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Collaborative Practice works

There are a few thousand Canadian families who embraced Collaborative Practice as a dispute resolution process with excellent results.

By Noel da SIlva

Heads up! Did you see the article in the July 2017 edition of Canadian Lawyer? In case you did not, here is my brief takeaway. No, not the article on marijuana in the workplace, but the one titled “Collaborative Practice Comes Into Its Own.” It chronicles how Collaborative Practice has started to permeate the family law landscape across Canada. I attended an ad hoc meeting at the International Academy of Collaborative Professionals (IACP), annual forum in Chicago a few short years ago. The genesis of a national Canadian group was given expression then. It was followed up at the IACP forum in Washington D.C.. Now Canada’s interdisciplinary group Collaborative Practice Canada is being launched.

If you are a lawyer, accountant, financial professional, psychologist, social worker, family professional or mediator you need to know about this development. It is directly relevant to many other professions such as medicine and people in government and the courts concerned about the crisis in resolving family law disputes.

There has been lots of interest provincially in Collaborative Practice and Collaborative Law since 2001. It is the acceptance from the public and likeminded professionals that has proliferated across Canada. Clients are coming to my office and asking about the Collaborative process of solving divorce, custody, access, support and property division disputes. This experience is shared all across Canada.

There are statutes in British Columbia, Saskatchewan and several U.S. states dealing with Collaborative Law. I recall one of our best litigators now Justice Marvin Kurz, of the Ontario Court of Justice who when requested to attend one of our Peel Halton Collaborative Practice meetings asked in jest if we were all going to sit around, hold hands and sing “Kumbaya”. Well, with great strides all across North America and around the world and now a national Canadian organization, Collaborative Professionals have gone well past the holding hands stage.

What’s the message? Collaborative Practice arrived long ago. Its foundations are stronger than ever and clients are asking for representation from a Collaborative Practice team or the individual parts of the team. There are a few thousand families who embraced this dispute resolution process with excellent results. They are quietly telling family and friends. Why? There are many reasons. Find out for yourself. Mainly, it works.

Noel da Silva is a Partner at Simmons da Silva LLP. He is family lawyer and mediator from Brampton, a trained Collaborative Professional, a member of Collaborative Practice Toronto, Peel Halton Collaborative Practice and the International Academy of Collaborative Professionals.

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

There are a few thousand Canadian families who embraced Collaborative Practice as a dispute resolution process with excellent results.

By Noel da SIlva

Heads up! Did you see the article in the July 2017 edition of Canadian Lawyer? In case you did not, here is my brief takeaway. No, not the article on marijuana in the workplace, but the one titled “Collaborative Practice Comes Into Its Own.” It chronicles how Collaborative Practice has started to permeate the family law landscape across Canada. I attended an ad hoc meeting at the International Academy of Collaborative Professionals (IACP), annual forum in Chicago a few short years ago. The genesis of a national Canadian group was given expression then. It was followed up at the IACP forum in Washington D.C.. Now Canada’s interdisciplinary group Collaborative Practice Canada is being launched.

If you are a lawyer, accountant, financial professional, psychologist, social worker, family professional or mediator you need to know about this development. It is directly relevant to many other professions such as medicine and people in government and the courts concerned about the crisis in resolving family law disputes.

There has been lots of interest provincially in Collaborative Practice and Collaborative Law since 2001. It is the acceptance from the public and likeminded professionals that has proliferated across Canada. Clients are coming to my office and asking about the Collaborative process of solving divorce, custody, access, support and property division disputes. This experience is shared all across Canada.

There are statutes in British Columbia, Saskatchewan and several U.S. states dealing with Collaborative Law. I recall one of our best litigators now Justice Marvin Kurz, of the Ontario Court of Justice who when requested to attend one of our Peel Halton Collaborative Practice meetings asked in jest if we were all going to sit around, hold hands and sing “Kumbaya”. Well, with great strides all across North America and around the world and now a national Canadian organization, Collaborative Professionals have gone well past the holding hands stage.

What’s the message? Collaborative Practice arrived long ago. Its foundations are stronger than ever and clients are asking for representation from a Collaborative Practice team or the individual parts of the team. There are a few thousand families who embraced this dispute resolution process with excellent results. They are quietly telling family and friends. Why? There are many reasons. Find out for yourself. Mainly, it works.

