Lancaster, Brooks & Welch LLP

St. Catharines Office
80 King Street Suite 800
Tel. 905.641.1551
Welland Office
247 East Main Street
Tel: 905.735.5684

FAQ


LABOUR AND EMPLOYMENT LAW

What is “Wrongful Dismissal”?

The term “wrongful dismissal” refers to an employer’s failure to give an employee reasonable notice or pay in lieu of notice, when terminating an employee’s job and there is no just cause for the dismissal. If you are a unionized worker covered by a collective agreement, you cannot sue for wrongful dismissal. Instead, you must contact your union for assistance. For unionized workers, all work-related issues (including dismissal and those topics specifically mentioned in the collective agreement) are likely to be governed by the grievance and arbitration processes.

What is “Reasonable Notice”?

Reasonable notice is the notice that an employee is entitled to receive when he/she is dismissed from his/her job. The notice may be written or oral, but it must be communicated in clear and plain language.

How Much Notice is Reasonable?

The first consideration is the minimum statutory requirements for termination pay under the Employment Standards Act, 2000 (“ESA”). At common law, the courts also look at a variety of factors including: the employee’s age, the position held, length of service, the employee’s level of compensation, and the availability of similar work, given the employee’s experience, training, and qualifications. In turn, this notice period will assist in determining the amount of compensation that a worker is entitled to upon dismissal. You should consult a lawyer to determine your entitlement to notice, as your common law entitlement may be substantial higher than your entitlement under the ESA.

What is “Constructive Dismissal”?

In a case of constructive dismissal, an employee has not been terminated, but the employer has unilaterally made a substantial change to the employee’s working conditions. The change may relate to, amongst other things, the employee’s duties, position, compensation package, or the work environment. The change is such that the employee may feel forced to resign from his/her job. The remedies for constructive dismissal are similar to those found in a wrongful dismissal lawsuit. As constructive dismissal is an extremely complex area of employment law, specialized legal advice should be sought.

REAL ESTATE

Do I need a lawyer when I either buy or sell real estate?

Yes. Ontario’s Land Registration System has been automated. Only lawyers practicing Real Estate can access the electronic registration system to transfer real estate from one person to another.

What is a lawyer’s role when I am either buying or selling real estate?

On a purchase, the lawyer’s job is to make sure that you, and your mortgage lender, get what you are supposed to get, and that the transaction is completed properly and on time. To do this, your lawyer will:

  • Review the Agreement of Purchase and Sale with you to help you understand the contract. Contract can be particularly complicated if you are buying a new home or a condominium unit from a builder.
  • Complete a title search. to make sure there are no defects or mortgages, or liens on the title.
  • Make sure that there are no tax arrears, and that there are no court judgements affecting the property.
  • Prepare all the legal documents that will be required to complete the transaction, including all mortgage documents required by your lender.
  • Arrange for title insurance for you and your mortgage lender. Title insurance is normally required if there isn’t an up to date survey available
  • If the property is a condominium unit, you lawyer will review the Status Certificate and related documents from the condo corporation.
  • Deal with the seller’s lawyer to make sure all problems are addressed and to make sure the right documents are prepared.
  • Meet with you before closing, to review and sign all documents, and to go over the financial aspects of the transaction.
  • Get the mortgage money from your lender, and arrange to provide certified payments to the seller’s lawyer.
  • Register the deed and the mortgage on closing, so that keys can be released to you.
  • Advise the Tax Department and all utility companies of the change in ownership to ensure accurate billing.

On a sale, the lawyer will help you to make sure the transaction in completed property and on time. To do this, your lawyer will:

  • Review the Agreement of Purchase and Sale.
  • Search the property to find out whether there are mortgages to be discharged.
  • Deal with the buyer’s lawyer about any outstanding title matters.
  • Obtain tax information and calculate how much the buyer has to pay on closing. (the “Statement of Adjustments”).
  • Obtain Mortgage Discharge Statements for any mortgages or lines of credit that need to be paid out to close the deal.
  • Prepare the deed and other sale documents.
  • Meet with you to sign all sale documents.
  • Deliver the sale documents and keys to the buyer’s lawyer and in return receive payment of the balance due on closing.
  • Arrange to payout any outstanding mortgage.
  • Provide the seller with net sale proceeds.

What is Land Transfer Tax, and how much will it cost?

Land Transfer Tax is payable by the buyer in order to register a deed. IT must be paid at the time of registration. The tax is calculated using a sliding scale based on the value of the property.

Do I qualify for the first time homebuyer Land Transfer Tax Refund?

If you have never owned an eligible home anywhere in the world, and your spouse has not owned an eligible home anywhere in the world while he or she was your spouse (either married or common law spouse), then you may qualify for the Land Transfer Tax Refund for First Time Homebuyers. You must occupy the home as your principal residence no later than nine months after the property is transferred to you. The Refund only applies on the first $2,000 of tax.

What is a joint tenancy?

IF two or more people buy property together, they can own the property as “joint tenants”, or as “tenants in common”. Joint tenancy means that if one owner dies the other joint owners automatically become the owners of the deceased owner’s share of the building, just by surviving.

