I Want a Divorce – What Are The Steps In Getting a Divorce in Ontario? Until married couples obtain a divorce, the law still considers them to be married, even if they are living separate and apart. This may have implications on spouses’ estates rights, entitlements to benefits and life insurance policies, and the ability to make end-of-life decisions for incapable spouses. Before seeking a divorce, it is important to obtain advice on how these rights may be affected. Interestingly, while many family law issues can be resolved outside of court, a divorce requires standardized court forms and a judge’s signature. You cannot avoid the court process if you want a divorce. Steps to Obtain a Divorce Eligibility in Ontario Before applying for a divorce, it is important to ensure that spouses meet the following three eligibility criteria: The spouses were legally married in Canada or in any other country; The spouses intend to separate permanently from one another, or they have already separated with no reasonable prospect of reconciliation; and At least one spouse has lived in Ontario for at least 12 months preceding his or her application for divorce. Breakdown of the Marriage There is only one basis on which a judge can grant a divorce – a “breakdown of the marriage”. This can be proven in one of three ways: (1) adultery; (2) cruelty; or (3) separation for a period of at least one year. By far the most common route couples choose to prove a breakdown of the marriage is the one year separation period. Couples who choose adultery or cruelty have the added (and difficult) burden of proving this in court, a task that is often expensive and lengthier than the one year waiting period. Additionally, spouses may begin their application for divorce at any time post-separation, but the order can only be granted after the expiration of the one year time period. Divorce Application and Corollary Issues The spouse who is seeking divorce becomes the Applicant in the proceedings and will prepare an Application. The particular form to be used will depend on whether any “corollary issues” arise from the spouses’ separation, such as child support, spousal support, and property division. If children are involved, judges are prevented from granting a divorce order unless they are satisfied that reasonable arrangements have been made for the support of the children. Judges may also refuse to grant a divorce unless there is satisfactory evidence that the remaining issues are resolved – often this is shown by way of a valid separation agreement. If corollary issues are in play, the Applicant will begin with a Form 08 – Application (General). If no corollary issues are present, the Applicant will use a Form 08A – Application (Divorce) to start the proceedings. Issue, Serve, and File Once the Application is complete, it must be taken to the appropriate courthouse where it gets stamped by a court clerk and assigned a court file number. This is referred to as “issuing” the Application. Following this, a copy of the Application must be personally served on the opposing spouse, who becomes the “Respondent” in the proceedings. Service must be done by somebody other than the Applicant, who is at least 18 years old. The person who served the Respondent must then complete an Affidavit of Service, to be sworn in front of a commissioner of oaths, then filed at the courthouse – spouses often hire process servers to complete these steps. Affidavit for Divorce Once the Respondent has been served, he or she has 30 days to deliver a response. If this 30 days expires without a response, the Applicant will complete an Affidavit for Divorce, along with three draft Divorce Orders. The Affidavit must stipulate all the details of the marriage, and prove that the corollary issues have been resolved (or that they are not issues at all – when parties have no property or children, Toronto (Any)for example). If there is insufficient evidence to this effect, the judge may refuse to grant the divorce order. Assuming the judge is satisfied with the evidence, he or she will sign the three draft orders provided, then mail one to each of the spouses, and keep one for the court file. 30-day Waiting Period The day the judge signs the divorce order triggers a final 30-day waiting period, after which the divorce takes effect. In the eyes of the law, the spouses’ marriage is then dissolved. Navigating the court process can be daunting, even when both spouses are on the same page and share the same goal to obtain a divorce. Hiring a lawyer from the outset provides the added assurance that documents are completed properly, and the procedure is followed in a timely manner. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 and schedule a consultation 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, Family LawNovember 23, 2018June 16, 2020
