Canadian and European pharmaceutical lobbyists have been trying to bring changes to patent law as it relates to brand-name drugs for quite some time.  The hope for these companies is that they will be able to add a few years to the lives of their drug patents.This move could potentially add hundreds of millions of dollars to Canadians’ annual medical costs. It also provides further incentive for pharmaceutical companies and investors to invest further capital into projects that study diseases in the hopes of finding a cure.The EU has reportedly proposed that the measures be included in a landmark free-trade agreement now being negotiated between the jurisdictions, with the fifth round starting last week in Ottawa.If the changes go ahead they would delay the entry of cheaper generic copies of medication onto the market.  Pharmaceutical companies that design and produce brand-name drugs say that the measures are needed to restore fairness to the patent system and to generate investment to support more drug research in Canada.

Restrictions on Distribution of EstateAfter the death of a spouse, no distributions can be made out of the estate during the six month period immediately following the deceased spouse’s death without:1) Written consent of the surviving spouse; or2) Authorization of the court, the Family Law Act (“FLA”), section 6(1).If the personal representative receives notice that an application, for extension, has been made under Part I of the FLA, no distributions can be made out of the estate without:1) Written consent of the applicant; or2) Authorization of the court, FLA, section 6(15).

The Purpose of Section 50 of the Planning ActSection 50 of the Planning Act aims to control the manner in which land can be divided and used. In view of this, transactions will fail if its provisions are not fully complied with.  Generally, the provincial government does not exercise direct control over development, and therefore the legislation is designed to allow development decisions to be made by municipalities and to be overseen by the Ontario Municipal Board. Presently, the emphasis has been on restoring local accountability and transparency to land-use planning. The Strong Communities (Planning Amendment) Act, 2004 strengthens planning at the municipal level and Bill 51, the Planning and Conservation Land Statute Law Amendment Act, 2006 limits the Ontario Municipal Board to acting as a true appeal body.It is necessary to keep in mind while reading the following material that reference to a “chain of title” refers only to land registered under the Registry Act. Having regard to the currently ongoing process of converting most land in Ontario from the Registry system to the Land Titles system, the outcome will eventually dispense with the relevance of, for example, the “start dates” referred to in s. 8 below, because chains of title have no meaning under the Land Titles Act.

Continuing the discussion of the effects of a Family Law election on various aspects of estate administration; its effect on intestacy is now reviewed.Effect on IntestacyIn an intestacy (where a spouse dies without a will), either partial or total, the election in favour of an equalization claim (FLA, subsection 6(9)) will result in the surviving spouse’s forfeiture of his or her entitlement under Part II of the Succession Law Reform Act (“SLRA”). In a partial intestacy, even when the will states that the benefits under the will are to be in addition to the surviving spouse’s equalization claim, that statement would not prevent the latter’s forfeiture of entitlement under Part II of the SLRA for the other part of the estate that is under intestacy.In intestacy, the SLRA has no control over a surviving spouse’s entitlement to property situated outside Ontario. Succession to immovable property as dictated by conflict of laws rules is under the law of the situs (position or site).  So, unless the laws of the jurisdiction in which immovable property is situate require that Ontario law be applied (i.e. the SLRA), the surviving spouse who elects in favour of an equalization claim can get the assets located outside Ontario. This is a glaringly unfair, and probably an unintended result, caused because the Net Family Property (“NFP”) of the deceased spouse is calculated on the basis of his or her worldwide assets.

Simply defined in the Blacks law dictionary, an easement is an interest in land owned by another person, consisting in the right to use or control the land or an area above or below it, for a specific limited purpose.  Often, easements are registered on title thereby granting or assigning rights to use the subject lands for a specific limited purpose.  A common easement registered on title grants access to utility companies and municipalities onto a subject property in order to service and maintain a specific utility or the lands, whether its cables for phones and internet or pipes for gas and water.  An easement could potentially hinder the enjoyment and use of a property and therefore can become a contentious issue during the course of a real estate transaction.The standard OREA agreement of purchase and sale (“Agreement”) contains a clause called “Title” and it states:

It cannot be stressed enough how important it is for the surviving spouse to establish his or her entitlement to insurance proceeds and to survivorship benefits under pension and similar plans arising on the death of the deceased spouse.With this in view, the surviving spouse, who makes his or her decision on the basis of a will in respect of which no certificate of appointment of estate trustee has been issued, should also be cautioned. In the end, if the will put forward is found to be invalid; the surviving spouse would find that the election should have been made the other way. A wise course of action would be to defer the filing of the election until after the certificate of appointment of estate trustee with a will has been issued. Should there be difficulty in locating a will or there be litigation over the validity of a will, it would be appropriate to apply for an extension of time for filing the election beyond the six-month period following the deceased spouse’s death, (under subsection 2(8) of the Family Law Act (“FLA”)).

