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Common misconceptions that may arise in Family Law cases

By Justin Clark and Ida Mirzadeh

If you have ever been involved in a family law dispute or been part of a discussion with respect to popular family law issues such as child support or property rights, you may well have heard some of the following common misconceptions:

  • 1) “Common Law Spouses have the same property rights as Married Spouses”

    There is no denying that the definition of “spouse” has evolved over the past few years. Our courts are becoming increasingly more inclined to provide a common law spouse with rights that are similar to married couples, especially if it is a longer relationship resembling a marriage. However, it is important to note the differences between married and unmarried spouses and the impact it will have when dividing property acquired during your relationship upon separation. Unlike married spouses, common law spouses generally have to prove that they contributed to the acquisition, preservation or maintenance of property before they may obtain an interest in it. There is no automatic right to a division of property.

  • 2) “Child Support ends when my Child turns 18”

    Although it is possible that child support could terminate when your child turns 18 this is not an automatic result, unless it is previously agreed to in writing or forms part of a court order. Children over the age of 18 who continue to attend school may still be entitled to child support. If you are currently paying child support it is wrong to assume that you may stop payments upon your child’s 18th birthday – You are likely to owe arrears of support. Always seek the advice of a family law lawyer prior to unilaterally terminating your support payments.

  • 3) “There is no Child Support Payable in a Shared Parenting Arrangement”

    Many believe that if the parents equally share time with their children that no child support will be payable. Child support is based on income and how much time the children spend with each parent. Therefore if your income is more than that of your spouse’s, a shared parenting arrangement is not likely to terminate your child support obligation.

  • 4) “Re-Marriage or Re-Partnering will Terminate the obligation to pay or receive Spousal Support ”

    Section 14.7 of the Spousal Support Advisory Guidelines discusses this concept in detail. There is little consensus in the decided cases about whether or not support should terminate once the support recipient is in a new committed relationship. Remarriage does not mean an automatic termination of spousal support. Certainly a remarriage can result in a fresh look and a reconsideration of the issue which could lead to a reduction or termination, however, this is not an automatic result, unless of course, it is specifically provided for in a Signed Agreement or Court Order. There are many factors that are considered when it comes to varying a spousal support order or determining whether there has been a material change in circumstances.

  • 5) “My Spouse moved out of our Family Home therefore I can Change the Locks”

    Just because you are listed as the sole legal owner of the property you occupied with your spouse during your marriage, does not mean that you have the authority to change the locks. Until this matter is addressed by way of a written agreement or court order, married spouses have a right to reside in the home, and participate in the sale or remortgaging of the home, even though they are not on title. It is crucial that you seek the advice of a family law lawyer prior to changing locks even if you are solely on title.

  • 6) “Financial Disclosure is not Necessary in my Case”

    The invasive and time consuming task of having to dig back three years (or even further) to disclose private and confidential financial documents like your bank and credit card statements to your former spouse, seems more like a form of punishment than a means to achieve an amicable resolution. In every family law case that deals with support or property, however, financial disclosure is required. From court actions to separation agreements and even when parties are simply signing a marriage contract, they need to exchange full and frank financial disclosure. If privacy is a concern, a good way to avoid having something as private as your tax returns filed as public record in court is to pursue out of court settlements by way of processes such as mediation and collaborative family law.

It is important to remember that there are no hard and fast rules when it comes to resolving family law issues. Every family law matter is different. We encourage our clients to remember that their disputes are unique and the final outcome will depend on a variety of different factors, which we as family law professionals can help you navigate through during this difficult and emotional time. If you or anyone you know has questions similar to the ones we have listed above, please contact a member of our family law group to provide you with the benefit of sound legal advice.

Justin Clark is a Partner at Simmons da Silva LLP

Ida Mirzadeh is an Associate at Simmons da Silva LLP

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

By Justin Clark and Ida Mirzadeh

If you have ever been involved in a family law dispute or been part of a discussion with respect to popular family law issues such as child support or property rights, you may well have heard some of the following common misconceptions:

  • 1) “Common Law Spouses have the same property rights as Married Spouses”

    There is no denying that the definition of “spouse” has evolved over the past few years. Our courts are becoming increasingly more inclined to provide a common law spouse with rights that are similar to married couples, especially if it is a longer relationship resembling a marriage. However, it is important to note the differences between married and unmarried spouses and the impact it will have when dividing property acquired during your relationship upon separation. Unlike married spouses, common law spouses generally have to prove that they contributed to the acquisition, preservation or maintenance of property before they may obtain an interest in it. There is no automatic right to a division of property.

  • 2) “Child Support ends when my Child turns 18”

    Although it is possible that child support could terminate when your child turns 18 this is not an automatic result, unless it is previously agreed to in writing or forms part of a court order. Children over the age of 18 who continue to attend school may still be entitled to child support. If you are currently paying child support it is wrong to assume that you may stop payments upon your child’s 18th birthday – You are likely to owe arrears of support. Always seek the advice of a family law lawyer prior to unilaterally terminating your support payments.

