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Family Law – Jennifer Black

Under section 24 of the Family Law Act, the court has the power to grant a married spouse exclusive possession of a matrimonial home regardless of which spouse has actual ownership of the home. This power is only available to a court where the parties are married. An unmarried spouse has no common law or statutory right to occupy his or her spouse’s property when the relationship ends.

Section 24 (3) of the Family Law Act, sets out the criteria that the court shall consider in deciding whether to make an order for exclusive possession:

a) the best interests of the children affected;
b)any existing orders under Part I (Family Property) and any existing support orders;
c) the financial position of the spouses;
d) any written agreement between the parties;
e) the availability of other suitable and affordable accommodation; and
f) any violence committed by a spouse against the other spouse or children

In determining the best interests of a child, section 24(4) of the Family Law Act, directs the court to consider:

a) the possible disruptive effects on the child of a move to other accommodation; and
b) the child’s view and preferences, if they can reasonably be ascertained.

A recent Ontario Superior Court decision of Justice Horkins, Leckman v. Ortaaslan [2013] O.J. No. 2606, examined the Family Law Act criteria in determining a Wife’s motion for interim exclusive possession of the matrimonial home. The Husband disputed the motion, seeking instead an order that the parties and the children remain together in the matrimonial home pending a final resolution of the court application.

In this case, the parties had been married in 1996 and were separated in 2012. They had two children, 16 year old Anna and 12 year old Garen. Both spouses were well educated and high income earners. The matrimonial home, worth an estimated 1.5 million, was in the Wife’s name alone and had no mortgage.

In this case Justice Horkins, analysed the applicable criteria set out in the Family Law Act. Justice Horkins acknowledged that both parties had sound financial positions and therefore rejected the Husband`s claim that he did not have the resources to afford alternate accommodations.

In assessing the issue of whether violence had been committed by a spouse, Justice Horkins confirmed that the violence referred to in s.24(3)(f) is not restricted to physical violence. Citing the court in Hill v. Hill [1987] O.J. No. 2297, Justice Horkins stated that, “violence includes a “psychological assault upon the sensibilities of (another) to a degree which renders continued sharing of the matrimonial dwelling impractical.” Where the conduct is calculated to produce and does produce an anxiety state which puts a person in fear of the other`s behaviour and impinges on that person`s mental and physical health, violence has been done to his or her emotion equilibrium as if he or she had been struck by a physical blow.

In the present case, Justice Horkins found that the situation in the matrimonial home was tense and that it was a difficult time for all and in particular for the children. The Wife described a home situation where the children felt like prisoners in their own home. She advised the court that when the Husband was home, he would give the children the silent treatment. This evidence was supported by a report from the oldest daughter’s psychotherapist which revealed that Anna constantly felt like she was “walking on egg shells” when her father was in the house. The Husband’s actions caused Anna stress, anxiety and depression.

Justice Horkin’s concluded that the Husband had verbally and emotionally abused both the Wife and Anna and that the Husband`s behaviour amounted to a psychological assault. Justice Horkins was not convinced that the children`s relationship would suffer if their father were to move out of the home.

Additionally, the court acknowledged that the children had lived in the matrimonial home for many years and that it was close to their school.

Noting the risks associated with the current living situation, Justice Horkins found that a decision regarding exclusive possession could not be adjourned or wait until trial as the situation was too dire. While the court generally prefers to make a final decision based on viva voce evidence that has been tested through cross-examination, in this case Justice Horkins found that it was in the best interest of the children to grant the Wife an interim order for exclusive possession of the home.

This case makes clear that although an order for interim exclusive possession of a matrimonial home should not be made lightly as it will have the effect of forcing one spouse out of the home, where evidence can be presented that there is much conflict in the home, a spouse with custody may receive an order for exclusive possession of the matrimonial home.

Article written by Jennifer Black, B.A. (Hons), LL.B. joined SorbaraLaw in July 2006. She practices in the area of family law in SorbaraLaw’s Waterloo and Guelph offices.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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Corporate Commercial – Slonee Malhotra

We are all aware of the existence of SPAM and the need to curtail these messages. Canada’s Anti-Spam Law, (“CASL”) will be in force beginning on July 1, 2014. CASL will be one of the strictest anti-spam regimes in the world. However CASL will impact both illegitimate and legitimate commercial electronic messages. Businesses must therefore appreciate the impact of CASL on the ability to communicate with customers and clients via electronic messaging.