However, if a property if owned as tenants in common, the deceased owner’s share of the estate will be dealt with in his or her will.

CORPORATE/BUSINESS LAW

What are the different ways in which I may carry on my business in Ontario?

The most common means of carrying on business are a sole proprietorship, partnership, and corporation.

What is a sole proprietorship?

If you carry on business as the only owner, and you are not incorporated, you are carrying on business as a sole proprietorship. Many small businesses are organized in this way.

What are the benefits and drawbacks of being a sole proprietor?

A sole proprietorship is the simplest form of carrying on business and involves the fewest legal formalities required in operating a business. You will normally still have to register a business name and sometimes business licences are required as well All of the profits of the business flow through directly to the owner. However, the owner is fully liable for all of the debts of the business. In addition, as the profits of the business flow through directly to the owner each year, these profits are taxed as personal income each year. at the business owner’s individual tax rate. Any liabilities of the business are business owner person debts, and can impact the personal assets of the owner.

What is a partnership?

If two or more people carry on business together with a view toward profit, and you are not incorporated, then you are considered to be in a partnership.

What are the benefits and drawbacks of a partnership?

The structure may be kept relatively simple. However, we would recommend signing a partnership agreement in order to define each partner’s duties and responsibilities. A partnership is not recognized as a separate legal entity. The profits and losses of the business flow through to the individual partners on a proportionate basis, and partners must pay tax on any profits at their personal rates each year. The partners are personally liable for all partnership debts, so their personal assets are on the line.

What is a corporation?

A corporation is a legal entity which is separate from its owners (its shareholders). A corporation may own property, carry on business, possess rights and incur liabilities all on its own account. The shareholders own their corporation through their ownership of shares.

What are the benefits and drawbacks of a corporation?

As the shareholders of the corporation are not personally responsible for its liabilities, this makes it very attractive for a business owner. However, banks, landlords and suppliers may require personal guarantees if they deal with a corporation. In addition, since a corporation is a distinct legal entity, it continues in existence regardless of the death of a shareholder or a transfer of his or her shares. Finally, the corporation itself pays tax on its income at a fixed corporate tax rate and then the owners of the corporation have flexibility as to how money comes out of the corporation and is then taxed in their hands personally. For all of these reasons, the corporation is the most commonly utilized structure for a business. However, as it is a separate entity, any losses incurred by the corporation cannot be set off against other personal sources of income of a shareholder. There are also the costs of incorporating and maintaining the corporation to consider, and ongoing accounting costs and additional tax returns. In most cases, the benefits of incorporating far outweigh the drawbacks.

FAMILY LAW

Q: How do I become legally separated?

A: You do not need a document or form to prove that you are separated. If you are living separate and apart and there is “no reasonable chance of reconciliation” between you and your spouse you are separated. You can be “legally separated” and continue to reside in the same residence.
Sometimes the date of separation can become an issue during litigation. Factors that a court would take into account to determine this date include:

  1. Are you dealing with your finances separately:
  2. Do you sleep in the same bedroom?
  3. Do you go out socially together?
  4. Are you dealing with your household activities separately (i.e.,: meals, chores, children’s activities)
  5. Do you and your spouse hold yourself out as separated to third parties?

The date of separation may be difficult to determine. It is sometimes a question of fact. However, the date can be critical as it is the date that you will use to value your family assets and debts.

Q: How do I resolve the issues arising out of my separation from my spouse?

A: Once you are separated from your spouse, it is preferable that that parties attempt to negotiate a separation agreement. It is adviseable that the terms of the separation agreement be negotiated and draft by an experienced family law lawyer. Your separation agreement will deal with issues involving your matrimonial home, custody and access of your children, child and spousal support and division of your assets including any pensions. Your separation agreement will also incorporate important releases regarding future claims which your spouse may have.

Q: What is a Separation Agreement?

A: A Separation Agreement is a contract that addresses legal issues arising from your separation. It may deal with custody/access, child/spousal support and a division of net family property. The parties can be creative and agree to resolve issues in any fashion that works for the parties and is agreeable by both parties. It order to have a valid Separation Agreement, the Agreement must be in writing, signed by the parties and witnessed by a third party.
It is very important that prior to executing the Agreement, both parties exchange full and complete sworn financial disclosure of all assets and liabilities that existed on the date of separation and the date of marriage. Furthermore, in order to solidify the terms of your Separation Agreement, so that it will be difficult for either party to challenge the Agreement in the future, it is highly recommended by both parties have independent legal advice prior to signing the Agreement.

Q: What if we are unable to agree on terms of a Separation Agreement?

A: If you and your spouse (with or without the assistance of counsel) are unable to agree on terms of an Agreement, it may be necessary to seek the assistance of a court to resolve your matrimonial dispute. Either party can initiate court proceedings by filing the necessary forms (i.e. Application, Finaancial Statement and Affidavit in Support of Custody and Access) Once an Application is commenced, the opposing party will need to file responding materials.
Mediation through a trained and certified mediator may be an alternative to going to court.

