur when a person feels compelled to honour the wishes of someone making a direct or implied threat, or attempts to leverage a person’s weakened state to their advantage. A child convinces a parent to remove a sibling from the will. A will signed on the deceased’s death bed leaving everything to a caregiver may give rise to a challenge on the grounds of suspicious circumstances. If you are experiencing any of the issues mentioned above, it is important to seek qualified legal advice from an Estates Litigation lawyer. For further information or assistance, please contact our office directly by calling (416) 449-1400 or emailing info@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesMay 16, 2018July 5, 2023
Part 1: The Construction Act – Proposed Changes to the Construction Lien Act Part 1: The Construction Act – Proposed Changes to the Construction Lien Act This is Part 1 of a continuing blog series on the proposed changes to the Construction Lien Act and generally, the enactment of Ontario’s new Construction Act. Background The Construction Lien Act (“CLA”), introduced in 1983, grants special protections to people involved in the construction industry. The CLA recognizes the special nature of the construction business. This year, the Construction Act will come into force, ushering in a new era for the construction industry in Ontario with new rules and processes that the industry will have to get used to. The New Rules and the Proposed Changes Bill 142 was introduced in order to improve efficiency and competitiveness for construction businesses. Below is a discussion of a few of the key amendments that have been proposed. 1) Prompt Payment A prompt payment regime has been proposed. Several jurisdictions throughout the world have enacted similar initiatives. The prompt payment provisions have prescribed timelines for payment to contractors and subcontractors. The proposed amendment is intended to speed up the payment process. 2) Special Adjudication Currently, the only recourse that contractors and subcontractors have relating to improvements is with the courts. Bill 142 has introduced an interim, binding dispute resolution system, whereby any party can refer a dispute to a registered adjudicator during the course of a project. The proposed interim dispute resolution process provides quick decisions relating to disputes, which will minimize disruptions to projects. 3) Timelines Related to Liens Bill 142 proposes extended preservation and perfection periods. Currently, a lien is only preserved if it is registered within 45 days. The amendments seek to extend the preservation period to 60 days. Under the present CLA, a lien claimant has 45 days to perfect the lien. Bill 142 seeks to extend the perfection period to 90 days from the last day on which the lien could have been preserved. The Potential Effects The prompt payment regime and new interim adjudication system will likely reduce time and money spent on litigation in the construction industry. This will hopefully translate to fewer disruptions in the course of a project. Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction LawMay 9, 2018June 16, 2020
When Does an Executor Pass their Accounts? A passing of accounts is essentially an estate audit. Much like the CRA can pour over your tax returns with a fine tooth comb, a beneficiary, and later a judge, can review your estate accounting. This is because an executor is required to account for his/her actions to the beneficiaries. However, there is not always a requirement for a trustee to go through the formal process of passing the estate accounts. In many situations, where there is no concern over the actions of the trustee or the estate is small in nature, the trustee simply keeps his estate accounts and the beneficiaries informally approve them. In my experience, more than 85% cases never require a formal passing of accounts. Yet, in some more complicated or contentious estates, a beneficiary can compel the estate trustee to pass the accounts by obtaining a court order. There are many reasons why a beneficiary may require an estate trustee to pass his or her accounts. For instance, if there is a lack of disclosure or communication from the estate trustee, if the beneficiary objects to certain transactions performed by the estate trustee or if the beneficiary objects to the amount of compensation claimed by the estate trustee. Often, a request for an order requiring an estate trustee to pass his or her accounts is sought along with other relief, such as a request for an order removing and replacing the estate trustee. In some cases, the estate trustee may also apply voluntarily to pass his or her accounts. There are several reasons why the estate trustee may wish to pass his or her accounts. First, the passing, if approved, exonerates the trustee from any liability with respect to the accounts (fraud and other errors are exempt). Secondly, it allows the estate trustee to take his or her compensation when the consent of the beneficiaries cannot be obtained. If you are an executor struggling with beneficiaries who are uncooperative, voluntarily passing your estate accounts is something worth considering. As a general matter of practice, the estate trustee should always maintain accurate and up-to-date accounts so that an accounting can be provided if requested or required. If you have any questions or concerns, please contact our Estates Litigation group or call us directly at (416) 449-1400 to speak with an Estates Litigation Lawyer today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesApril 16, 2018June 16, 2020
Criminal Record vs. Police Records Those who first come into contact with the criminal justice system often want to know – will I end up having a criminal record? The typical answer has been that you will only have a criminal record if you are convicted of a criminal offence. However, that answer and the definition of a “criminal record” becomes unclear when considering how police and other documents are handled in cases where there is no criminal conviction. People with cases where police did not lay charges, where charges were withdrawn or where a court dismissed charges could still have police records out there that contain negative allegations or information. Depending on the police service involved, these records could be accessed in a variety of scenarios, including cases where people are applying for work. A couple of years ago, the Ontario government seemed to have a solution. The Police Records Check Reform Act was introduced and passed unanimously by the Ontario legislature to ensure that individuals with non-conviction records will not have those records shared with the public and will not have them disclosed unless there are exceptional circumstances. The Police Records Check Reform Act was an attempt to create a standard framework regarding how police background checks are conducted. This new legislation outlines three types of record checks. There is a “Criminal record check” and “Criminal record and judicial matters check” as well as the more comprehensive “Vulnerable sector check”, where non-conviction information can be disclosed only when certain criteria are fulfilled. The Act also requires the consent of the individual or subject being checked in order for the record request to proceed. Despite the Act being given Royal Assent in December of 2015, it still has not become law. Unfortunately, since it has not yet been enacted, those who have had charges withdrawn can still be at risk when it comes to employment, education, traveling, and volunteering, among other opportunities. The Ministry of Community Safety and Correctional Services has said that it has not become law yet because they are “still designing the regulations.” While they are continuing to design the regulations, a number of Ontarians have become victims of the current situation. In a recent article by The Toronto Star, several examples were highlighted where information in non-conviction cases was disclosed resulting in negative consequences for those involved. A woman was on track to become an RCMP officer when a record check pulled up “three unproven allegations”. She claimed to have not known anything about these allegations and does not know if it was because of mistaken identity, but it drastically changed her life. The other, involved a man that was charged with assaulting his wife. He denied the allegations made by his wife, who suffered from dementia. The Crown did not proceed with the matter and the man was not convicted. However information about the charge remained on his record and was subsequently used to deny him entry to visit his sick daughter in hospital. The above are examples of how under the current state of the law, people with non-conviction records have been treated as if they have been convicted of a crime. For those who have not been charged or those who have had those charges withdrawn, it seems that there are other records that could show up in a criminal background check. This includes records such as whether the individual was part of an investigation, whether the individual was ever a witness or victim to a crime as well as any complaints or allegations that have been made (by or about) the individual. Disclosing police records of those who have not been charged or who have had their charges withdrawn or dismissed runs against the presumption of innocence. Despite no finding of guilt against them, these individuals can end up losing out on employment opportunities or can otherwise have their freedom restricted (IE. to enter hospitals or cross borders). It also appears they are afforded little opportunity to clear their name, as there is no proceeding within which they can defend themselves. The Police Records Check Reform Act appears to be a possible answer to ensure this “innocent” segment of the population is protected from the disclosure of information that should be private. However, we will not know for certain until the Act becomes law and the regulations are enacted. A question still remains as to whether the regulations will adequately protect such non-conviction information. Unfortunately, for those who have already had sensitive and private information improperly disclosed – the damage appears to have already been done. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 19, 2018June 16, 2020