Legalese Dictionary

A Brief Note on Guardianship of Minor Children’s Property

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | No Comments Wednesday, March 10, 2010

In Ontario, a parent is automatically the guardian of person of his or her minor child. However, a parent is not automatically the guardian of property for that minor child. A parent can only receive and manage property on behalf of a child by law, court order, or other documents.

Minor children may be entitled to property or a large amount of money under various circumstances. For example, a child may be entitled to monetary compensation under an insurance policy.

How can a parent obtain authority to manage and hold property on behalf of his or her child?

The Children’s Law Reform Act* stipulates that if the value of the property is under $10,000, the parent or custodian may receive it on behalf of the child.

Alternatively, a parent may make an application before the court to be appointed as the guardian of the property of the child. By law the Office of the Children’s Lawyer must be notified of the proceeding, so that the minor’s interest may be adequately protected.

Once appointed, the guardian of property must keep careful records (called “accounts”) of all dealings respecting the property. The guardian also must comply with Trustee Act requirements for the investment of trust funds.

Finally, once the minor turns 18, the guardian will have to transfer of the child’s property to the child.

* R.S.O. 1990, c. C.12 (as am.)

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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Some Legal Aspects of a Wedding: What Your Wedding Planner Won’t Be Telling You

Posted in: "All, Family Law, Legalese Dictionary by Admin | No Comments Thursday, February 11, 2010

Planning a wedding? Here are certain legal aspects that your wedding planner won’t be telling you any time soon.

  • In Canada, marriage for civil purposes is the lawful union of two persons to the exclusion of all others. In other words, same-sex marriage is legal, although religious officials aren’t obligated to perform marriages that are not in accordance with their religious beliefs.*
  • Polygamy isn’t legal in Canada at the moment.^ However, under the Ontario Family Law Act,# a spouse in a polygamous marriage is recognized if the marriage was celebrated in a jurisdiction whose system of law recognizes it as valid.
  • Persons related by blood or adoption are not prohibited from marrying each other by reason only of their relationship, unless they are related lineally, or as brother or sister or half-brother or half-sister.** In other words, marriage between cousins is entirely legal in Canada.
  • It is a crime for foreign nationals to marry Canadian citizens or permanent residents only to gain entry into Canada.^^ In many cases, sponsors and foreign applicants arrange a “marriage of convenience”: a marriage or common-law relationship where the sole purpose is for the sponsored spouse to immigrate to Canada.
  • If you have been divorced in a foreign country and wish to re-marry in Ontario, you’ll need to get an opinion letter from a lawyer indicating whether the divorce is recognized in Canada before you can be isseud a marriage licence.##

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Legalese Dictionary: Franchising

Posted in: "All, Business Development, Copyright and Trademarks, Legalese Dictionary by Admin | No Comments Wednesday, January 27, 2010

What is a franchise?

While for most ordinary citizens the word “franchise” conjures up images of McDonalds or PizzaPizza, not many people can clearly define what a franchise is.

When used in the commercial sense, “franchise” refers to the sole right granted by the owner of a trademark or tradename to engage in business or to sell goods or services in a certain area. The owner of the rights is referred to as the “franchisor,” while the person purchasing the rights is called the “franchisee.”

Almost always, the right to use the trademark or traden ame addressed is bundled with access to “know-hows” or other proprietary information not commonly known to the public.

In Ontario, franchising is regulated by the Arthur Whishart Act (Franchise Disclosure), 2000.* The Act provides rules on a franchisor’s obligation to information disclosure and fair dealing. If the franchisor fails to comply with the legislation, the franchisee is entitled to remedies.

*S.O. 2000, c. 3

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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PSWLaw HST Bulletin: Small Businesses and the GST/HST

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Tuesday, January 19, 2010

Commencing July 1, 2010, in Ontario, the Goods and Services Tax (GST) will blend with the provincial sales tax and become the Harmonized Sales Tax (HST) in Ontario. The new tax is set at 13%.

At the moment, a GST registered business collects the GST from the customers and pays the GST to its suppliers. At the end of the reporting period (depending on the total sales, it may be monthly, quarterly, or annually), it calculates how much GST was paid out for the purposes of generating income then subtracts the amount that was collected from the customers. If the difference is a positive amount, the business owes the Canada Revenue Agency (CRA) money, if negative, it’s entitled to a refundable input tax credit (ITC).

The rules of HST collection turn out to be the same for the GST as the new tax is designed to streamline the process of tax collection. Businesses providing taxable supplies in Canada are required to register for the HST, unless you are a small supplier as defined by the law.