Noel da Silva is a Partner at Simmons da Silva LLP. He is family lawyer and mediator from Brampton, a trained Collaborative Professional, a member of Collaborative Practice Toronto, Peel Halton Collaborative Practice and the International Academy of Collaborative Professionals.

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

Whistle while you work

By Noel da Silva

Happy Days. Just like Fonzie, Richie and the rest of the Cunningham family on the 70’s sitcom Happy Days, it is great to go to work with a smile on your face, accomplish what your client wants and get paid to do it. This happened recently in a file in which an engaged couple wanted a Cohabitation Agreement that would become a Marriage Contract when they marry. Lawyers are often leery about doing this type of domestic contract as so many have been set aside by the courts. They are problematic because they can also be the source of a Law Society complaint.

After the initial approach from the client we decided to use the Collaborative Law method to negotiate the terms of the agreement. I only open a collaborative file if there is a properly trained lawyer representing the other party. Here I was fortunate to have such a person who was a very cordial, smart, detail oriented lawyer who is a member of Collaborative Practice Toronto.

During the first meeting with the client the financial disclosure aspect of the negotiations were discussed among many other subjects and issues. By the time our first collaborative meeting took place I was able to present a draft Financial Statement of the client to the other side along with a disclosure brief of the client’s assets, liabilities, income and tax returns.

Prior to the meeting a telephone call took place to discuss the agenda and what we wanted to accomplish for our clients. The open, respectful discussion was very helpful to make the first meeting efficient and to the point. The clients appreciated that. We were not wasting their money. The other lawyer also arrived at the first meeting with her client’s Financial Statement and disclosure documents.

Even though lawyers in the collaborative law/practice process maintain their roles as advocates, the clients were encouraged to speak and express their goals and everything they wanted to achieve with the agreement. We discussed their instructions, assets structure and how future acquired assets were to be dealt with. It is vital to have full participation from the clients. After all, it is their life and their agreement.

We set the date for the next meeting, assigned homework to the lawyers and parties. Then a debriefing session of a few minutes was held with each client and then with the lawyers only. The purpose was to see what we could do better next time, iron out any misconceptions and discuss any other concerns.

At the next meeting in Toronto, which was less than an hour in length, all remaining issues were ironed out. The sample property division calculation was explained and amended for clarification. The other lawyer generously took on the drafting task. I have revised that draft after a review. Once each client reviews it and signs, the deal will be done.

If you saw and heard a person in the car next to you, whistling on his way to and from work, it was me. It is terrific to practice law this way. The simple secrets for a takeaway were signing a participation agreement not to go to court, full disclosure, open, respectful dialogue and good faith negotiations. It is so refreshing!

Noel is a Brampton Family Lawyer and Mediator trained in the Collaborative Process. He is a member of Peel/Halton Collaborative Practice, Collaborative Practice Toronto, Ontario Collaborative Practice Federation and the International Association of Collaborative Professionals.

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

By Noel da Silva

Happy Days. Just like Fonzie, Richie and the rest of the Cunningham family on the 70’s sitcom Happy Days, it is great to go to work with a smile on your face, accomplish what your client wants and get paid to do it. This happened recently in a file in which an engaged couple wanted a Cohabitation Agreement that would become a Marriage Contract when they marry. Lawyers are often leery about doing this type of domestic contract as so many have been set aside by the courts. They are problematic because they can also be the source of a Law Society complaint.

After the initial approach from the client we decided to use the Collaborative Law method to negotiate the terms of the agreement. I only open a collaborative file if there is a properly trained lawyer representing the other party. Here I was fortunate to have such a person who was a very cordial, smart, detail oriented lawyer who is a member of Collaborative Practice Toronto.

During the first meeting with the client the financial disclosure aspect of the negotiations were discussed among many other subjects and issues. By the time our first collaborative meeting took place I was able to present a draft Financial Statement of the client to the other side along with a disclosure brief of the client’s assets, liabilities, income and tax returns.

Prior to the meeting a telephone call took place to discuss the agenda and what we wanted to accomplish for our clients. The open, respectful discussion was very helpful to make the first meeting efficient and to the point. The clients appreciated that. We were not wasting their money. The other lawyer also arrived at the first meeting with her client’s Financial Statement and disclosure documents.