Q: How do I become Divorced?

A: In order to obtain a Divorce, either party must initiate court proceedings, by way of an Application for a divorce. Once the Divorce Application is issued by the court, it must be served on the opposing party. If the opposing party does not dispute your claim within 30 days of receiving the Divorce Application, the person can be noted in “default”. You must then swear an Affidavit in support of the Divorce Judgment. The Affidavit, along with a Notice of Motion, will then be filed with a Court. A Judge will then receive the materials and review same. If the Judge is satisfied with the contents of the Affidavit, he/she will grant a Divorce Judgment. The other party has 30 day to appeal the Divorce Judgment. You are divorced, after the 30 days waiting period has lapsed without an appeal being filed. After the 30 day appeal period has lapsed a Certificate of Divorce can then be obtained from the court. You can only remarry if you are divorced.

Q: Once I separate from my spouse, how is custody of my children determined?

A: Custody of a child is determined by a court based on the “best interests” of a child and each parent is equally entitled to claim for custody of a child. In the event of a custody dispute, a court uses several factors to determine the best interests of the child, including the child’s age and the amount of time that a stable home environment has existed, the views and preferences of the child, any special religious or educational needs. Sometimes, the court uses the assistance of a professionals (i.e., the Office of the Children’s Lawyer, a Custody and access assessement, a psychologist, medical evidence etc.), in order to determine the “best interests” of a child.

Q: Do I have to pay child support?

A: The law considers “child support” to be for the benefit of the child. Child support is generally paid to the custodial parent. The quantum of child support is based the Child Support Guidelines which considers only the payor’s income. The recipient’s income is irrelevant unless there is a situation of split or shared custody. Although some parties express concern that their support payments will not be spent on the child, the court enforces strenuously each parent’s legal obligation to provide support for their child. The payor parent will often also be required to pay a proportionate share of extraordinary expenses related to the child.

Child support is not tax deductible to the support payor or taxable to the support recipient.

Q: Do I have a right to claim spousal support?

A: If you are a spouse (married or common-law), and you have a “need” for support, you may have an entitlement to spousal support. Usually, spousal support will be granted by a court if a spouse was dependent on the other spouse financially during the relationship or the spouse has suffered an economic disadvantage as a result of the relationship (i.e., stayed home to raise children, was in ill health, etc.). Unlike child support, the periodic spousal support payments are tax deductible to the support payor and taxable to the support recipient. The Spousal Support Advisory Guidelines are generally used to determine the quantum and duration of spousal support.

WILLS AND ESTATES

What happens if I don’t have a Will?

If you die without a will, (which is also called dying intestate), your estate will be dealt with in accordance with the Succession Law Reform Act (SLRA).

In the event that you are married and have no children, your husband/wife will receive your property. If you are not married, but live in a common law relationship, your common law spouse will not inherit any of your property, but they may be able to make a claim for support against the estate. In the event that you die without a will and are married with children, the SLRA states that the surviving spouse gets a preferential share, and the balance is divided between the surviving spouse and children.

If a person dies without a spouse or children, then the deceased’s parents would inherit the estate. If the deceased had no surviving parents, then his or her property would be divided equally among his or her brothers and sisters. If any brothers or sisters have predeceased the person who has died, the share of that brother or sister is divided equally among his or her children. In the event that a person dies without a spouse, heirs, or next of kin, the government will receive the property of the estate.

Why should I have a Will?

A Will provides specific instructions on what to do with your Estate (which consists of all of your possessions, property, etc.,) after your death. By having a signed Will you can ensure that:

  1. The people who you want to leave specific things to will get them;
  2. The people that you want to administer your Estate will be properly designated to do so;
  3. That your relatives will not be left with costly issues to deal with after your death;
  4. The people that you have designated as the guardians of your children will have the right to care for and be appointed legal guardians.

What is a power of attorney?

A power of attorney is a legal document in which you give one or more persons the legal authority to make decisions about your finances or property (called a Continuing Power of Attorney for Property) or personal care (called a Power of Attorney for Personal Care).
It is strongly recommended that everyone have these two powers of attorney in addition to a Will.

Disclaimer

Lancaster, Brooks & Welch LLP is a full service law firm. The preceding Frequently Asked Questions (FAQ) are meant to provide you with answers to some of the most common questions we receive in some of the areas of law that we practice. The answers provided should not be considered legal advice. Each case has its own unique facts and circumstances and will require a lawyer to meet with you to review all the relevant factors to provide you with an informed legal opinion.

For a complete list of the areas of law we can help you with, please click here.

St. Catharines Office

  • mail_white P.O. Box 790
  • user_white 80 King Street. Suite 800
    St. Catharines, ON, L2R 6Z1
  • speech_white Tel: 905.641.1551
  • speech_white Fax: 905.641.1830
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Welland Office

  • mail_white P.O. Box 67
  • user_white 247 East Main Street
    Welland, ON, L3B 5N9
  • speech_white Tel: 905.735.5684
  • speech_white Fax: 905.735.3340
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