SPAM refers to bulk messages of an unsolicited nature which often promote products or services through electronic mail, text messages, or video messages. SPAM can be used for ill purposes by those aimed at misappropriating personal data, banking information, or credit card numbers, luring individuals into scams including identity theft schemes, or defrauding consumers via counterfeit business websites.

SPAM messages are a nuisance, a drag on online commerce, and a menace for consumers. These messages have become a vehicle for a wide range of threats related to online commerce which affect both individuals and businesses.
CASL will affect individuals, businesses, and organizations by imposing regulations aimed at limiting and controlling the messages that are distributed. It is purposed to address three broad areas:

(1) commercial electronic messages (CEMs);
(2) alteration of transmission data; and
(3) the production or installation of computer programs.

The central feature and unifying purpose of CASL is to create an opt-in, consent-based regime to the receipt of these types of messages. Essentially, if a Canadian wishes to send an electronic message to a recipient that encourages the recipient to buy, sell, or lease a product or offers to provide certain opportunities, that recipient must first provide the sender with consent.

Most businesses will be largely impacted by the provisions and regulations restricting CEMs. Generally speaking, CASL requires that consent to receive CEMs must be “express consent”. In other words, the recipient of the message must have expressly agreed to receive such a message.

Under CASL, “express consent” can be oral or written. A person who seeks express consent from a recipient must meet certain prescribed criteria. Before a sender gets consent, he must, in a clear and simple manner:
identify himself by setting out prescribed information and providing contact information which must remain valid for 60 days;

outline the purpose(s) for which the consent is being sought; and
provide a free and electronic mechanism to permit recipients to indicate a desire to stop receiving the messages.

There are a few exceptions to this requirement and there are a number of situations where consent need only be implied. Express consent is not required for personal relationships, existing business relationships that involve communications via electronic messages, or for non-business relationships (i.e. messages sent by charities).

Importantly, if a business is sold, the new owner can continue sending CEMs to existing customers who have previously given express consent.

Moreover, implied consent from the receiver will be sufficient to meet the requirements of CASL where:
there is an existing business or non-business relationship between the sender and receiver;
the receiver has published or disclosed (to the sender) the address to which the message is sent without publishing or indicating that the receiver does not wish to receive unsolicited e-mails; or the message is sent according to the Regulations.

With more and more businesses sending out electronic messages to customers and potential customers, for marketing and other purposes, the impact of CASL on these legitimate business activities must be monitored. Businesses need to ensure that CEMs are delivered in accordance with the new regulations. Failing to do so could expose the company to far reaching and significant penalties under CASL. Individuals and businesses can be fined per violation, face civil and/or criminal charges, and be subject to private actions. Where compensatory damages are not awarded, recent case law has indicated that punitive damages may be warranted.

All businesses should take steps to do the following now:

Review organizational practices to determine what existing CEMs do not fall under one of the exceptions
Consider whether consent may be implied for the messages that are sent out

If consent cannot be implied, develop a system to obtain express consent. Make sure to follow the requirements under both the Act and Regulations when sending out requests for express consent

Ensure the existence of a system to reliably record the express consents gathered
Develop another system to track messages that fit under implied consent and make certain that each consent remains valid

Implement an “unsubscribe” policy and ensure requests to unsubscribe are complied with according to the time periods outlined under the Act

Will your business be prepared once the Act comes into force? To learn more about how the new Act will impact your workplace, please contact our office to schedule a meeting with a member of our Corporate-Commercial Group.

Article written by
Slonee Malhotra

 

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Estate Administration – Lisa Toner

Common issues that arise in families upon the death of a parent (or parents) are questions as to the parents’ choice of Executor, the distribution of personal items with sentimental value, the treatment of the family cottage or vacation property, and any unequal division of the Estate among beneficiaries, whether actual or perceived.