Even though lawyers in the collaborative law/practice process maintain their roles as advocates, the clients were encouraged to speak and express their goals and everything they wanted to achieve with the agreement. We discussed their instructions, assets structure and how future acquired assets were to be dealt with. It is vital to have full participation from the clients. After all, it is their life and their agreement.

We set the date for the next meeting, assigned homework to the lawyers and parties. Then a debriefing session of a few minutes was held with each client and then with the lawyers only. The purpose was to see what we could do better next time, iron out any misconceptions and discuss any other concerns.

At the next meeting in Toronto, which was less than an hour in length, all remaining issues were ironed out. The sample property division calculation was explained and amended for clarification. The other lawyer generously took on the drafting task. I have revised that draft after a review. Once each client reviews it and signs, the deal will be done.

If you saw and heard a person in the car next to you, whistling on his way to and from work, it was me. It is terrific to practice law this way. The simple secrets for a takeaway were signing a participation agreement not to go to court, full disclosure, open, respectful dialogue and good faith negotiations. It is so refreshing!

Noel is a Brampton Family Lawyer and Mediator trained in the Collaborative Process. He is a member of Peel/Halton Collaborative Practice, Collaborative Practice Toronto, Ontario Collaborative Practice Federation and the International Association of Collaborative Professionals.

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

Selling the Family Home after Separation

By Hannah Kazman

Spouses frequently have differing opinions on what to do with the family home after separation. In particular, one spouse will often want to sell the family home while the other spouse wants to retain it. In the event spouses cannot agree and one spouse wants to put the house up for sale, does that spouse have the ability to force the opposing spouse to sell? The short answer is yes.

The Partition Act

In Ontario, section 3(1) of the Partition Act, RSO 1990, c. P.4, allows for any individual with an interest in property to apply to the court for an order forcing the sale of the property and section 2 of the Partition Act grants the court the power to compel other owners to proceed with the sale. This includes property owned by spouses, such as the family home.

Defining Interests in the Family Home

As the Partition Act only allows for spouses with an interest in the property to apply for partition and sale, the first step is to determine whether the spouse bringing the application has an interest in the family home.

If the spouse is registered on title, either by themselves, or with their spouse as a joint tenant or tenant in common, they have an interest in the home and can apply for the sale under the Partition Act.

If the spouse is not registered on title, the spouse may still be able to establish an interest in the family home if they can show they should be a beneficial owner of the property due to constructive or resulting trust. However, a trial on the issue of the constructive or resulting trust would likely need to be held before the house could be ordered for sale.

If a spouse cannot establish an interest in the family home, they will be unable to bring a court application forcing the sale. However, this does not mean that a non-owning spouse has no right to any equity of the property. It just means they cannot apply to force the sale of the home.

When Will the Court Force the Sale?

If a spouse with an established interest applies for an order under the Partition Act requiring the other spouse to sell the family home, the court is required to compel such a sale unless the opposing spouse can show a reason why the order should not be made (Afolabi v. Fala, 2014 ONSC 1713). The opposing party must provide evidence of malicious, vexatious or oppressive conduct on behalf of the spouse who is seeking the sale. If the spouse opposing the sale can establish such conduct, the court has narrow discretion to refuse to order the sale of the family home (Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.).

In the category of oppressive conduct, the court will consider whether the sale of the home would cause hardship to the opposing party or the parties’ children. For example, hardship may be found if the opposing party does not have the ability to find somewhere else to live or the children will be deprived of a place to live (Kaing v. Shaw, 2017 ONSC 3050).

When determining whether there is any malicious, vexatious or oppressive conduct, the court will look to the reasonableness of the parties’ positions and the spouses’ circumstances (Akman v. Burshtein, [2009] O.J. No. 1499 and Afolabi v. Fala)

Purchasing the Other Spouse’s Interest

You may be thinking, what if the spouse opposed to selling wants to purchase the other spouse’s interest– can the court order the spouse to accept the opposing spouse’s offer instead of opening it up to outside buyers?