Canadian Courts and Mahr Agreements – Can My Mahr Agreement be enforced? We have discussed the topic of divorce in a previous blog post, however at Devry Smith Frank LLP, we are aware that typically, traditions vary in different cultures. In particular, the South Asian community. Family separation and divorce within the South Asian community is often seen as a taboo subject and notions of uncertainty as to whether a Mahr Agreement can actually be enforced, frequently arises. – Either promptly, at the time of the marriage or on a deferred basis, which allows for the wife to gain financial security in the event of unforeseen circumstances, such as the death of her husband or a separation. Occasionally, it is misperceived as a ‘bride price’ or ‘dowry’ which does not seem fitting, considering the agreement is not a prerequisite for marriage. Typically, it is a gift given to the bride from her husband when the stipulations of the contract of marriage is made. Over the years, there has been inconsistency in the rulings of Mahr agreements in Canadian courts. Nonetheless, some courts have deemed the contract to be one of a domestic nature and enforced it under the provisions of family law. As seen in Mohammadi v. Safari , a case in which Farzana acted as Counsel on behalf of the Applicant and whereby the ambiguity depicted within the Maher Agreement, led to what one would believe to be a partial enforcement. – Despite the Respondent’s opposing claim that the Mahr Agreement in which he initially agreed to, should be considered invalid. That said, the standards to which could make a Mahr agreement enforceable is very much akin to those of any other domestic contract. To be valid in Ontario, a Mahr must: Be in writing, signed by the involved parties and witnessed. Financial disclosure must be provided by the parties to one another Must be signed without duress Whilst the enforceability still depends on the specific facts of each case, it is imperative that you seek independent legal guidance. Talk to one of our South Asian lawyers today in our Toronto office location. For more information on how we can assist, please contact our office online or directly on (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, Family LawOctober 20, 2018July 5, 2023
Employment Bill 148 is Being Scrapped…But Which Parts Are Uncertain Last week Doug Ford announced that he was halting the implementation of a $15 per hour minimum wage in Ontario but it looks like he is seeking to additionally roll back other employment laws that have already come into force. Yesterday, October 2, 2018, Doug Ford announced in the Ontario legislature that he was going to scrap Bill 148, a bill enacted by the previous Liberal government (after a broad consultation) that increased protections for workers in an effort to alleviate the impacts of precarious work (see our previous blogs on Bill 148). Bill 148 introduced many new provisions to both Ontario’s Employment Standards Act and Ontario’s unionized Labour Relations Act. Some of the new provisions included a presumption that a worker is automatically an employee unless it is proven otherwise (an employee classification gets the most protection under labour and employment legislation), mandated scheduling provisions including the expansion of the “3 hour rule” (i.e. an employee gets paid for three hours of work if his/her shift is cancelled less than 48 hours before he or she was to commence working), equal pay for equal work laws between full and part-time workers, personal emergency leave provisions (10 days of emergency leave absences with 2 days of paid leave), and increased regulation on temporary help agencies. However, whether Bill 148 is going to be axed in its entirety or in a piecemeal fashion remains to be seen. Doug Ford’s statements in the legislature were incredibly broad, saying “We’re getting rid of Bill 148. We’re going to make sure we protect the front-line workers because 60,000 people lost their jobs under Bill 148 … We’re going to make sure we tell the world Ontario is open for business. We’re going to make sure we’re competitive around the world.” After Question Period, reporters swarmed Jim Wilson, Minister of Economic Development, Job Creation and Trade, with respect to Ford’s comments. Wilson scaled back Ford’s comments, stating that the government was still reviewing Bill 148 and a final decision had yet to be made. Wilson made statements that despite the Conservative government voting against the Bill when the Liberals introduced it, they were likely going to keep the $14 an hour minimum wage and other sections. Devry Smith Frank LLP will be monitoring the province’s efforts to scrap Bill 148. It is important to contact a labour and employment law lawyer to keep apprised of recent legislative developments and get advice on how it will impact your business or personal contracts. If you need assistance with labour and employment laws please contact one of our employment 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, Employment Law, Labour LawOctober 10, 2018March 27, 2024