  • 3) “There is no Child Support Payable in a Shared Parenting Arrangement”

    Many believe that if the parents equally share time with their children that no child support will be payable. Child support is based on income and how much time the children spend with each parent. Therefore if your income is more than that of your spouse’s, a shared parenting arrangement is not likely to terminate your child support obligation.

  • 4) “Re-Marriage or Re-Partnering will Terminate the obligation to pay or receive Spousal Support ”

    Section 14.7 of the Spousal Support Advisory Guidelines discusses this concept in detail. There is little consensus in the decided cases about whether or not support should terminate once the support recipient is in a new committed relationship. Remarriage does not mean an automatic termination of spousal support. Certainly a remarriage can result in a fresh look and a reconsideration of the issue which could lead to a reduction or termination, however, this is not an automatic result, unless of course, it is specifically provided for in a Signed Agreement or Court Order. There are many factors that are considered when it comes to varying a spousal support order or determining whether there has been a material change in circumstances.

  • 5) “My Spouse moved out of our Family Home therefore I can Change the Locks”

    Just because you are listed as the sole legal owner of the property you occupied with your spouse during your marriage, does not mean that you have the authority to change the locks. Until this matter is addressed by way of a written agreement or court order, married spouses have a right to reside in the home, and participate in the sale or remortgaging of the home, even though they are not on title. It is crucial that you seek the advice of a family law lawyer prior to changing locks even if you are solely on title.

  • 6) “Financial Disclosure is not Necessary in my Case”

    The invasive and time consuming task of having to dig back three years (or even further) to disclose private and confidential financial documents like your bank and credit card statements to your former spouse, seems more like a form of punishment than a means to achieve an amicable resolution. In every family law case that deals with support or property, however, financial disclosure is required. From court actions to separation agreements and even when parties are simply signing a marriage contract, they need to exchange full and frank financial disclosure. If privacy is a concern, a good way to avoid having something as private as your tax returns filed as public record in court is to pursue out of court settlements by way of processes such as mediation and collaborative family law.

It is important to remember that there are no hard and fast rules when it comes to resolving family law issues. Every family law matter is different. We encourage our clients to remember that their disputes are unique and the final outcome will depend on a variety of different factors, which we as family law professionals can help you navigate through during this difficult and emotional time. If you or anyone you know has questions similar to the ones we have listed above, please contact a member of our family law group to provide you with the benefit of sound legal advice.

Justin Clark is a Partner at Simmons da Silva LLP

Ida Mirzadeh is an Associate at Simmons da Silva LLP

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.

Wills and Privacy

By Howard Simmons

Wills are a personal and private matter. The only ones who know what is in your will are you, your lawyer, and anyone you might tell. Otherwise, a will is a private matter.

On your death, your will probably won’t remain a private matter. Most wills require your executor to probate your will. To probate a will means to prove the will in court and pay the Estate Administration Tax on the assets. Why probate a will, especially if there will be a tax? The reason is to deal with many assets of the estate, such as real estate, larger bank accounts, investments, and court actions. Applying to court for probate becomes a necessity. To probate or prove a will in court is usually not problem or difficulty, especially if your lawyer prepared the will.

Unfortunately, when you probate your will, it becomes a public document. Anyone can go to the court, pay the required fee, and obtain a copy both of your will and the amount of your assets shown when the application for probate was made.

There are privacy laws in place and our concern for privacy about our personal information is much greater than ever. Unfortunately, in modern life, so much is no longer private. Someone in the digital world already, and legally, knows a lot about you. Someone knows where you drive your car, if you use google maps. Someone knows what you are purchasing when you purchase online. Facebook knows your interests and targets its ads appropriately. Then there are the fraudulent uses and hacking that take place. Even in death, your personal information can be made public.

There are ways to avoid public disclosure. It is common tax planning to do a separate will if there are assets in a corporation. Here, this separate will does not normally need probate and remains private. There are trusts that can be set up to own assets and here no probate will be needed. A beneficiary designation in life insurance, RRSPs and RRIFs are also not public, as also is the case with joint ownership of investments. However, these approaches are not always appropriate.

For most people, your last wishes in your will dealing with all of your assets will be available to the public.

Howard Simmons is a Partner at Simmons da Silva LLP

Email: howard@sdslawfirm.com

Telephone: 905-457-1660 ext 245

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

By Howard Simmons

Wills are a personal and private matter. The only ones who know what is in your will are you, your lawyer, and anyone you might tell. Otherwise, a will is a private matter.