To qualify as a small supplier, you need to meet one of the following conditions:

  • If you are a sole proprietor, your total revenues from taxable supplies (before expenses) from all of your businesses are $30,000 or less in the last four consecutive calendar quarters and in any single calendar quarter.
  • If you are a partnership or a corporation, the total revenues from taxable supplies (before expenses) of the partnership or corporation are $30,000 or less in the last four consecutive calendar quarters and in any single calendar quarter.
  • If you are a public service body (charity, non-profit organization, municipality, university, public college, school authority, or hospital authority), the total revenues from taxable supplies from all of the activities of the organization are $50,000 or less in the last four consecutive calendar quarters and in any single calendar quarter. A gross revenue threshold of $250,000 also applies to charities and public institutions.

That being said, taxi and limousine operators are required to collect the GST/HST, even if they qualify as small suppliers.

PSWLaw is your lawyer for your small business.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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Family Law Dictionary: Custody of Children

Posted in: "All, Family Law, Legalese Dictionary by Admin | 1 Comment Saturday, January 9, 2010

In family law, custody refers to the legal relationship between a parent and his or her child, including the parent’s right to make decisions on behalf of the child and the parent’s duty to care for the child and look after the child’s best interests.

In Ontario, custody is governed by the Children’s Law Reform Act.* Under the Act, in the absence of a court order or a separation agreement, the father and the mother are equally entitled equally to custody of the javascript:;child.

If the parents separate, the parent living with the child will have the rights of the custodial parent, while the custodial rights of the parent not living with the child becomes suspended until a separation agreement or court order provides otherwise.

*R.S.O. 1990, c. C.12

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A Brief Note on Child Support and Extraordinary Expenses – What Counts?

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | 2 Comments Friday, December 4, 2009

As I mentioned in my blog yesterday (“A Brief Note on Child Support and Undue Hardship“), there are two kinds of child support payable in Ontario – the basic amount and the extraordinary amount. While the basic amount refers to the amount set out in the Child Support Guidelines,* what constitutes “extraordinary expenses” is subject to interpretation.

For the purposes of this blog, we will refer to the federal version of the Guidelines.

According to the regulation, the term “extraordinary expenses” means “expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table.”

In plain language, the term refers to the extra costs of raising the children that the recipient spouse can not seasonably afford on his or her own. The granting of extraordinary expenses means that the other spouse will have to help pay part of these costs.

Examples of extraordinary expenses may include the following:

  • child care expenses
  • medical and dental insurance premium attributed to the child
  • tuition or fees for educational programs to meet the child’s particular needs
  • expenses for post-secondary education
  • costs for extracurricular activities

In determining whether the extraordinary expenses are allowable, the court may also consider the following:

  • the amount of expense in relation to the income of the spouse requesting such expenses
  • the nature and number of the educational programs and extracurricular activities
  • any special needs and talents of the children
  • the overall cost of the program and activities

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A Brief Note on Child Support and Undue Hardship

Posted in: "All, "Brief Note" Series, Family Law, Legalese Dictionary by Admin | No Comments Thursday, December 3, 2009

In Ontario there are two kinds of child support payable – the basic amount and the extraordinary amount. (For more information, see my December 4 blog “A Brief Note on Child Support and Extraordinary Expenses.”)

The basic amount (also called “table amount”) of child support payable is determined solely by the income level of the support payor under the Child Support Guidelines.* In other words, the income level of the recipient is irrelevant for the purpose of determining the basic amount payable.

Exceptions to the basic amount are few. The most commonly seen exception is for “undue hardship.”

For the purposes of this blog, we will limit the discussion to the federal Child Support Guidelines, enacted under the Divorce Act.+

There are several circumstances that may support the claim of undue hardship: an unusually high level of debts incurred to support the receiving spouse and children prior to the separation or to earn a living; unusually high expenses in relation to exercising access; and a legal duty to support another person.^

However, to claim undue hardship, the court must consider differences of living standards between the households. Under the law, the claim for must be denied if the court determines that the household of the spouse claiming undue hardship would have a higher standard of living than the household of the other spouse.

In comparing standards of living, the court would follow the schedule under the regulation, which provides an elaborate calculation formula. The formula provided is complicated, to say the very least, especially if you attempt to do the calculation with pen and paper. Therefore, most family law practitioners use a specialized computer program.

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A Brief Note on the Limitation Period in Ontario

Posted in: "All, "Brief Note" Series, Legalese Dictionary by Admin | No Comments Thursday, December 3, 2009

“Limitation period” is a legal jargon meaning a statutory term after which a lawsuit (or prosecution) cannot be brought in court.

In Ontario the limitation period is governed by the Limitations Act, 2002. It’s interesting to note that in contrast to the law in other countries, such as the US, the Ontario Act is not applicable to offences under the Criminal Code^ because the Code falls under federal jurisdiction.