Is Your Will Still Valid After A Recent Ontario Ruling? A recent decision stemming from the Ontario Superior Court of Justice is likely to have far-reaching implications on wills across the Province, and your will could be one of them. On September 11, 2018, Justice Sean Dunphy ruled that wills cannot leave the distribution of one’s assets to the discretion of one’s trustees. If it does, it will be invalid. A need to avoid the “basket clause” The “basket clause” is used when an individual has more than one will. The use of the clause enables the trustees to determine what assets fall into either will, rather than enumerating each asset in one of the wills. Until Justice Dunphy’s ruling, the validity of the basket clause had not been tested in the Ontario courts, however, based on the ruling, it is now clear that the use of the clause can invalidate a will. Given how many lawyers across Ontario rely on and utilize this “basket clause,” when drafting a will, it should come as no surprise that many established and well-respected estate planning lawyers in Ontario are concerned by Justice Dunphy’s ruling. The ruling: Milne Estate (Re), 2018 ONSC 4174, The case before Justice Dunphy concerned a couple who both passed away in October 2017. The couple each had two wills, a primary will and a secondary will, with “materially identical” language in each. Justice Dunphy found that the couples’ secondary wills were valid, and their primary wills were not. Reason being, the secondary wills of each testator (the person who made the will) vested all property of the testator in the executors, and therefore, the requirement of certainty of subject-matter was satisfied. By contrast, the primary wills effectively vested in the executors the entire discretion to determine retroactively whether any assets were vested under the will at death, based upon the executors’ view as to whether probate is necessary or desirable. The court found that it was the uncertainty contained within the primary wills that made those wills invalid. The language used in a will must be certain It is imperative that wills describe with certainty any property that is subject to them. The property or assets that are subject to a will must be ascertainable objectively based upon the expressed intent of the testator, without regard to discretion of the estate trustees exercised after the will has been executed. If your will includes the “basket clause”, or a similar type of clause, you may want to consider contacting a lawyer to update your estate plans. If you have questions about a current will, or need assistance with drafting a new will, contact one of the estate planning lawyers at Devry Smith Frank. This article is intended to inform and entertain. 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 EstatesOctober 2, 2018June 16, 2020
Ontario’s New Standard Lease Agreement Starting April 30, 2018 Padmapper released a rent report earlier this year showing Barrie as the third most expensive city in Canada to rent a two bedroom ($1,650/month), and the fifth most expensive for a one bedroom ($1,250/month). That’s an increase of roughly 15% from rental prices in 2016. With the Barrie rental market heating up, landlords and tenants alike must be aware of the new standard form lease that now applies to almost all residential tenancies in Ontario. As of April 30, 2018, landlords must use the new standard form lease for most private residential rental units. This includes single and semi-detached houses, apartment buildings, condominiums, and secondary units such as basement apartments. This lease must be used by both individual landlords and property management companies. Kathleen Wynne, the then-Premier of Ontario, announced that tenants in Ontario have had to endure illegal and hard to understand provisions in their lease agreements for too long. The new lease is intended to head off those issues by clarifying “understanding between landlords and tenants about what the rules are, what the agreement is and what the responsibilities of each is”. “We’re working to prevent those problems, those kinds of misunderstandings before they begin” Wynne commented. If a landlord is not using the standard lease, tenants can ask for one. The request must be in writing and if the landlord does not provide the standard lease within 21 days of a written request, the tenant may give 60 days’ notice to terminate the lease early. Tenants can also withhold a maximum of one month’s rent upon making a request for a standard lease, but otherwise must continue paying rent for the rest of the term of their lease, or until its early termination. The standard lease form contains: Mandatory fields that must be completed and cannot be altered or removed, including basic information about the tenant, landlord and tenancy terms. Optional additional terms where the landlord and tenant can agree on terms that are unique to the unit, provided that terms that are inconsistent with the Residential Tenancies Act will be void and unenforceable, such as prohibiting a tenant from having pets. General information for landlords and tenants on their rights and responsibilities. The purpose of this section is to avoid the problem of common illegal terms in tenancy agreements such as no pet-clauses and damage deposits other than rent deposits. If you are in need of a real estate lawyer, please visit our website and contact one of our real estate lawyers in Barrie, Toronto or Whitby today. In addition to real estate, our firm offers assistance in the areas of corporate law, wills, estates and litigation matters. Contact our Barrie office directly at 705-812-2100, or Cayley Rodd at cayley.rodd@devrylaw.ca. This article is intended to inform and entertain. 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, Real EstateSeptember 7, 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
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