Frequently I advise clients who have or are forming an incorporated business with two or more shareholders to enter into a shareholders’ agreement. Why? An effective shareholders’ agreement clearly sets out the rights and obligations amongst shareholders and establishes mechanisms to deal with – or avoid – disputes that may arise in the future. An …
Can your sibling stop you from visiting your mom or your dad?
As the baby boomer generation ages and requires greater assistance from their kids and grandkids, it is not uncommon to see old rivalries and animosities between children resurface. This is particularly so where the onset of dementia and other health concerns necessitate children caring for their parents and managing their property. Where siblings disagree over …
Only Ontario pay should be considered in calculation of ESA severance (according to the Ontario Labour Relations Board)
Section 64(1)(b) of the Employment Standards Act, 2000 (“ESA”) provides that a terminated employee with 5 or more years of service is entitled to statutory severance pay (in addition to notice or pay in lieu of notice) if the employer has a payroll of $2.5 million or more. Up until a 2014 decision of the …
#BalanceforBetter – A lawyer’s thoughts on International Women’s Day 2019
The theme of International Women’s Day 2019 is #BalanceforBetter. In 2019, it is our collective obligation to strive to create a more gender-balanced world. At Cunningham Swan, we are fortunate to work with many amazing women, both within the firm and as clients. On International Women’s Day, we celebrate the achievements of these individuals. But …
Who determines mental capacity at law?
Navigating the different tests for mental capacity and who assesses what, where, when and how, are questions that can be much more complex than many of us assume. In general terms, who decides whether a person is capable depends on what the decision is that needs to be made. This is because each task we …
Much Ado about Nothing The Milne Estate Revisited
After several months of uncertainty potentially affecting thousands of wills in the province, the Divisional Court has confirmed that not only is the use of double wills acceptable, but there is no uncertainty that invalidates a will when “allocation clauses” are used in the definitions of the assets passing under each of two wills. The …
How enforceable are restrictive covenants?
Restrictive covenants are often included in commercial agreements to provide a limited time for a new or existing business owner to solidify relationships with its customers, suppliers and employees without fear of competition from a current or previous business owner. Our clients often ask: How enforceable are restrictive covenants? The answer is…it depends. The leading …
Further Update: Milne Estate & Multiple Wills
The decision in Milne Estate (Re) ( 2018 ONSC 4174 ) (“Milne”) referenced in our October 15, 2018 post has been appeal to the Ontario Divisional Court. As discussed in that post, the Milne decision invalidated a “basket clause” in a primary will that granted the estate trustee the discretion to determine whether the assets …
Certainly Uncertain: Milne Estate and the Requirement of Certainty of Subject Matter in Multiple Wills
Since 1998, when the court in Ontario affirmed the practice in Granovsky v. Ontario, estate lawyers have been using multiple wills to help reduce Estate Administration Tax (commonly called probate tax). The concept is simple: one will for the assets that require a Certificate of Appointment of Estate Trustee with a Will (a “Certificate”, commonly …
Building Inspections Do Not Violate Charter Rights
In a recent case, a group of residents attempted to argue that an inspection by building officials authorized by the Building Code Act should not be permitted as the inspection would violate their Charter rights. The facts of the case are pretty straightforward. In 2006 an addition was built at the rear of a house …
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