On your death, your will probably won’t remain a private matter. Most wills require your executor to probate your will. To probate a will means to prove the will in court and pay the Estate Administration Tax on the assets. Why probate a will, especially if there will be a tax? The reason is to deal with many assets of the estate, such as real estate, larger bank accounts, investments, and court actions. Applying to court for probate becomes a necessity. To probate or prove a will in court is usually not problem or difficulty, especially if your lawyer prepared the will.

Unfortunately, when you probate your will, it becomes a public document. Anyone can go to the court, pay the required fee, and obtain a copy both of your will and the amount of your assets shown when the application for probate was made.

There are privacy laws in place and our concern for privacy about our personal information is much greater than ever. Unfortunately, in modern life, so much is no longer private. Someone in the digital world already, and legally, knows a lot about you. Someone knows where you drive your car, if you use google maps. Someone knows what you are purchasing when you purchase online. Facebook knows your interests and targets its ads appropriately. Then there are the fraudulent uses and hacking that take place. Even in death, your personal information can be made public.

There are ways to avoid public disclosure. It is common tax planning to do a separate will if there are assets in a corporation. Here, this separate will does not normally need probate and remains private. There are trusts that can be set up to own assets and here no probate will be needed. A beneficiary designation in life insurance, RRSPs and RRIFs are also not public, as also is the case with joint ownership of investments. However, these approaches are not always appropriate.

For most people, your last wishes in your will dealing with all of your assets will be available to the public.

Howard Simmons is a Partner at Simmons da Silva LLP

Email: howard@sdslawfirm.com

Telephone: 905-457-1660 ext 245

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

The Defence of Failure to Understand and Other Reasons for ILA

By Bruce Duggan

Independent Legal Advice

One of the most frequent questions/irritants Borrowers raise/experience in a commercial transaction is the requirement for their spouse to obtain independent legal advice. Typically, the complaint is that the spouse knows that what they are signing is a guarantee and that it is an inconvenient and needless expense to have to obtain independent legal advice, especially if it is being repeated for a second time in the case of refinancing.

The function of independent legal advice is to overcome defences that the Bank would not have been aware of. Defences such as failure to understand, mistake, undue influence, duress, fraud and misrepresentation are ready weapons available to guarantors. If successful, any of these defences would leave the guarantee or other loan documents signed by such person unenforceable. This article reviews the defence of failure to understand also known as non est factum.

Failure to Understand/Non Est Factum

The basis of this defence is that the person signing did not understand the document signed, that the document was represented as being different from what the person signing thought they were signing and they were not careless in signing. Where this defence is established it becomes the Bank’s obligation to prove that the person signing did know what they were signing. Such “at risk” people can include those who have, for example little formal education, a lack of fluency in English, little understanding of the purpose of the financing or a lack of understanding regarding the loan terms. This defence is demonstrated in these two examples:

  • Bertolo v. Bank of Montreal: Mrs. Bertolo was the widow of a post office employee who died in 1965. She had no business experience and little formal education. She was not fluent in English and was unable to read and discern such documents as promissory notes, collateral mortgages and financial statements. She took no part in the negotiations for the loan and was unaware of the terms of either the business purchase being financed or the bank’s loan agreements. “All she knew”, the trial judge found, “was that her son was buying a restaurant and she was willing to help him”. The Bank required ILA but it was provided by the same lawyer acting for the Bank and the Borrower and so was not “independent”. The bank was unable to enforce its loan agreement against Mrs. Bertolo.
  • Chaplin & Co., Ltd. v. Brammall: Chaplin & Co. agreed to supply goods to Mr. Brammall on credit if his wife would guarantee payment. Chaplin & Co. sent the husband a form of guarantee in order that he might obtain his wife’s signature to it, leaving the matter entirely to him. The husband obtained his wife’s signature without sufficiently explaining the nature of the document which she did not understand. No ILA was obtained. The company was unable to enforce its guarantee against Mrs. Brammall.

The Consequences for the Bank

The mere lack of independent legal advice does not invalidate lending agreements or guarantees but in the absence of ILA, the Bank becomes responsible for the manner in which the bank documents are signed.

In the above case, when Chaplin & Co left it entirely up to Mr. Brammall to obtain his spouse’s signature to the guarantee, Chaplin & Co assumed the consequence of Mr. Bartolo obtaining his spouse’s signature without her understanding what she was signing.

The “I” in ILA is critical. In Bartolo, above, the Bank did require ILA but Mrs. Bartolo received it from the lawyer representing both the Bank and the Borrower and so the legal advice could not be said to be independent. Given the evidence of Mrs. Bartolo, the Bank could not prove that the transaction was adequately explained to her. The bank had to abide by the consequences of Mrs. Bartolo signing without understanding the terms and consequences of the transaction.

Defending against claims of non est factum

Where a person signing loan documents does not receive a financial benefit from a lending transaction (for example, the spouse who is not a shareholder of the borrower), the Bank must always be in a position to prove that the person signing the guarantee, for example, knew what they were signing. In the absence of ILA, the Bank has to prove that the person who otherwise can credibly claim non est factum did, in fact, receive a proper explanation of or had an accurate understanding of the loan documents. Obviously, proving this can be very difficult.

