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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 understandalso known asnon 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.

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.

Bruce Duggan is a certified specialist in corporate and commercial law and a partner at Simmons, da Silva LLP, a Brampton law firm and has been assisting BMO with commercial lending transactions for more than 20 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 understandalso known asnon 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.

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.

Bruce Duggan is a certified specialist in corporate and commercial law and a partner at Simmons, da Silva LLP, a Brampton law firm and has been assisting BMO with commercial lending transactions for more than 20 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

Dealing with digital assets

By Howard Simmons

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here, says Howard Simmons while discussing the need to plan for digital assets

David Reynolds is a proud grandfather and a keen photographer. He has taken many pictures of all his grandchildren and the rest of his family for many years. He keeps all his pictures (now several thousand) on his iCloud account. Unfortunately, David Reynolds now has Alzheimer’s. Where are all his pictures? They are there in cyberspace but no one else knows his passcode to access the pictures.

Barbara Lindsay pays all her bills online, she also gets all her financial information online, such as credit card statements, bank statements investments realty tax, utility and many other bills. The bank Barbara has no physical branches and conducts its business only online. Barbara also has a lot of Aeroplan and Air Miles points. Barbara also has an online brokerage account.

Barbara has now died. How is her family going to access all this information if they do not have her passcode?

These are only a few examples of digital assets. They may not have value in the outside world, but they have great value to the people involved. What if a novelist has the latest, almost finished novel on the computer but no one has the passcode? What about the bookkeeping records for a small business?

How many passwords and accounts do you have? Are there accounts you don’t care about but others you want looked after.

Planning for your mental incapacity or death can now involve more than a will and power of attorney. However, this digital planning is not always clear. Should you leave your passcodes with someone you trust? Should you leave them with your will that is with your lawyer?

There is also the separate problem of someone not wanting anyone to access his or her private e-mails. Is there an expectation of privacy for these e-mails? There are also social media sites such as Facebook. As people die or become mentally incapable, Facebook and other sites become dormant.

At some time, there will be more dead people on Facebook than alive people. Do you want your Facebook page to live on as a memorial or to be terminated?

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here.

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

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here, says Howard Simmons while discussing the need to plan for digital assets

David Reynolds is a proud grandfather and a keen photographer. He has taken many pictures of all his grandchildren and the rest of his family for many years. He keeps all his pictures (now several thousand) on his iCloud account. Unfortunately, David Reynolds now has Alzheimer’s. Where are all his pictures? They are there in cyberspace but no one else knows his passcode to access the pictures.

Barbara Lindsay pays all her bills online, she also gets all her financial information online, such as credit card statements, bank statements investments realty tax, utility and many other bills. The bank Barbara has no physical branches and conducts its business only online. Barbara also has a lot of Aeroplan and Air Miles points. Barbara also has an online brokerage account.

Barbara has now died. How is her family going to access all this information if they do not have her passcode?

These are only a few examples of digital assets. They may not have value in the outside world, but they have great value to the people involved. What if a novelist has the latest, almost finished novel on the computer but no one has the passcode? What about the bookkeeping records for a small business?

How many passwords and accounts do you have? Are there accounts you don’t care about but others you want looked after.

Planning for your mental incapacity or death can now involve more than a will and power of attorney. However, this digital planning is not always clear. Should you leave your passcodes with someone you trust? Should you leave them with your will that is with your lawyer?

There is also the separate problem of someone not wanting anyone to access his or her private e-mails. Is there an expectation of privacy for these e-mails? There are also social media sites such as Facebook. As people die or become mentally incapable, Facebook and other sites become dormant.

At some time, there will be more dead people on Facebook than alive people. Do you want your Facebook page to live on as a memorial or to be terminated?

The use of the computer and sites is rapidly changing. We need to be sure our families do not suffer after we are not here.

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

A Princely Estate

By Howard Simmons

Prince died at age 58. He had a net worth when he died of $300 million (US).  Estates of this magnitude usually have sophisticated tax, will, trust and other planning. Prince had none. He even died without a will. Prince had no wife, no children (yet known) and both his parents were dead. He had one sister and five half siblings, so all six of them will share in the estate

Who will administer this large estate, plus all of Prince’s music library and existing future royalties?  The income flowing to Prince’s estate and still continuing will be huge. Expertise in the music business and being trustworthy are essential.

The court in Minnesota will end up making this decision, not Prince.  The amount of tax on his estate will be substantial, as there was no planning. You would think the very rich would plan their affairs well. Sometimes you will be wrong.

There are many other wealthy and famous who did not plan or make any or a proper will. Warren Burger was a Chief Justice of the United States Supreme Court. You would think he would do everything properly. You would be wrong. He wrote his own will in 176 words. When he died, his family paid more than $450,000 in taxes that could have been avoided with proper planning.

Sonny Bono, was a musician (along with Cher). He was a busy man. He was so busy, he never had done a will. He died unexpectedly in an accident while skiing. Although busy, he secretly fathered a child. On his death, this child claimed part of the estate.

We all plan better than people like Prince, Chief Justice Warren Burger and Sonny Bono.

Don’t we?

Howard S. Simmons is a partner at Simmons da Silva LLP.

The lawyers at Simmons da Silva are experienced in assisting clients in drafting Wills.  Should you require any assistance with such drafting, please contact Howard S. Simmons at: T: 905 8612826 or email: howard@sdslawfirm.com

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

By Howard Simmons

Prince died at age 58. He had a net worth when he died of $300 million (US).  Estates of this magnitude usually have sophisticated tax, will, trust and other planning. Prince had none. He even died without a will. Prince had no wife, no children (yet known) and both his parents were dead. He had one sister and five half siblings, so all six of them will share in the estate

Who will administer this large estate, plus all of Prince’s music library and existing future royalties?  The income flowing to Prince’s estate and still continuing will be huge. Expertise in the music business and being trustworthy are essential.

The court in Minnesota will end up making this decision, not Prince.  The amount of tax on his estate will be substantial, as there was no planning. You would think the very rich would plan their affairs well. Sometimes you will be wrong.

There are many other wealthy and famous who did not plan or make any or a proper will. Warren Burger was a Chief Justice of the United States Supreme Court. You would think he would do everything properly. You would be wrong. He wrote his own will in 176 words. When he died, his family paid more than $450,000 in taxes that could have been avoided with proper planning.

Sonny Bono, was a musician (along with Cher). He was a busy man. He was so busy, he never had done a will. He died unexpectedly in an accident while skiing. Although busy, he secretly fathered a child. On his death, this child claimed part of the estate.

We all plan better than people like Prince, Chief Justice Warren Burger and Sonny Bono.

Don’t we?

Howard S. Simmons is a partner at Simmons da Silva LLP.

The lawyers at Simmons da Silva are experienced in assisting clients in drafting Wills.  Should you require any assistance with such drafting, please contact Howard S. Simmons at: T: 905 8612826 or email: howard@sdslawfirm.com

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