The basic limitation period in Ontario is two years from the day on which the claim was discovered.# For example, if you were involved in an automobile accident and suffered minor injuries, you would have to bring your claim before the court within two years, or your claim may be barred by the statute.

Nonetheless, the Act provides numerous exceptions under which the limitation period may differ from the basic two-year rule. Therefore, in the event that you wish to commence a proceeding, you should act promptly and consult with a lawyer to ensure that your claim is not barred by the statute.

*S.O. 2002, c. 24, Sch. B

^R.S.C. 1985, c. C-46

# Limitations Act, 2002, s. 4, 5

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Legalese Dictionary: E. & O.E.

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Tuesday, November 24, 2009

E.&O.E., or “Errors and Omissions Excepted,” is a bit of trade jargon commonly used in financial service industries. It means that the author cannot be held liable for errors and omissions (if any) shown on the statement.

For example, when you wish to discharge a mortgage, the mortgagee bank will fax you a statement showing clearly  how much is owed on the property as of the closing date. Because these tasks are generally handled by clerks who in turn rely on computer print out, by indicating “E.&O.E.” the bank disclaims any mistakes the clerk or the computer may have made.

Legally speaking, however, the E.&O.E. disclaimer is far from absolute. While it may offer the company a right to hire a lawyer to disclaim liability, whether the disclaimer actually holds weight in front of a judge or not is an entirely different matter.

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The Ontario Disability Support Program (ODSP) and the Canada Pension Plan: A Comparison

Posted in: "All, Administrative Law, Business Development, Legalese Dictionary by Admin | 1 Comment Monday, November 16, 2009

I recently received a few inquiries regarding the difference between the Ontario Disability Support Program (ODSP)* and the Canada Pension Plan (CPP).^ Below is a brief comparison for your reference. Please be reminded that it’s not meant to be an exhaustive list.

Similarities between ODSP and CPP Disability Benefits

Substantive

  • Both the ODSP and the CPP are designed to assist persons with long-term disabilities.
  • Both programs contain cancellation clauses under which the benefits may be cancelled if the applicant has ceased to be disabled.
  • Both programs contains reinstatement clauses for those who have been cancelled and  have subsequently become disabled again.
  • The Courts have held that interpretation of the legislative requirements demands a liberal reading, and any ambiguity thereof should resolve in the applicant’s favour.

Procedural

  • Both are primarily decided by the administrator of the program.
  • Most decisions made by the administrator may be appealed to independent tribunals. ODSP decisions may be appealed to the Social Benefits Tribunal , CPP decisions to the Office of the Commissioner of Review Tribunal.
  • An Internal review or a reconsideration request is required before the decisions can be appealed to the tribunals.
  • The hearings conducted by the tribunals are relatively informal.
  • The hearings are private and confidential, i.e., not open to the public.
  • The rules of evidence, such as medical documents, are relaxed, as long as procedural fairness is observed.
  • Members of the tribunals travel to conduct hearings in locations that are convenient for the appellants.

Differences between ODSP and CPP Disability Benefits

Substantive

  • The ODSP is an Ontario program, while the CPP is a federal one.
  • The ODSP is funded by the Province of Ontario, while the CPP is largely funded by the participants’ contributions.
  • The ODSP is open to Ontario residents who meet the prescribed requirements, while the CPP is only open to those who have made the required contribution prior to the claim.
  • The amount payable is calculated largely according to the benefit unit’s budget requirement, while the CPP is calculated according to the level of past contribution.
  • ODSP appellants may seek interim assistance before the decision is rendered by the tribunal, while  CPP appellants may not.
  • The legislative definition of “person with disability” differs under the ODSP and the CPP.

Procedural

  • The ODSP appellant may appeal the decision of the Social Benefits Tribunal to the Ontario Superior Court.
  • The CPP appellant may appeal the decision of the Office of the Commissioner of Review Tribunal to the Pension Review Board, and subsequently to the Federal Court.
  • The CPP contains provisions allowing persons directly affected by the decision to take part at the tribunal as a party, while the ODSP doesn’t have such provisions.
  • ODSP appellants have the right to appeal to the Ontario Superior Court on a question of law, while leave (permission) is required for CPP appellants to appeal to the Pension Review Board.
  • The Social Benefits Tribunal is entitled to be represented at the Ontario Superior Court on further appeals, while the Office of the Commissioner of Review Tribunal does not have the right to participate on further appeals.

* Ontario Disability Support Program Act, S.O. 1997, c. 25, Sch. B

^ Canada Pension Plan, R.S.C. 1985, c. C-8

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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