The adequacy or inadequacy of legal advice received by the person signing is never an issue: the Bank is not responsible for the quality of the legal advice provided by an independent lawyer. If the legal advice was wrong or insufficient then that is left as a problem as between the independent lawyer giving ILA and the person signing. It is not up to the Bank to enquire whether the ILA was sufficient.

Bruce Duggan is a certified specialist in corporate and commercial law, a partner at Simmons, da Silva LLP and external counsel to a Canadian chartered bank for the past 25 years.

Andrea Wong is a lawyer at Simmons, da Silva LLP and assisted with research for this article.

This article by necessity is general in nature and is not legal advice. For more information please see www.sdslawfirm.com

By Bruce Duggan

Independent Legal Advice

One of the most frequent questions/irritants Borrowers raise/experience in a commercial transaction is the requirement for their spouse to obtain independent legal advice. Typically, the complaint is that the spouse knows that what they are signing is a guarantee and that it is an inconvenient and needless expense to have to obtain independent legal advice, especially if it is being repeated for a second time in the case of refinancing.

The function of independent legal advice is to overcome defences that the Bank would not have been aware of. Defences such as failure to understand, mistake, undue influence, duress, fraud and misrepresentation are ready weapons available to guarantors. If successful, any of these defences would leave the guarantee or other loan documents signed by such person unenforceable. This article reviews the defence of failure to understand also known as non est factum.

Failure to Understand/Non Est Factum

The basis of this defence is that the person signing did not understand the document signed, that the document was represented as being different from what the person signing thought they were signing and they were not careless in signing. Where this defence is established it becomes the Bank’s obligation to prove that the person signing did know what they were signing. Such “at risk” people can include those who have, for example little formal education, a lack of fluency in English, little understanding of the purpose of the financing or a lack of understanding regarding the loan terms. This defence is demonstrated in these two examples:

  • Bertolo v. Bank of Montreal: Mrs. Bertolo was the widow of a post office employee who died in 1965. She had no business experience and little formal education. She was not fluent in English and was unable to read and discern such documents as promissory notes, collateral mortgages and financial statements. She took no part in the negotiations for the loan and was unaware of the terms of either the business purchase being financed or the bank’s loan agreements. “All she knew”, the trial judge found, “was that her son was buying a restaurant and she was willing to help him”. The Bank required ILA but it was provided by the same lawyer acting for the Bank and the Borrower and so was not “independent”. The bank was unable to enforce its loan agreement against Mrs. Bertolo.
  • Chaplin & Co., Ltd. v. Brammall: Chaplin & Co. agreed to supply goods to Mr. Brammall on credit if his wife would guarantee payment. Chaplin & Co. sent the husband a form of guarantee in order that he might obtain his wife’s signature to it, leaving the matter entirely to him. The husband obtained his wife’s signature without sufficiently explaining the nature of the document which she did not understand. No ILA was obtained. The company was unable to enforce its guarantee against Mrs. Brammall.

The Consequences for the Bank

The mere lack of independent legal advice does not invalidate lending agreements or guarantees but in the absence of ILA, the Bank becomes responsible for the manner in which the bank documents are signed.

In the above case, when Chaplin & Co left it entirely up to Mr. Brammall to obtain his spouse’s signature to the guarantee, Chaplin & Co assumed the consequence of Mr. Bartolo obtaining his spouse’s signature without her understanding what she was signing.

The “I” in ILA is critical. In Bartolo, above, the Bank did require ILA but Mrs. Bartolo received it from the lawyer representing both the Bank and the Borrower and so the legal advice could not be said to be independent. Given the evidence of Mrs. Bartolo, the Bank could not prove that the transaction was adequately explained to her. The bank had to abide by the consequences of Mrs. Bartolo signing without understanding the terms and consequences of the transaction.

Defending against claims of non est factum

Where a person signing loan documents does not receive a financial benefit from a lending transaction (for example, the spouse who is not a shareholder of the borrower), the Bank must always be in a position to prove that the person signing the guarantee, for example, knew what they were signing. In the absence of ILA, the Bank has to prove that the person who otherwise can credibly claim non est factum did, in fact, receive a proper explanation of or had an accurate understanding of the loan documents. Obviously, proving this can be very difficult.

The adequacy or inadequacy of legal advice received by the person signing is never an issue: the Bank is not responsible for the quality of the legal advice provided by an independent lawyer. If the legal advice was wrong or insufficient then that is left as a problem as between the independent lawyer giving ILA and the person signing. It is not up to the Bank to enquire whether the ILA was sufficient.

Bruce Duggan is a certified specialist in corporate and commercial law, a partner at Simmons, da Silva LLP and external counsel to a Canadian chartered bank for the past 25 years.