Clear, effective and open communication as to one’s Estate plan can go a long way to reducing conflict and resentment in a family after death. One way of achieving this is through the family meeting. The family meeting is an opportunity to communicate to your family the reasons for the decisions you have made in these and other areas.

Experts suggest that a family meeting should have a formal agenda so that the participants realize that it is not a social function. Parents who plan to hold a family meeting with their adult children should consider and communicate their goals for the meeting ahead of time. They will also want to consider whether to include their children’s spouses in the meeting. If spouses are not invited, explain why. During the meeting, it is important for parents not to simply “talk at” their children, but to invite and actively listen to feedback. (Whether that feedback ultimately results in changes to the Estate plan, is of course, up to you).

Many people consider the appointment of Executor to be an honour, and are hurt when they learn they were not chosen. Explain to your children the reasons for choosing one (or more) of your children over the other or others. It could be something as simple as geography: while certainly not impossible, there is no question that having an out-of-province Executor is more difficult. Perhaps one of your children is single while the other has a full-time job and three children under the age of five. Therefore, the single child is simply more available to devote the time required. Having several Executors can be unwieldy which is why you only selected one or two. Having this discussion can reassure your children that your choice does not mean you favour one child over the other, or that you believe one child to be less capable.

Resentment can also arise when the named Executor proposes to take compensation for administering the Estate. If you expect your Executor to take compensation (and I believe you should), explain why. Many children do not understand the role and responsibilities and the time commitment that is required of an Executor. Executors also risk personal liability for any mistakes that are made. These are all good reasons for the Executor to be fairly compensated for the work performed.

If you are leaving a particular item that may have sentimental value to one child, discuss that. You may be surprised to find that child is not particularly interested in it and is happy for it to go to another child who has always desired it. If, on the other hand, you have simply given the Executor full discretion to distribute your personal and household items, explain why.

As indicated in a prior article in LegalEase, the family cottage or vacation property is rife with opportunity for conflict. A thorough discussion about the different options for dealing with the property is recommended. Is it your intention that one or more of the children receive the cottage, and that you will equalize this gift with other assets going to the other child(ren)? Why? One child may feel the cottage should go to her as she uses it the most and has put time, effort and money into its upkeep. The other children may feel that is unfair as they would use the cottage more if they didn’t live so far away; and they would be happy to help with the maintenance and financial upkeep of the property but are unable to do so for economic reasons. Or perhaps you have decided the cottage should be sold (with or without the children having right of first refusal). Either way, chances are there will be capital gains tax payable on the cottage. Is that to be paid by the child or children who receive the cottage or by the Estate? It may even be preferable to transfer the property before death. These are all points for discussion.

There is really no limit to the items that can be reviewed at the family meeting. It may even be necessary or desirable to have a further meeting or meetings. It is advisable to have notes taken or minutes kept. Of course, it is always recommended to ensure that the Estate plan, once conceived, is properly documented through a well-drafted Will, or perhaps even the use of Trusts.

For more information about Estate planning, please contact Lisa Toner.

Article written by
Lisa Toner
, B. Soc. Sci., LL.B., has been with SorbaraLaw since September 2007, practicing in the areas of wills, estate planning and estate administration.

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Municipal, Land Use and Development – Michael Letourneau

The Ontario Planning Act provides municipal governments with a great deal of control over how their communities develop. It provides numerous mechanisms for municipalities to designate what can be done with the land within their borders. The general purpose of these mechanisms is to foster stable, healthy communities. They include the powers to establish zoning by-laws, collect development charges, and create official plans to guide community growth. One of the Act’s most powerful tools, however, is the power to decide how landowners can subdivide their land.

At common law, a landowner can subdivide a single piece of land by selling off portions of it to different owners. The Act, however, prohibits doing so without municipal approval (or provincial approval in remote communities without municipal governments). The most visible example of this is the process for creating new residential subdivisions, where prospective developers must submit detailed plans not only for the housing they intend to build and sell, but also for the services that they must build or pay for to serve those properties such as roads, drainage, utilities, parks, etc. The municipality must ensure that the plans meet their standards and conform to their official plan before they will be approved under the Act.

Another less visible, but still important, growth control mechanism under the Act is “consent to severance”. Through the granting of consent to sever, a municipality may authorize a person to subdivide land on a smaller scale, and without the need for a formal subdivision plan. These severance consents are used for a wide variety of land use and development purposes, including small scale property development.