The RCMP appears to be showing no mercy in enforcing B.C.’s tough new impaired-driving laws. An officer from Vernon, B.C. recently issued an immediate three-day roadside prohibition to a man, impounded his car for three days and issued a $200 fine for blowing over 0.05% blood-alcohol, and below 0.08%, around dinnertime on Monday.The man was the first driver to be charged under the new legislation in the Vernon/North Okanagan detachment area of B.C. The controversial legislation, which took effect on September 20, 2010, is similar to laws that are popping up all around the country.My problem with the legislation is the mixed messages that are being sent. On one hand, the legislature is saying that it is O.K. to have a little bit to drink before you drive. This, they assume, is required to support the restaurant industry. On the other hand, they are saying that a single drink could be enough to get you in trouble with the police.If the message is that a single drink can potentially make you a dan

The Equalization ClaimA right for the surviving spouse to make an equalization claim under the Family Law Act (“FLA”), subsection 70(1)(b), is possible only due to the death of a spouse on or after March 1, 1986.  It is said in subsection 5(2) of the FLA that when a spouse dies, if the NFP of the deceased spouse exceeds the NFP of the surviving spouse, the latter is entitled to one half the difference between them. The court could award an amount that is more or less than one-half that difference if in regards to six factors enumerated in subsection 5(6), it would be just and proper.Previously, jurisprudence from Ontario’s appellate court ruled that the courts could do no more than award 100% of the difference in the parties NFPs to the spouse with the lower NFP. But, in the 2007 decision in Von Czieslik v. Ayuso, a different panel of Ontario’s appellate justices held that a court has the authority to award an amount up to 100% of the value of the NFP of the spouse who has the higher NFP to the spouse with the lower NFP.

The Impact of the Family Law Act on Estate Administration The administration of estates became very complicated with the enactment of Ontario’s Family Law Act (“FLA”) in 1986. Before that, the lawyer was to advise an estate trustee that the only statutory claim to interfere with the testate or intestate distribution of the deceased’s assets was one brought by a “dependant” under Part V of the Succession Law Reform Act (SLRA), on the grounds that the deceased had not made “adequate provision” for the claimant (usually a dependant). With the FLA in operation, the estate trustee is now also to be prepared for a potential property claim by a surviving married spouse.Net Family Property (NFP)A solid grasp of the rules in Part I of the FLA is essential to understand the nature of the surviving spouse’s claim and how it affects the estate trustee’s responsibilities and authority. “Net Family Property” (“NFP”) is the key concept underlying those rules, which is defined in subsection 4(1) of the FLA. In a nutshell, the NFP of a spouse is intended to be a measure of his or her increase in net worth during the

Taxation of BeneficiariesUnder subsection 104(13) of the Canadian Income Tax Act (“ITA”), the income of a trust or estate that is paid or payable to a beneficiary is taxed in the hands of that beneficiary. In order to avoid double taxation, the trust or estate is allowed a deduction for an equivalent amount. This amount is considered to be payable to a beneficiary when the beneficiary is entitled in that year to enforce payment thereof, ITA, subsection 104(24). One reason for not paying is that the beneficiary has not attained a specific age and where the trust is not a discretionary trust. In addition, subsection 104(18) states that the income is to be considered payable to the minor, thereby allowing a deduction to the trust and an income inclusion to the minor.In view of this, a beneficiary will be required to pay tax on trust income that is not actually received so long as he or she has a legally enforceable right to the income. Of course, no tax should be imposed when he or she actually receives income that has already been notionally included in his or her income in a prior year, since it was payable to him or her. To this effect, subsection 104(13) rules that this income can be subsequently paid to the beneficiary tax free.