Andrea Wong is a lawyer at Simmons, da Silva LLP and assisted with research for this article.

This article by necessity is general in nature and is not legal advice. For more information please see www.sdslawfirm.com

Acknowledging Fear

By Noel da Silva

There is no getting around the role that fear plays in reparation and divorce. Every front line professional whether they are Family Health Professionals, Financial Professionals, Coaches or Lawyers, can attest to this.

The fear factor!

There are many sources of fear.

Fear can include fear of the unknown. Separation for most people a circumstance they are not familiar with. Terrible apprehension comes from asking the question “Am I going to lose my kids” in a custody and access dispute. “How am I going to manage financially”, is another very real concern. People involved in a breakup are very afraid of publicity. Sometimes spouses or partners do and say awful things to each other. Police and the Children Aid Society have often had to become involved with families. At other times it is the teacher and schools that discover the families difficult problems.

All the professionals who help separating families in distress have a unique opportunity. We can best hold by steering our clients away from conflict towards settlement oriented solutions that reduce conflict and its damage to the children and spouses.

A conversation that produces an accurate detailing of the steps forward to obtain a separation agreement and closure is the first step towards calming the person’s fear. Screening for domestic violence which is a necessary step in keeping abused spouses safe can be calming once the abused spouse is in contact with a family health professional healing can start.

Even knowing the worst that can happen, while not scaring the person can have a calming effect. This won’t mean having to accept a negative ¬result or position. It does mean formulating a plan, understanding next steps and actually taking those steps this is crucial towards getting rid of the fear factor.

Collaborative Law or Collaborative Practice is an excellent way to deal with fear. It allows for each parties concerns to be voiced and most importantly heard. Each spouse is allowed to speak from the heart and state what their goals are. This usually brings out the rational best in people. Even when a goal is to avoid problems or avoiding conflict is an expressed goal it is something concrete the professionals around the table at each collaborating settlement meeting need to understand and plan to deal with.

Talk is not enough. It is when clients see actual progress being made that they can start to take a deep breath. When they understand that their active, informed participation in the collaborative process is important this can be calming as they themselves are taking steps to resolve the conflict.

Clients find that the process of enquiry as to what each persons’ interests really are and what lies behind the positions they are taking is also calming as there is acknowledgement that they have been understood. Once a person in distress speaks; is heard and then is understood the next step in the collaborative process which is putting the options on the table for consideration, to solve each segment of the overall conflict, can take place.

Acknowledging and explaining our fears is part of the healing process for everyone. So there is no need to be afraid of fear and its expression. Creative solutions customized to meet each families needs, crafted into a separation agreement that reasonably protects both parties and their children is the best solution to conquering fear.

Apprehension built up over many years cannot be entirely eliminated. The understanding possible within the collaborative process that the parties are still a family, except one that does not look the same, is very helpful. When continuing future support are also considered and built into to the separation agreement families using the process of Collaborative Practice gain an extra measure of assurance. They may even be ready to relax with a nice beverage.

Noel da Silva is a Partner at Simmons da Silva LLP

Email: noel@sdslawfirm.com
Telephone: 905-457-1660 ext 229

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

By Noel da Silva

There is no getting around the role that fear plays in reparation and divorce. Every front line professional whether they are Family Health Professionals, Financial Professionals, Coaches or Lawyers, can attest to this.

The fear factor!

There are many sources of fear.

Fear can include fear of the unknown. Separation for most people a circumstance they are not familiar with. Terrible apprehension comes from asking the question “Am I going to lose my kids” in a custody and access dispute. “How am I going to manage financially”, is another very real concern. People involved in a breakup are very afraid of publicity. Sometimes spouses or partners do and say awful things to each other. Police and the Children Aid Society have often had to become involved with families. At other times it is the teacher and schools that discover the families difficult problems.

All the professionals who help separating families in distress have a unique opportunity. We can best hold by steering our clients away from conflict towards settlement oriented solutions that reduce conflict and its damage to the children and spouses.

A conversation that produces an accurate detailing of the steps forward to obtain a separation agreement and closure is the first step towards calming the person’s fear. Screening for domestic violence which is a necessary step in keeping abused spouses safe can be calming once the abused spouse is in contact with a family health professional healing can start.

Even knowing the worst that can happen, while not scaring the person can have a calming effect. This won’t mean having to accept a negative ¬result or position. It does mean formulating a plan, understanding next steps and actually taking those steps this is crucial towards getting rid of the fear factor.

Collaborative Law or Collaborative Practice is an excellent way to deal with fear. It allows for each parties concerns to be voiced and most importantly heard. Each spouse is allowed to speak from the heart and state what their goals are. This usually brings out the rational best in people. Even when a goal is to avoid problems or avoiding conflict is an expressed goal it is something concrete the professionals around the table at each collaborating settlement meeting need to understand and plan to deal with.