In order to further control development allowed by severance consent, the Act empowers municipalities to attach conditions to consent approvals. The range of potential conditions is very broad, and covers anything that the approval authority feels is required for proper development. In order to provide stability to the severance consent process, the Act also imposes timelines on the processes for approving consent applications, satisfaction of conditions, and the validity of certain documentation. These timelines are highly technical in nature, and both municipalities and developers need to pay careful attention to exactly what they regulate.

In general, an applicant has one year to meet any conditions attached to the decision granting their severance consent; if they do not do so, their original application is deemed to be refused. The Act also requires that the municipality be satisfied that those conditions are met, but it does not connect that requirement to the “deemed refusal”. Once the municipality is satisfied that the conditions are met, it can issue a certificate saying that consent was granted, and that the consent is valid for at most two years from the date of issue.

While this system appears to be fairly straightforward, the technical language in the Act and the case law interpreting it has proved otherwise.

Unless a municipality imposes specific conditions in each consent decision describing when they are to be notified that the condition has been met, there is case law that establishes that a municipality cannot require that an applicant do so within the one year timeframe.

Many municipal consent authorities operate on the basis that if an applicant fails to inform them within one year that their conditions were satisfied, no consent exists. The Act, however, places such consent decisions
“in limbo” and a municipality who then refuses to grant final consent in those circumstances could be compelled to do so by a court. The court could also require the municipality to pay the legal costs of the applicant in obtaining the court order required.

All of these consequences can be avoided by municipalities simply taking a few simple steps. A municipality can attach conditions to each consent decision they issue that require the applicant to provide evidence that the other conditions involved have been satisfied within a year. Further, municipalities should be proactive in issuing consent certificates as soon as the conditions attached to a consent decision have been satisfied – doing so will immediately start the two-year validity period.

While all of this sounds like a potential windfall for land developers, developers need to consider the value of disputing the timeframe for making a consent valid. While a developer may be able to successfully obtain an order from the court extending the life of a severance consent despite the stance by the municipality that it has lapsed, these approaches can be both costly to pursue and may strain relations with the issuing municipality. Instead, developers dealing with land severance and consent issues ought to work towards being proactive in satisfying consent conditions. For example, they should appoint a single key person to manage the process of meeting the required conditions. That person should engage suppliers, consultants, and legal counsel early in the process, establish a timeline for satisfying conditions, and check in on the process regularly. Proper management will cost a developer relatively little compared to the costs required to salvage a lapsed consent decision that is necessary to accomplish a larger project.

Article written by
Michael Letourneau
, is a lawyer in the Municipal, Land Use & Development Group whose practice includes real estate law for land developers.

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Wills, Estates, Trusts, and Elder Law – Lisa Toner

Often, minor children are designated as beneficiaries of the proceeds of life insurance policies, or of investment accounts such as RRSPs and RRIFs.  Minor children, however, are considered parties under a disability and as such are not entitled to receive funds directly.  Therefore, the funds must be received by a Trustee on behalf of the child, and kept invested for his or her benefit until the age of majority (age eighteen in Ontario).

Unfortunately, in many cases, beneficiary designations are made without a great deal of consideration and without any professional advice.  Often, Trustees for minor beneficiaries are not named.  This often occurs when group life insurance and/or group RRSPs are offered by an employer, and a new employee is required to sign a number of forms at once for his or her employer.  Often these forms are standardized, and some do not include space for naming a Trustee.  If the form does contain information regarding naming a Trustee, it is typically in fine print and easily missed.  Often, the forms do not include powers for the Trustee, but if they do, they are restricted to a short, standard paragraph, which cannot be amended to reflect the employee’s specific circumstances or wishes.

Where no powers for the Trustee are specified, then a “bare trust” is created, meaning the funds must be held until the minor is eighteen, and in the meantime, there is no ability to access the funds for the child’s needs (for example, for sports, camps, orthodontics, music lessons, counseling, education, etc.).  In addition, these standard Trustee clauses never permit the holding of funds beyond age eighteen.