The court cannot force one spouse to sell their interest in the family home to the other spouse. Spouses do not have a special right to purchase the other spouse’s interest in the property and each spouse is entitled to obtain the highest price possible for their interest in the home (Martin v. Martin, [1992] W.D.F.L. 589, and Buttar v. Buttar, 2013 ONCA 517). The spouse who wishes to retain the property is welcome to bid for the purchase of the family home alongside outside buyers, but if a higher offer is provided by a third party the spouse looking to sell is entitled to accept it.

This is only a quick summary on forcing the sale of the family home. Navigating issues to do with the family home after separation is never easy. If you or anyone you know has questions about your rights, please contact a member of our family law group for advice.

Hannah Kazman is an Associate at Simmons da Silva LLP. She practices exclusively in the area of family law, including contested court proceedings and collaborative law. She can be contacted at (905) 861-2811 or at hannah@sdslawfirm.com

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

By Hannah Kazman

Spouses frequently have differing opinions on what to do with the family home after separation. In particular, one spouse will often want to sell the family home while the other spouse wants to retain it. In the event spouses cannot agree and one spouse wants to put the house up for sale, does that spouse have the ability to force the opposing spouse to sell? The short answer is yes.

The Partition Act

In Ontario, section 3(1) of the Partition Act, RSO 1990, c. P.4, allows for any individual with an interest in property to apply to the court for an order forcing the sale of the property and section 2 of the Partition Act grants the court the power to compel other owners to proceed with the sale. This includes property owned by spouses, such as the family home.

Defining Interests in the Family Home

As the Partition Act only allows for spouses with an interest in the property to apply for partition and sale, the first step is to determine whether the spouse bringing the application has an interest in the family home.

If the spouse is registered on title, either by themselves, or with their spouse as a joint tenant or tenant in common, they have an interest in the home and can apply for the sale under the Partition Act.

If the spouse is not registered on title, the spouse may still be able to establish an interest in the family home if they can show they should be a beneficial owner of the property due to constructive or resulting trust. However, a trial on the issue of the constructive or resulting trust would likely need to be held before the house could be ordered for sale.

If a spouse cannot establish an interest in the family home, they will be unable to bring a court application forcing the sale. However, this does not mean that a non-owning spouse has no right to any equity of the property. It just means they cannot apply to force the sale of the home.

When Will the Court Force the Sale?

If a spouse with an established interest applies for an order under the Partition Act requiring the other spouse to sell the family home, the court is required to compel such a sale unless the opposing spouse can show a reason why the order should not be made (Afolabi v. Fala, 2014 ONSC 1713). The opposing party must provide evidence of malicious, vexatious or oppressive conduct on behalf of the spouse who is seeking the sale. If the spouse opposing the sale can establish such conduct, the court has narrow discretion to refuse to order the sale of the family home (Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.).

In the category of oppressive conduct, the court will consider whether the sale of the home would cause hardship to the opposing party or the parties’ children. For example, hardship may be found if the opposing party does not have the ability to find somewhere else to live or the children will be deprived of a place to live (Kaing v. Shaw, 2017 ONSC 3050).

When determining whether there is any malicious, vexatious or oppressive conduct, the court will look to the reasonableness of the parties’ positions and the spouses’ circumstances (Akman v. Burshtein, [2009] O.J. No. 1499 and Afolabi v. Fala)

Purchasing the Other Spouse’s Interest

You may be thinking, what if the spouse opposed to selling wants to purchase the other spouse’s interest– can the court order the spouse to accept the opposing spouse’s offer instead of opening it up to outside buyers?

The court cannot force one spouse to sell their interest in the family home to the other spouse. Spouses do not have a special right to purchase the other spouse’s interest in the property and each spouse is entitled to obtain the highest price possible for their interest in the home (Martin v. Martin, [1992] W.D.F.L. 589, and Buttar v. Buttar, 2013 ONCA 517). The spouse who wishes to retain the property is welcome to bid for the purchase of the family home alongside outside buyers, but if a higher offer is provided by a third party the spouse looking to sell is entitled to accept it.

This is only a quick summary on forcing the sale of the family home. Navigating issues to do with the family home after separation is never easy. If you or anyone you know has questions about your rights, please contact a member of our family law group for advice.

Hannah Kazman is an Associate at Simmons da Silva LLP. She practices exclusively in the area of family law, including contested court proceedings and collaborative law. She can be contacted at (905) 861-2811 or at hannah@sdslawfirm.com

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

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