Talk is not enough. It is when clients see actual progress being made that they can start to take a deep breath. When they understand that their active, informed participation in the collaborative process is important this can be calming as they themselves are taking steps to resolve the conflict.

Clients find that the process of enquiry as to what each persons’ interests really are and what lies behind the positions they are taking is also calming as there is acknowledgement that they have been understood. Once a person in distress speaks; is heard and then is understood the next step in the collaborative process which is putting the options on the table for consideration, to solve each segment of the overall conflict, can take place.

Acknowledging and explaining our fears is part of the healing process for everyone. So there is no need to be afraid of fear and its expression. Creative solutions customized to meet each families needs, crafted into a separation agreement that reasonably protects both parties and their children is the best solution to conquering fear.

Apprehension built up over many years cannot be entirely eliminated. The understanding possible within the collaborative process that the parties are still a family, except one that does not look the same, is very helpful. When continuing future support are also considered and built into to the separation agreement families using the process of Collaborative Practice gain an extra measure of assurance. They may even be ready to relax with a nice beverage.

Noel da Silva is a Partner at Simmons da Silva LLP

Email: noel@sdslawfirm.com
Telephone: 905-457-1660 ext 229

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

How minority shareholders in Ontario can use the Courts

By Amrita Mann

Minority shareholders in private Ontario companies are given substantial protection by the Ontario Business Corporations Act. In fact, one of the main purposes of the Act is to impose restrictions and limitations on private corporations and the people who control and govern them to protect minority shareholders and third parties. Let me briefly explain these provisions

The act provides the following protection to minority shareholders:

1. Section 106: Minority shareholders may requisition the court to call a shareholders’ meeting

  • The court may call for a meeting of shareholders of a corporation upon being formally requested to by a director or shareholder. It can do so when the corporation doesn’t call for such a meeting because it is impracticable.

2. Section 148: Minority shareholders can insist that a corporation have audited financial statements

  • Upon a formal request by a shareholder, the court may direct a corporation to get its financial records audited if the corporation had sought and received an exemption its shareholders to get its financial records audited.

3. Section 149(8): A minority shareholder may apply to the court to have an auditor appointed

  • If a corporation does not have an auditor, the court may, upon the application of a shareholder or the Director, appoint and fix the remuneration of an auditor to hold office until an auditor is appointed by the shareholders.

A corporation, shareholder or director may apply to the court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation.

Upon an application, the court may make

  • (a) An order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute
  • (b) An order declaring the result of the disputed election or appointment
  • (c) An order requiring a new election or appointment and including directions for the management of the business and affairs of the corporation until a new election is held or appointment made
  • (d) An order determining the voting rights of shareholders and of persons claiming to own shares

5. Section 161(1): A minority shareholder may apply to court for an investigation

A security holder of a corporation may apply, with or without notice to the court for an order directing an investigation to be made of the corporation and any of its affiliates. The court may order an investigation if finds that

  • The corporation has been carried on with intent to defraud any person;
  • Its business or is being conducted in a manner that is oppressive or prejudicial to the interest of the security holder
  • It been formed for unlawful purpose or is being dissolved for an unlawful purpose;
  • Any person connected with the corporation’s formation acted fraudulently or dishonestly.

In addition to ordering an investigation, the court may also:

  • Appoint or replace an inspector and affix the remuneration;
  • Give notice to an interested person or dispense with such a notice;
  • Authorize an inspector to enter premises to examine and make copies of documents and records;
  • Order any person to produce documents or records;
  • Order an inspector to conduct hearing, administer and examine a person under oath, and prescribe rules of hearing;
  • Order a person to attend a hearing conducted by an inspector and give hearing;
  • Give directions to an inspector or any interested person on any matter arising in the investigation;
  • Order an inspector to make an interim or final report;
  • Determine whether a report should be made public;
  • Order discontinuing an investigation;
  • Order to pay the costs of the investigation.

6. Section 246, 247: A minority shareholder may take over litigation the corporation is not prosecuting, or defend a lawsuit the corporation is not defending

A complainant may seek the court’s intervention to initiate action on behalf of the corporation or intervene in an action involving the corporation to prosecute, defend, and discontinue any action on behalf of the corporation.

The court may consent to such an action if it is satisfied that

  • The directors of the corporation will not bring, diligently prosecute or defend or discontinue the action;
  • The complainant is acting in good faith; and
  • The action is in the corporation’s interest

The court may make an order

  • Authorizing the complainant or any other person to control the conduct of the action;
  • Giving directions for the conduct of the action;
  • Directing that any amount adjudged payable by a defendant in the action shall be paid directly to former and present security holders of the corporation or its subsidiary instead of to the corporation or its subsidiary
  • Requiring the corporation to pay reasonable legal fees and other costs by the complainant in connection with the action.