A child’s parent, while automatically the guardian of the child’s person, is not automatically the guardian of the child’s property.  Thus, if a Trustee has not been named, the child’s parent or guardian must apply to Court to be appointed to manage the child’s property.  The Office of the Children’s Lawyer (OCL) must be served with the Application, and responds to it on behalf of the child.  It is by no means automatic that the Application will succeed.  In many cases, the OCL will not consent to the guardianship Application, particularly if the person applying has little in the way of income and/or assets, has no experience managing money, or has a history of financial mismanagement.  As well, if a child’s parent or guardian applies, he or she may be considered to have a conflict of interest if he or she wishes to access the funds to help defray his or her own obligation to support the child.  In addition, the OCL is often of the view that payment of the legal fees for the Application ought not to be made from the minor’s funds, especially if the Application has little chance of success, and as such, the proposed guardian is required to pay personally for what may well be an unsuccessful Application.

If no Trustee is named, and no guardian appointed by the Court, the funds will be paid into Court to be managed by the Accountant of the Superior Court of Justice (ASCJ).  This is not necessarily an undesirable outcome, as over time, some Trustees and guardians of property find the role to be time-consuming and complex; but it is in all likelihood, not the outcome the deceased would have wanted.  Clearly, it is important to have the appropriate beneficiary designations in place in advance, in order to avoid this situation completely.  Added benefits of doing so are the ability to specify Trustees’ powers, and to have the funds held until later than age eighteen if desired.  Beneficiary designations do not have to be made on the insurance policy or on the investment account forms.  They can be done separately as a stand-alone document, or in a Will.  Advice should be obtained from a lawyer competent in Wills and estate planning, and from your financial advisor.

 

* * This article is intended only to inform and educate.  It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Author: Lisa Toner is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Lisa may be reached at (519) 741-8010 or <ltoner@sorbaralaw.com>

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Wills, Estates, Trusts, and Elder Law – Lisa Toner

Few assets generate the kind of emotion associated with the family vacation property.  Whether it is a cottage, farm, ski chalet, or a condominium in a warm locale, estate planning for this asset can be a significant challenge, and the lack of proper planning can result in costly tax consequences, as well as hurt feelings among family members.

In Canada, a portion of the increase in value of certain assets from the date of acquisition to the date of disposition is subject to capital gains tax.  The principal residence is one exception.  Since Canadians are entitled to only one “principal residence”, however, the capital gains tax will usually apply to the vacation property.  When the property is left to a spouse, the capital gains tax is deferred until the death of the second spouse.  When the vacation property has been in the family for many years, this tax, which is triggered by death or by the sale of the property to a third party, can be significant.

If there is not enough liquidity in the estate after death to pay the capital gains tax, the property may have to be sold.  This is usually contrary to the vacation property owner’s desire to have the property remain in the family to be enjoyed by future generations.  One way of addressing this issue is to purchase life insurance, assuming the vacation property owner is in good health and insurance can be obtained at a reasonable cost.  The estate will receive the proceeds of the life insurance tax-free and can use those funds to cover any capital gains tax liability.

A second option is to transfer the property to the next generation during the lifetime of the owner, either outright or as joint tenants, or to transfer the property into a family trust.  Although this will trigger a capital gain in the name of the owner at the time of the transfer, any future gains will accrue in the names of the next generation property owners.  This may make sense if the next generation is the primary users of the property in any event.

Where the property is transferred to more than one owner, whether before death or after, a co-ownership agreement is highly recommended.  The agreement should address such issues as the payment of ongoing repairs and maintenance, the payment of large capital expenditures such as a new roof or new windows, and what to do if an owner fails to fulfill his or her obligations in this regard.  The agreement should speak to what happens if one of the owners dies or becomes incapacitated, the division of responsibilities among owners for tasks such as paying bills and performing routine property maintenance, and could also include a schedule for use of the property (or a method for determining the schedule) in each year.

Aside from possible tax consequences, there can be other complicating factors in dealing with vacation properties.  What if only one child uses the property but does not have the financial ability to maintain it himself, and/or buy out his siblings?  Since there may be family members who are not interested or cannot afford to co-own the vacation property, a discussion as to the best method of dealing with this asset on death would be wise.  If the property is dealt with in the Will rather than transferred prior to death, granting each child, in a pre-determined order, a first right of refusal to purchase the property, as well as establishing a method for valuing the property, should be considered.

 

* * This article is intended only to inform and educate.  It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Author: Lisa Toner is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Lisa may be reached at (519) 741-8010 or <ltoner@sorbaralaw.com>

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Real Estate – Jacquelyn Johnson

If you are thinking of purchasing a home in the near future, the federal government has implemented some new mortgage rules that you need to be aware of. These new rules came into effect July 9, 2012, and will affect home buyers or owners who are mortgaging a property.

Most notably, for new government-backed insured mortgages, the amount of equity that can be borrowed against a property has been reduced, from 85% to 80% of the value of the property.

Another more contentious change is the reduction of the maximum amortization period from 30 years to 25 years. An amortization period is the amount of time it will take a homeowner to pay back the principal amount of a mortgage. This new shorter period means that the principal will be paid back quicker by the borrower, resulting in savings on the total amount of interest paid on that principal amount. However, it also means that the individual payments will be higher because there is less time to pay the principal back in full. This change has the effect of decreasing the total cost of a home a buyer is able to finance.

In making these changes, the government is attempting to help homeowners build up the equity in their homes quicker and to pay off their mortgages sooner, with the ultimate goal of strengthening Canada’s housing finance system. Finance Minister Jim Flaherty is seeking to cool down what many experts see as an “overheated” mortgage market, with many Canadians carrying debt loads that are beyond their comfort ranges. In fact, the average rate of debt to disposable income currently in Canada is an alarming 152%.

But in spite of the Minister’s aggressive push to inform the public of these new rules, a recent poll conducted for the Bank of Montreal showed the majority of Canadians are unaware of the changes.

Given that a home is the largest purchase most Canadians will make in their lifetimes, it is important to be aware of the rules and consequences relating to the mortgages used to finance such purchases.

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: Jacquelyn Johnson is a Lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Jacquelyn may be reached at (519) 741-8010 or <jjohnson@sorbaralaw.com>.   

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Corporate Commercial – Real Estate – David Sunday

When a landlord’s commercial premises are up for lease and the leasing broker locates an interested tenant, it is quite common for the prospective landlord and tenant to sign an agreement to lease as a first step towards putting in place a final lease agreement.

While an agreement to lease is no substitute for a final lease, it is important for prospective landlords and tenants to understand that signing an agreement to lease often has the same legal effect as signing a final lease itself.

Ontario’s Courts have said that, to be valid and enforceable, an agreement to lease must show the parties, give a description of the premises, set out the commencement and duration of the term, the rent, and all the material terms of the contract that are not just incidental to the relationship of landlord and tenant.  If these requirements are met, then an agreement to lease may be legally enforced, even though the parties did not ultimately agree on the final form of lease.

If the requirements for a binding agreement to lease are not met, then an agreement to lease will usually only be considered an “agreement to agree” or an “agreement to negotiate”.  In law, such “agreements to agree” are not generally treated as legally enforceable contracts.  However, even an agreement to agree may have enforceable provisions with respect to certain matters, such as forfeiture of deposit monies, and the entering into of an agreement to lease may trigger broker commission obligations.

Often agreements to lease contain a clause that says that the tenant will accept the landlord’s standard form of lease when presented subject only to minor modifications to make it consistent with the terms of the agreement to lease.  It is one thing to have such a clause included when the landlord’s standard form of lease is available to the tenant and reviewed before the tenant signs the agreement to lease, but potentially unfair to the prospective tenant if the landlord’s standard form of lease is not provided to the tenant until after the agreement to lease is signed.  Notwithstanding the potential unfairness, the Court’s will enforce such agreements to lease if the legal requirements set out above are met.

To avoid problems, parties to an agreement to lease should always ensure that:

  • the agreement to lease is clearly drafted and fully understood by both parties;
  • the agreement to lease clearly states whether it is intended to be a binding agreement to lease or non-binding in nature;
  • the agreement to lease clearly sets out the rights of the parties insofar as preparation and acceptance of the final lease agreement is concerned;
  • the agreement to lease clearly sets out what happens in the event the parties fail to agree upon a final form of lease (e.g., Are parties entitled to walk away? Are deposit monies forfeited?); and
  • any conditions included in the agreement to lease with respect to lawyer approval are clearly drafted, reflect realistic timelines, and confer sufficient rights as to allow for meaningful lawyer review and comment.

Before signing any agreement to lease, landlords and tenants should ensure that their interests are fully protected and should ask themselves if they could abide by the terms of the agreement if it were legally enforced even in the absence of a separate finalized lease agreement.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.

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Real Estate – David Sunday 

Ontario has commenced a formal review of the Condominium Act.  Although the review is still underway, the review panel has issued a first recommendation to require condominium managers to hold certain mandatory qualifications.

The Ministry of Consumer Services has already endorsed this early recommendation, due to its relatively broad support across most stakeholder groups, including from the Association of Condominium Managers of Ontario.

Property managers across Ontario and Waterloo Region will want to monitor this development and ensure that they are ready when mandatory qualifications become a reality.

The Stage Two Condominium Act Review report is expected to be available for public comment by the end of summer 2013. Expect it to provide further detailed recommendations with respect to the types of mandatory qualifications that are likely to be required for condominium managers at some time in the future.  You can watch for the report online at:

http://www.sse.gov.on.ca/mcs/en/Pages/condo_rev.aspx

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.

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Litigation – Steven Kenney

Winter has arrived and with it, snow and ice.  Slips and falls as a result of snow and ice are common and caution should be taken to avoid taking such a spill.  However, should you find yourself injured from a slip and fall, it is important to know what to do.

We recommend the following important steps:

  1. Record the location of the fall, particularly whether it occurred on private or public property. There are specific notices and very short time frames that must be followed if public or municipal property is involved.
  2. Record and keep the footwear worn at the time of the incident. Do not clean the shoes or boots, but store them in a safe place.
  3. Record the weather and other conditions. For example, was the walkway icy or snow covered, muddy, broken or in need of repair, or is there a hidden step?
  4. Record how the fall occurred. What were you doing? Where were you going? What happened?
  5. Record the names and addresses of witnesses to the fall.
  6. At the time of the fall, did you talk to anyone who had some sort of control over the property? (i.e. property owner, store manager, parking lot attendant)
  7. Record the names of any hospitals or treatment centres attended.
  8. Record the types of injuries and any treatment received.
  9. If possible, take photographs of the location, and date the photos.
  10. Contact a lawyer promptly to convey this information and determine your rights.

Likewise, even where care is taken to clear ice and snow from driveways, sidewalks and walkways, the winter season also comes with the risk that someone will slip and fall on your property. If someone has notified you that they have slipped and fallen on your property, these steps are important to follow:

  1. Take photographs of the location, and date them.
  2. Record the person’s name and address. Do the same for any witnesses.
  3. Summarize any information provided to you concerning how the fall occurred. If you were a witness to the incident, write a detailed statement describing what happened, and where and how it happened. Be sure to include any important details. Was the person drinking or drunk? Was the person walking, running or using a digital device (phone)? Was the person paying attention? What was the person’s footwear?
  4. Record the state of the walkway. Had you salted or placed sand prior to the incident? Had you cleared snow/debris?
  5. Record any injuries.
  6. Notify your insurance broker or property insurance company of a potential claim. It is difficult to know whether an individual will commence a claim for compensation. Injuries may appear to be minor at the time of the incident, but circumstances may change the status to serious or severe later. Some insurance companies appreciate the early warning and will send an adjuster to investigate immediately. Others may wait until you are given notice of a lawsuit.
  7. Contact a lawyer promptly to convey this information and determine your potential liability.

Often, notice of a lawsuit does not occur for many months or more. Thus, it is important to record details promptly, as your memory may fade with time. Most importantly, don’t panic if you receive notice of a lawsuit, but do contact your insurance company quickly to ensure that a response to the claim is prepared in the required time period.

Should you have any questions about your rights or liabilities with respect to slips and falls, please feel free to contact a member of our litigation group.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: Steven Kenney is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Steven may be reached at (519) 741-8010 or <skenney@sorbaralaw.com>.   

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