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Tag: spouse

What Happens if You Die Without a Will in Ontario?

Confirmation of Registration Report They say nothing is certain in life but death and taxes. We pay taxes on a daily basis but often try to avoid the thought of death at all costs. Unfortunately, the cost to your loved ones if you do not plan for your estate in the event of your death can be abundant; and it […]

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Realtors; learn how to save a deal when spouses are feuding and being uncooperative over the sale of a property!

This article applies to legally married couples and not those in common-law arrangements.  The long and the short of it is that IF both spouses are on title of the property [that means they are both registered owners in one capacity or another (commonly as Joint Tenants or even Tenants In Common)], then you will need them BOTH to sign the listing agreement, representation agreement, the offers in between, any other required Realtor documents/amendments, and the finally accepted Agreement of Purchase and Sale and its amendments.  So long as that is the case, the two FINAL documents you should ask their lawyer to produce while signing the listing agreement is, first an Un-revocable Direction to the lawyer (presuming he/she will be the one closing the deal) as to how the Proceeds of Sale are to be divided and that he/she is to be the closing lawyer.  This ensures that the two spouses cooperate and do not hold each-other hostage on the eve of closing threatening not to close unless one spouse gets what they want out of the deal.  It also ensures that the lawyer who holds this direction will be able to use it because he/she will be closing the deal.  Second, and at the same time ask the lawyer to also draft and provide a declaration that both spouses will be providing vacant possession on the day of closing before 4:00 pm.  This will help the scenario where one spouse is being

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ESTATES & EQUALIZATION: How the Courts can enforce your Family Law rights

Court OrdersThe court has extensive powers to enforce the equalization order, Family Law Act (FLA) section 9. It can order:Money to be paid;Security to be given;Payment to be deferred for, or made in instalments over a period of up to 10 years;Transfer of property in specie; orPartition and sale of property. If deferred or instalment payments are ordered, subsequent variation orders are permitted provided the court is satisfied that there has been a material change in the circumstances of the paying spouse. However, the amount of the equalization payment previously determined cannot be varied, FLA, s. 9(3).

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ESTATES & EQUALIZATION: How can a spouse elect his/her family law rights over a Will

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.

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ESTATES & NFP: How your estate will be impacted by your spouse’s statutory rights

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

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TRUSTS & ESTATES: Transfering assets to your spouse or children

Trusts and AttributionThe attribution rules for trusts, transferors, and so on are given in Subsections 74.1(1) and 74.2(2) of the Canadian Income Tax Act (“ITA”).  These rules are meant to attribute back to the transferor any income or capital gains generated from property transferred at less than fair market value consideration or for no consideration to a spouse of the transferor, as well as to attribute income, but not capital gains, on similar transfers to a non-arms length minor such as a child. Such rules apply in similar fashion to loans at less than fair market value interest. These rules are not applicable to the transferor to attribute any income, loss, taxable capital gains or allowable capital losses that relate to a period following the death of the transferor. Consequently, these rules are not applicable to a testamentary situation.

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