7. Section 207(1), (2), 208: A minority shareholder can apply for a court ordered winding up in certain circumstances, including unfair treatment at the hands of the majority

A corporation may be wound up by order of the court in the following circumstances

  • (a) Where the court is satisfied that in respect of the corporation any act by the corporation, any business or any powers of its directors are oppressive or unfairly prejudicial to a security holder
  • (b) Where the court is satisfied that a shareholder is entitled to demand the dissolution of the corporation following the occurrence of a specific event, and that winding up procedures have been launched against the corporation; the corporation has become insolvent, or there is another just and equitable reason for it to be wound-up
  • (c) Where the shareholders by special resolution authorize an application to be made to the court to wind up the corporation.

A winding-up order may be made upon the application of the corporation or of a shareholder or, where the corporation is being wound up voluntarily, of the liquidator or of a contributory or of a creditor having a claim of $2,500 or more.

Amrita Mann is a Partner at Simmons da Silva LLP

Email: amrita@sdslawfirm.com
Telephone: 905-861-2816

By Amrita Mann

Minority shareholders in private Ontario companies are given substantial protection by the Ontario Business Corporations Act. In fact, one of the main purposes of the Act is to impose restrictions and limitations on private corporations and the people who control and govern them to protect minority shareholders and third parties. Let me briefly explain these provisions

The act provides the following protection to minority shareholders:

1. Section 106: Minority shareholders may requisition the court to call a shareholders’ meeting

  • The court may call for a meeting of shareholders of a corporation upon being formally requested to by a director or shareholder. It can do so when the corporation doesn’t call for such a meeting because it is impracticable.

2. Section 148: Minority shareholders can insist that a corporation have audited financial statements

  • Upon a formal request by a shareholder, the court may direct a corporation to get its financial records audited if the corporation had sought and received an exemption its shareholders to get its financial records audited.

3. Section 149(8): A minority shareholder may apply to the court to have an auditor appointed

  • If a corporation does not have an auditor, the court may, upon the application of a shareholder or the Director, appoint and fix the remuneration of an auditor to hold office until an auditor is appointed by the shareholders.

A corporation, shareholder or director may apply to the court to determine any controversy with respect to an election or appointment of a director or auditor of the corporation.

Upon an application, the court may make

  • (a) An order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute
  • (b) An order declaring the result of the disputed election or appointment
  • (c) An order requiring a new election or appointment and including directions for the management of the business and affairs of the corporation until a new election is held or appointment made
  • (d) An order determining the voting rights of shareholders and of persons claiming to own shares

5. Section 161(1): A minority shareholder may apply to court for an investigation

A security holder of a corporation may apply, with or without notice to the court for an order directing an investigation to be made of the corporation and any of its affiliates. The court may order an investigation if finds that

  • The corporation has been carried on with intent to defraud any person;
  • Its business or is being conducted in a manner that is oppressive or prejudicial to the interest of the security holder
  • It been formed for unlawful purpose or is being dissolved for an unlawful purpose;
  • Any person connected with the corporation’s formation acted fraudulently or dishonestly.

In addition to ordering an investigation, the court may also:

  • Appoint or replace an inspector and affix the remuneration;
  • Give notice to an interested person or dispense with such a notice;
  • Authorize an inspector to enter premises to examine and make copies of documents and records;
  • Order any person to produce documents or records;
  • Order an inspector to conduct hearing, administer and examine a person under oath, and prescribe rules of hearing;
  • Order a person to attend a hearing conducted by an inspector and give hearing;
  • Give directions to an inspector or any interested person on any matter arising in the investigation;
  • Order an inspector to make an interim or final report;
  • Determine whether a report should be made public;
  • Order discontinuing an investigation;
  • Order to pay the costs of the investigation.

6. Section 246, 247: A minority shareholder may take over litigation the corporation is not prosecuting, or defend a lawsuit the corporation is not defending

A complainant may seek the court’s intervention to initiate action on behalf of the corporation or intervene in an action involving the corporation to prosecute, defend, and discontinue any action on behalf of the corporation.

The court may consent to such an action if it is satisfied that

  • The directors of the corporation will not bring, diligently prosecute or defend or discontinue the action;
  • The complainant is acting in good faith; and
  • The action is in the corporation’s interest

The court may make an order

  • Authorizing the complainant or any other person to control the conduct of the action;
  • Giving directions for the conduct of the action;
  • Directing that any amount adjudged payable by a defendant in the action shall be paid directly to former and present security holders of the corporation or its subsidiary instead of to the corporation or its subsidiary
  • Requiring the corporation to pay reasonable legal fees and other costs by the complainant in connection with the action.

7. Section 207(1), (2), 208: A minority shareholder can apply for a court ordered winding up in certain circumstances, including unfair treatment at the hands of the majority

A corporation may be wound up by order of the court in the following circumstances

  • (a) Where the court is satisfied that in respect of the corporation any act by the corporation, any business or any powers of its directors are oppressive or unfairly prejudicial to a security holder
  • (b) Where the court is satisfied that a shareholder is entitled to demand the dissolution of the corporation following the occurrence of a specific event, and that winding up procedures have been launched against the corporation; the corporation has become insolvent, or there is another just and equitable reason for it to be wound-up
  • (c) Where the shareholders by special resolution authorize an application to be made to the court to wind up the corporation.

A winding-up order may be made upon the application of the corporation or of a shareholder or, where the corporation is being wound up voluntarily, of the liquidator or of a contributory or of a creditor having a claim of $2,500 or more.

Amrita Mann is a Partner at Simmons da Silva LLP

Email: amrita@sdslawfirm.com
Telephone: 905-861-2816

Constructive role and relationship

By Noel da Silva

Cooperating with the Children’s Aid Society is the best course of action for relatives and the child, says Noel da Silva, in a brief analysis of the role of the agency

People have said in reference to almost any government agency that becomes involved in a legal matter, especially a court case, that they are the scary monster in the room. It is true that when you have the CRA, The Office of the Children’s lawyer, the Police, or the Public Trustee involved that the problems caused clearly complicate matters and escalate legal fees.

Consider however the opposite view.

I was recently asked a question about the Children’s Aid Society, where a grandparent was caring for their grandchild. The parent who had born the baby had a history of emotional, health and behavioural problems. The baby’s other natural parent had serious problems as well.

The problems of the parents came to the attention of the police. They in turn must have notified the Children’s Aid Society. It may have been another professional or agency that did so.

When the Children’s Aid Society intervened, they needed a place that was a safe haven for the child. They normally turn to the child’s family as the preferred resource for safe placement. The Society cannot after all, place all the children they are monitoring or trying to keep safe, in foster homes. There are not enough such approved homes and the Society does not have an unlimited budget.

What inevitably happens is that the family member, be it a grandparent, aunt or uncle, sister or brother, falls in love with the baby. It seems that human babies have the capacity to somehow make that happen. Is it built into our genes? I suspect so.

So the moral of the story is that when the Children’s Aid Society comes to rescue and protect a child that they as advocate for the child, become the protector of the relative actually caring for the child.

If and when they bring a court application and obtain an order placing the child in the relatives care the case for interim and permanent custody of the child with that relative becomes that much stronger. The longer the natural parent or parents continue to have problems the better the case for permanent custody by the relative becomes.

The takeaway is that cooperation with the Society, no matter how much their power scares you, may be the best course of action for the love struck relative and the child.

This blog was not sponsored by any government agency. It was not shown to nor was it approved by the workers of our local Children’s Aid Society.

Noel da Silva is a Partner at Simmons da Silva LLP

Email: noel@sdslawfirm.com
Telephone: 905-457-1660 ext 229

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice

By Noel da Silva

Cooperating with the Children’s Aid Society is the best course of action for relatives and the child, says Noel da Silva, in a brief analysis of the role of the agency

People have said in reference to almost any government agency that becomes involved in a legal matter, especially a court case, that they are the scary monster in the room. It is true that when you have the CRA, The Office of the Children’s lawyer, the Police, or the Public Trustee involved that the problems caused clearly complicate matters and escalate legal fees.

Consider however the opposite view.

I was recently asked a question about the Children’s Aid Society, where a grandparent was caring for their grandchild. The parent who had born the baby had a history of emotional, health and behavioural problems. The baby’s other natural parent had serious problems as well.

The problems of the parents came to the attention of the police. They in turn must have notified the Children’s Aid Society. It may have been another professional or agency that did so.

When the Children’s Aid Society intervened, they needed a place that was a safe haven for the child. They normally turn to the child’s family as the preferred resource for safe placement. The Society cannot after all, place all the children they are monitoring or trying to keep safe, in foster homes. There are not enough such approved homes and the Society does not have an unlimited budget.

What inevitably happens is that the family member, be it a grandparent, aunt or uncle, sister or brother, falls in love with the baby. It seems that human babies have the capacity to somehow make that happen. Is it built into our genes? I suspect so.

So the moral of the story is that when the Children’s Aid Society comes to rescue and protect a child that they as advocate for the child, become the protector of the relative actually caring for the child.

If and when they bring a court application and obtain an order placing the child in the relatives care the case for interim and permanent custody of the child with that relative becomes that much stronger. The longer the natural parent or parents continue to have problems the better the case for permanent custody by the relative becomes.

The takeaway is that cooperation with the Society, no matter how much their power scares you, may be the best course of action for the love struck relative and the child.

This blog was not sponsored by any government agency. It was not shown to nor was it approved by the workers of our local Children’s Aid Society.

Noel da Silva is a Partner at Simmons da Silva LLP

Email: noel@sdslawfirm.com
Telephone: 905-457-1660 ext 229

Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice