Dying Dangerously: The Risks of Making a Homemade Will

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We’ve all seen those homemade do-it-yourself will kits at the local bookstore: “Wills Made Easy! $19.99!” Why would you ever pay a lawyer hundreds of dollars when such a cheap option is staring at you from the bookstore shelf?

Because your beneficiaries deserve better. Spending money on a will is not for your benefit. The ones who will benefit are be your spouse, your kids, your grandkids, your friends – anyone to whom you want to leave a legacy. Here are three significant risks of leaving the fate of your estate in the hands of a homemade will.

Risk #1: Your Wills Kit Is Probably Wrong

The most popular homemade wills kit on the Chapters/Indigo website was published in 2008. As of today, that’s 10 years old. Would you trust the advice of a lawyer who hasn’t stayed up to date on the law for the past decade? Who hasn’t made sure his or her skills reflect the current best practices? Because, for $20 (or free if you find an online template), that’s what you’re getting: old information. Not the best practices and outdated practices.

In 2013, BC brought in sweeping changes to our wills and estates legislation with a new act called the Wills, Estates and Succession Act. This piece of law has upended lots of old estate planning practices in BC. Note the year: 2013. That’s 5 years after the top-selling wills kit on the Indigo website was released. Add in that this wills kit is sold all over Canada (each province has its own wills laws) and you’ve got some outdated, generalized, one-size-fits-all forms that are likely incorrect and out of date.

Risk #2: You’re Leaving Your Will Vulnerable to Challenges

So, you’ve ignored risk #1 and decided to do a homemade will. Now you cross your fingers and hope that, after you die, nobody argues that your will is invalid. Some ways that your will can be challenged are:

  • you didn’t sign the will in front of two witnesses;
  • if you DID sign the will in front of two witnesses, one or both are named somewhere in the will (executor, beneficiary, guardian, etc.);
  • you did not have mental capacity when signing;
  • you made the will under duress or undue influence; or
  • you left your will open to lawsuits by disinherited kids (on this point, see my previous blog post: How Can I Write Someone Out of My Will (And, Should I)?)

Hiring a lawyer to do your will minimizes the risk of these challenges being successful. When you hire a lawyer, you’re not just hiring someone to write down your wishes. You’re also paying for your lawyer’s observations and notes. These notes are critical to ensuring that your will stands up to estate litigation.

Your lawyer’s notes help to protect your estate from claims that your will was not made properly. During your initial consult, your lawyer ensures that you know what you’re doing, you have a general idea of the value of your assets, and that nobody’s forcing you or holding a gun to your head. Your lawyer will also ensure that the witnesses to the will are valid. While, of course, you can’t completely prevent a lawsuit, the presence of your lawyer’s notes confirming capacity and free will could go a long way in helping to prevent a claim from being successful.

Risk #3: You’re Not Getting Advice When You Need It Most

Ignoring the other big risks of doing your own will – using an outdated kit and leaving your will open to challenges – the biggest risk of all, in my opinion, is that you are losing out on legal advice. While doing a will may seem straightforward, it is not simple. When you sit down with your lawyer, your lawyer will inevitably ask you questions that shift your way of thinking, or direct your mind to scenarios that you haven’t considered. While you may only write one will every 10-15 years (or, perhaps, once ever), a busy estate planning lawyer will do potentially dozens of wills every month. This means that your lawyer has essentially seen it all, and will be able to give you advice on your estate planning needs no matter how unusual or sensitive your situation. A homemade wills kit (or a free online form) isn’t going to give you any advice. And no matter how simple you think your estate planning needs are, there’s always a place for sensible, insightful legal advice for your situation. Estate planning is more than a will, and there are lots of other tools that your lawyer can help you create to accomplish your goals.

Conclusion: Invest in Your Legacy

As I hope these risks – using a bad wills kit, leaving your will vulnerable to challenges, and not getting legal advice – have shown the potential for disaster that can occur due to a homemade will. One final thought: dying with an inadequate will isn’t your problem. You won’t be here to worry about it. Instead, you’re pushing the problem to the next generation and burdening your family with all of the frustrations that come with a poorly written will. The homemade will you write could not only cost your estate thousands in legal fees and perhaps unintended probate fees, but could also create emotional turmoil amongst your surviving family members as they struggle to comprehend your final wishes.

We’re in the business of avoiding that messiness and helping you achieve your goals. Please give us a call at 604-465-9993, or email me directly at jnay@beckerlawyers.ca, if you’d like to schedule a free consultation to talk about your estate planning needs.

What Am I Paying My Real Estate Lawyer For?

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“Your realtor and your mortgage broker carry your home purchase (or sale) the first 200 yards. Your lawyer brings it home for the last 20 yards.”

That’s paraphrasing a friend of mine, realtor David Smith, describing the role of a real estate (or “conveyancing”) lawyer. And, you know what? It’s true. By the time the file gets to us, your lawyer, most of the journey is complete. Contracts have been signed, funding has been secured, subjects have been removed. You’re just about there – mere days away from either getting the keys to your new home, or taking your cheque to the bank.

So why do you need to hire a lawyer? Well, first, you have to – you need a lawyer (or notary) when you buy or sell real property in BC. Our fees are modest:  as of the date of writing, $395 legal fees for a standard sale with one mortgage discharge, $595 for a standard purchase with one mortgage registration (plus disbursements and taxes, call us for pricing info particular to your situation).

Despite these prices, I’m commonly asked: “what are we paying you for?” And, “why should I hire a lawyer instead of a notary?” Here are three ways in which your lawyer plays a critical role in your real estate transaction.

#1: The Final 20 Yards Are Important

First – even though we only carry the deal for the last 20 yards, those 20 yards are really important. If you’re buying, your lawyer handles such details as finalizing your funding and getting your mortgage money, ensuring that the seller returns the signed transfer forms, and registering the transfer so that you actually end up owning the property. No big deal, right? If you’re selling, your lawyer ensures that the buyer pays for the home, your mortgage gets paid out and discharged, and you get your sale proceeds.

#2: We Do More Work Than You Might Think

If you’re like most real estate clients, your interactions with us are limited to some phone calls and emails to coordinate an appointment and gather information, and then a signing appointment, which is usually between 10-25 minutes. Based on that, I don’t blame some clients for wondering where their money goes. For our modest fees, however, you’re getting a lot of value. With all of the document drafting, number crunching, and correspondence with third parties (insurance providers, mortgage lenders, strata corporations, etc.) that we routinely do for files, it’s not unusual for our office to spend multiple hours on each transaction. We do lots of work behind the scenes to make your signing appointment as worry-free as possible.

#3: We’re There if Things Go Wrong

Here’s where having a lawyer instead of a notary comes in handy. Real estate deals rarely go sideways once they reach the closing stage. However, if last minute hiccups – issues with funding, disputes between the parties, stuff like that – do arise, that’s where your lawyer shines. And, that’s when a notary would have to refer you out to a lawyer. You’re paying for peace of mind when you hire a lawyer to help you with your conveyance.

Take this real-life example: a client was purchasing a townhouse. On the day of completion, the evening before possession was to change hands, the hot water tank burst, causing thousands of dollars’ worth of water damage. The next morning, we had to negotiate with the seller’s lawyer to draft an addendum to deal with holdbacks from the purchase price, insurance matters, that sort of thing. Had our client used a notary, that notary could not have done any of that work (notaries can’t give legal advice) and would have had to refer the client to a lawyer. Assuming the client could find a lawyer, that lawyer would have to familiarize themselves with the details and likely get a retainer before doing anything. But, they hired us off the bat – so they were covered.

Think of a lawyer as an insurance policy. Hopefully nothing happens that makes it necessary for us to jump in and fix things. But we’re there if you need us.

Conclusion

Your real estate lawyer is the final stop in a long journey. The last 20 yards. These 20 yards, however, are critical to completing your transaction. Remember that you’re not only paying your real estate lawyer to close your deal – you’re also paying for peace in mind so that you know, if things do go awry, we’ve got you covered.

One final note: for many law firms, residential conveyancing is, unfortunately, a neglected part of their practice. Many call it a “loss leader”. For us, however, conveyancing is a valued part of our business that we handle with pride. When you hire us for your real estate transaction, we strive to show you how excellent service can make your experience more pleasant, and how that service extends to every part of our practice.

If you have any questions, or to talk more about how we can help you with your real estate needs – or any other area of law that we serve – please phone or email us and we’ll be happy to talk to you.

How Can I Write Someone Out of My Will (and, Should I)?

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Writing someone out of your will is not usually a pleasant topic of conversation. Yet, in my dealings with estate planning clients, it’s not all that uncommon of a request – usually, parents are asking about either cutting a child out of their will entirely, or giving them a share that’s less than what their siblings are getting.

If only the law in BC were that simple, however. Our legislation (the Wills Estates and Successions Act) states that your spouse and your children – even your independent, adult children – have the right to sue your estate if they feel like they have not been provided for “adequately”. What if, for whatever reason, you don’t want one of your children to get a share of your estate when you die? How can you prevent that child from suing your estate? The short answer is: you can’t. But there are ways to reduce the risk of messy estate litigation. I’m going to touch on four ways to give money unequally to your children.

Strategy #1: Utilizing Joint Tenancies

The first strategy to consider when dividing your estate unequally is to put other names on assets you own. For example: real property, bank accounts, and vehicles. If someone else owns an asset with you, when you die, that asset will become the property of the surviving person on the title and won’t become part of your estate. Simple, right?

Beware, however, that a legal principle called the “presumption of resulting trust” kicks in when adding an adult (and mentally capable) child on to a property, bank account, or any other asset that can be owned by multiple people at once. This legal principle states that, unless the child can prove that this is a true joint asset that they use and enjoy, they are presumed to be holding the asset in trust for your estate. In other words, the child does not actually own anything – they  are simply keeping the home (or money, or car) safe for your estate. The asset then gets distributed as per the instructions in your will. While using joint tenancies may work, if a disgruntled child wants to fight it, they may have the law on their side.

Strategy #2: Set Up a Trust

The second strategy for dividing your assets unequally is to transfer your assets into a trust while you’re alive. A trust is essentially a document that states that a certain person (the “trustee”) is holds one or more assets in trust for the benefit of one or more people (the “beneficiaries”). Because the assets formerly owned by you are now owned by the trust, they don’t fall into your “estate”, meaning that they are not exposed in a potential estate lawsuit. Unlike joint tenancies, in which you remain as an owner, when you set up a trust you actually transfer ownership of an asset to a trust.

Don’t rush into trusts, however, as there are lots of legal and tax-based consequences. My policy is to urge clients to talk to an accountant before setting up a trust. I don’t give tax advice, ever.

Strategy #3: Name Beneficiaries Where You Can

Many people who find themselves wanting to cut a child out of their will don’t realize that, for any investment accounts with beneficiaries – RRSPs, TFSAs, etc. – as long as there is a named beneficiary (other than the estate), this money can go to anyone the person wants. Assets with named beneficiaries do not go into “the estate” upon death, which, in turn, means that a child cannot sue for a share of that asset. Unlike joint tenancies, which can be risky, naming a beneficiary on an account is a solid way to get money to someone while minimizing the risk of a lawsuit.

Strategy #4: Give Away Your Money While You’re Alive 

The final strategy for cutting someone out of a will is to simply give away your assets while you’re still alive. Obviously, this strategy isn’t always the answer and is usually more suitable for someone already planning for their passing and getting their affairs in order. But, the simple fact is that, the less money in an estate, the less worthwhile it is for a disinherited child to sue.

Should You Cut Someone Out of Your Will?

There are ways to disinherit a child. But, should you? Aside from the legal risks to your estate, bear in mind the potential strains on your survivors.

Consider this scenario: a will-maker (“WM” for short) has three adult children, one of whom is estranged from WM, but still speaks to his siblings. WM names one of the two other children as his executor. WM decides not to give the estranged child a share of his estate, despite his lawyer’s warning about the risk of a lawsuit.

WM eventually passes away. Estranged child is angry about being cut out, and decides to sue the estate. Suing “the estate”, however, really means that the estranged child is suing the executor child. Now, two of WM’s children are in a legal battle over WM’s estate. So, before you decide to take the drastic step of cutting someone out of your will, consider the lasting impact your decision will have after you’re no longer around.

Conclusion

 As I tell clients who ask me about disinheriting a child: it’s your money, and you’re entitled to do whatever you wish with it. Some wishes are riskier than others, however. While there are strategies to minimize the risk of a lawsuit against your estate – utilizing joint tenancies, holding assets through a trust, naming beneficiaries, and giving away your money while you’re still alive – the only way to eliminate the risk of a lawsuit is to give more-or-less equally to all of you children, or at least equally enough so that a lawsuit isn’t worth the time and money. (And, since I’m asked all the time: no, you can’t just give your child $1 and call it a day.)

No matter what you want to do, make sure that you talk to a lawyer first. Navigating this area of law without a lawyer is like walking through an active minefield with your eyes closed. As I’ve discussed, there are options, but you need to be careful and be aware of the risks of cutting a child (or spouse) out of your will.

Choosing and Working with a Lawyer: Six Tips

How do you pick a lawyer? How do you know if a lawyer is serving you well? There’s no shortage of choice in the marketplace. I thought I’d share with you some tips I have for choosing a lawyer and maintaining a healthy, rewarding business relationship. Whether you’re incorporating a business, buying a home, or engaging in some unfortunate litigation, keep these tips in mind.

1: Meet Your Lawyer

When choosing a lawyer, you can read as many online reviews or talk to as many friends as you’d like, but, as with most relationships, you’ll have the most success with a lawyer with whom you personally connect. You won’t know whether a lawyer is right for you until you meet them. If, after meeting your potential lawyer, you decide they’re not right for you, keep looking. There are a lot of options out there and not every lawyer is suited to every client (and vice versa). 

2: Ask Questions

Don’t be afraid to ask questions! That’s what we’re here for. I’ve lost count of the number of times when I’ve been in meetings and clients have apologized for asking a question. Remember: you hire a lawyer to give you legal advice and help you work through whatever legal issue or process you’ve got on the go. Your lawyer should be happy to answer any questions you might have.

3: Know Your Lawyer’s Role 

Your lawyer’s role is not to tell you what to do. Your lawyer acts on your instructions. We can recommend a certain course of action and explain the pros and cons of whatever decision you need to make – that’s our job – but, at the end of the day, those decisions are still yours. We advise you of the legal consequences and risk. You choose how to act.

4: Demand Transparency

Be wary of any lawyer who refuses to talk about legal fees. It’s your money – demand transparency. Your lawyer should be able to give you an estimate of your legal costs, even if just a general ballpark figure, before being hired. For some areas of law, such as real estate and estate planning, costs are predictable. Areas such as civil litigation and family law are harder to gauge, and your lawyer will work mostly on an hourly-rate basis. But you should still be able to get an idea of how much money you’re looking at spending on a case-by-case basis.

5: Don’t be Put Off by Retainers

Speaking of fees: don’t be put off if a lawyer asks you for a retainer in advance. The money still belongs to you – your lawyer is just holding it in their trust account as security for payment and will return any unused funds. Not all areas of law require retainers – they’re usually reserved for costly and/or time-consuming matters such as complex business transactions or litigation.

6: Keep Tabs on Communication

Poor communication is the top complaint – by far – about lawyers. A lawyer can sit in their office and correspond with everyone by snail-mail letter. Every other industry demands fast communication: the legal world should be no different. If your lawyer isn’t returning your phone calls or your emails in a timely fashion, have a discussion about it. Don’t stand for poor communication.

Conclusion

All of these tips have a common theme: know who you’re working with and how they work. Gone are the days when a law office was a “black box” with mysterious inner workings. These days, you should expect – and demand – transparency, clarity, and communication from your lawyer, no matter what your legal issue is.

If you have any questions, or you’re interested in our services, give us a call at 604-465-9993.

Or, if you’d like, email me, Jamie Nay, directly at jnay@beckerlawyers.ca and I’d be happy to talk to you.

Why Should I Pay a Lawyer to Incorporate My Business?

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When you decide that it’s time to incorporate your business, you’ll be faced with a choice: do you file the incorporation yourself, online? Or do you pay a lawyer to do it for you?

For many people, this choice comes down to price. Yes, you will save money by incorporating your business yourself. You can’t get away from all charges: the BC government charges $350 to incorporate a company, plus a $30 name reservation fee (unless you want to operate as a “numbered company” without a name). Otherwise, the only up-front cost to incorporating yourself is your time.

So, why on earth would you pay a lawyer to incorporate? Because we – the lawyers – are the experts. For the reasons that follow, you’ll see how using a lawyer to incorporate benefits your company and its future growth.

We Give Your Company Robust Articles

When setting up your company, you need to create a set of rules called the “Articles”. The Articles set out, among other things, how a company is governed and how business is conducted, as well as outlining any rights and restrictions that shares have (more on that later).

While the BC government does publish a standard set of Articles, you have to actually adopt those Articles (called the “Table 1 Articles”) when you incorporate your company – it doesn’t happen automatically. For this reason, a self-incorporated company often doesn’t have any Articles, simply because the incorporator missed the crucial step of adopting the Table 1 Articles. Without Articles, a company is technically in breach of the Business Corporations Act and, while this admittedly isn’t the end of the world, this will present a problem when the company seeks financing, tries to attract investors, or is sold. Even if your company does adopt the Table 1 Articles, these general-purpose provisions may not suit your business. Maybe you want to conduct directors’ meetings differently, or maybe you want a different process for approving share sales and transfers. Going to a lawyer to incorporate means that you’ll get a thorough, organized, and legally compliant set of Articles that is fine-tuned to your company’s needs.

We structure your company for future growth

Another aspect of incorporating that’s often overlooked is the company’s share structure. For all but the simplest businesses, you will want to have different classes of shares, each with their own purposes. Some shares may be for voting; some may be for receiving dividends. Some might be given to family members, while others could be sold to investors. Every share class in your company should have its own set of “special rights and restrictions”, which go in the Articles and specify things like voting rights, dividend entitlements, money received on wind-up of the company, and so on.

Yet, when incorporating online, many business owners only put in one type of share. These shares are usually simple “common” voting shares. This setup is fine enough for a company with a single shareholder. But what happens if you want your spouse to have shares for dividends? Or if you want to bring in partners? Unless you’ve incorporated with a robust share structure, you can’t – at least, not without changing the share structure, which costs money to file (and, of course, you need to write the rights and restrictions for the shares). Having a lawyer do your incorporation ensures that your company has different types of shares and is prepared for future expansion or change.

We Keep Your Company in Good Standing

Every year, every BC company needs to file something called an “annual report”, which is essentially a notice to the government that says “hey! We’re still alive!” If you miss filing one annual report, your company falls out of good standing. If you miss filing two annual reports, your company is dissolved, which essentially means that it no longer exists. It’s possible to have a dissolved company reinstated (this is called a “restoration”), but it’s complicated, time-consuming, and expensive. When you incorporate with a lawyer, you have the option of keeping your company’s books at that lawyer’s office, meaning that your annual report gets filed every year, your company stays in good standing, and no unexpected interruptions to your business will happen due to a failure to file the proper paperwork.

Coming to a Lawyer Lets You Focus on Your Business

Incorporating your company through a lawyer, for a modest one-time fee (which you can write off), will help to get all the legal nuts and bolts of your business in place. This, in turn, lets you focus on what you’re best at – running your business – while leaving the legal work to the experts, ensuring that your company has the capacity to handle future growth.

If you’d like to incorporate a company, or if you’ve already incorporated a company but want some help fixing up the books or getting back into good standing, contact us today for a free consultation.

Do I Really Need My Employees to Sign Contracts?

“I trust my employees.”

“I want to keep things casual.”

“We don’t need policies and rules.”

In the many discussions I’ve had with small business owners about the importance of having their employees sign employment agreements, these are common objections. Sometimes, the business owner will grudgingly admit the possible usefulness of such an agreement, but then: “can you just give me a general template? I’ll fill in the blanks.” The hesitation on the part of employers about having proper written employment agreements is understandable, especially for smaller businesses. Good employees are a valuable resource, after all. You don’t want to risk scaring off employees with thick tome of archaic legal language – maintaining a certain workplace culture is critical to the success of a business.

Some parts of the employee-employer relationship, however, are too important to leave unwritten. An ideal employment agreement balances the employer’s desire to maintain the business’s workplace culture with the necessity of defining the relationship and protecting the business from liability. If you are an employer currently operating without employment agreements, you should strongly consider defining your employees’ relationships in writing.

Employment Agreements Provide a Framework for the Employment Relationship

The typical employer-employee relationship is complicated. Even for the most casual of positions, many terms of employment come into play, such as:

  • compensation;
  • duties;
  • probation;
  • benefits;
  • termination/notice;
  • policies and procedures;
  • non-competition and confidentiality; and
  • ownership of intellectual property.

This is not an exhaustive list, but it gives an idea of the high-level concerns that an employment agreement addresses. Employers and employees are usually on the same page about things such as compensation and benefits, but misunderstandings and false assumptions can occur in many areas. The more explicit an employee’s rights and responsibilities are from the beginning of the employment, the less there may be to fight on down the road if the relationship turns sour.

For example: unless you are dealing with high-level, executive-type positions, your employees do not owe your business a duty not to compete after the employment relationship ends. This means that, without having employees agree not to compete post-employment in writing, they can solicit business from your customers or attempt to induce away your remaining employees to another position. A written employment agreement with a clear non-competition clause allows you to protect against this situation (note that non-competition clauses must be carefully drafted to be enforceable).

Employment Agreements Provide Certainty on How the Relationship Will End

Both you and your employees should be clear on the ways in which the employment relationship can end, and the subsequent ramifications. The ideal employment agreement outlines not only how an employee can be terminated with cause (“fired” for doing something wrong), but also how you can let an employee go without cause, including severance entitlement and notice periods. Without a written mechanism in place for termination without cause, an employee’s severance and notice is governed by the Employment Standards Act and the common law. In some cases, employees who have been terminated without cause (and without a written employment agreement) have found to be entitled to severance equal to more than 20 months of salary, which could have potentially been avoided by having an agreement with a clear and fair termination and severance section.

Yes – Employment Agreements Can be Simple!

An employment agreement does not need to be a long, dense, or overly “lawyerly” contract. In fact, for all but the top levels of executives, simpler employment agreements are often better – if they cover all the key points discussed above (and any other points that are important to your business).

Whether your business is more suited to formal employment contracts a dozen pages long, or simple two-page over letters, defining the framework of the employer-employee relationship is critical to avoiding misunderstandings and potentially costly litigation down the road. Having your employees sign agreements allows both parties a clear snapshot of rights, roles, and responsibilities. This clear snapshot, in turn, gives a degree of transparency to all aspects of the employee-employer relationship, notably the eventual termination of the contract.

If you’d like to discuss using employment agreements in your business, get in touch with us today to book a free consultation.

BC’s new Franchises Act: What Rights Do BC’s New Laws Give You as a Buyer of a Franchise?

Potential and current buyers of franchises, or “franchisees”, now hold a position of power when negotiating with franchise owners, or “franchisors”, thanks to new laws that came into effect in British Columbia on February 1, 2017. The Franchises Act has strict requirements that franchisors must follow when offering their franchises for sale, with severe consequences for breaking the rules. Three key aspects of the new laws – the requirement to deliver a “franchise disclosure document”, a duty of good faith and fair dealing for both parties, and the right of the franchisee to rescind an agreement or sue for misrepresentation – help to balance the negotiating power between franchisees and franchisors.

The Franchise Disclosure Document

The franchise disclosure document is a “one-stop shop” document that tells potential buyers all about the franchise that they’re potentially investing thousands of dollars in, and its key players. Franchisors need to deliver the document at least 14 days before the buyer signs a franchise agreement or pays any money. The disclosure document includes a lot of important information, such as:

  • information about the franchisor’s key player, such as their business background, and whether any of them have declared bankruptcy or have been convicted of fraud-related charges;
  • information about the franchise, including:
    • The cost to buy a franchise;
    • Territorial rights of the franchisee;
    • Any financing, training, or operating manuals that the franchisor offers;
    • Whether the franchisee must pay into an advertising or marketing fund;
    • The licenses, permits, registrations, etc. that a franchisee needs;
    • Whether the franchisee must personally assist in the operation of the franchise; and
    • The termination, renewal, and transfer clauses from the franchise agreement;
  • financial statements of the franchisor;
  • lists of current and former franchises, closed franchises, and other similar businesses owned by the franchisor; and
  • operating cost estimates and earnings projections.

The goal of this information is to allow a potential buyer to make an informed decision before buying into a franchise.

Duty of Good Faith and Fair Dealing

It’s not enough for the franchisor to deliver a franchise disclosure document. The bargaining and communication must follow the duty of good faith and fair dealing that the Franchises Act imposes. This duty ensures that both the franchisor and a potential buyer act in accordance with reasonable commercial standards. And yes: this duty applies to both parties.

Either party can sue for a breach of this duty. Of course, since this law is fresh in BC, there are no court cases dealing with such lawsuits, but it’s only a matter of time. This duty and the right to sue for a breach go a long way in helping to balance the negotiating power between franchisors and buyers.

Rescission and Lawsuits: Deterring Dishonesty

Finally, the Franchises Act gives buyers two new tools to combat unfair bargaining: the right of rescission (“undoing” an agreement) and the right to sue for misrepresentation.

The Right of Rescission

If a franchisor either fails to give a disclosure document to a franchisee within a certain period, or gives a document that’s materially deficient (i.e. missing required information – typos and minor technicalities don’t count) then the franchisee can rescind (undo) a franchise agreement without penalty. The franchisee gets their money back, and they’re released from the agreement.

Suing for Misrepresentation

Franchisees can also sue if they suffer a loss because of a misrepresentation or a material defect in a disclosure document. This right to sue exposes not only the franchisor, but its broker, associates, and anyone who signed the document. This powerful right helps to balance out the relative positions of power. Individuals who misrepresent the franchise put not only themselves and their business at risk, but anyone else involved in the marketing of the franchise.

Conclusion: Leveling the Playing Field

BC’s new Franchises Act helps to protect potential buyers of franchises by giving buyers crucial information at an early stage. Franchisors still hold the ultimate position of power. But, these new laws bring some balance with strict disclosure requirements, the duty of good faith and fair dealing, and the right of a buyer to rescind an agreement or sue for misrepresentation. These changes help to level the playing field for buyers of franchises in what is often a “take it or leave it” industry dominated by franchisors.

Cohabitation Agreements and Marriage Agreements

Beginning a new relationship or getting married is very exciting on one hand, but on the other hand is also the beginning of a broad spectrum of legal and financial implications along with rights and responsibilities. The question is, in the event of a breakdown of the relationship, how to protect your assets and save yourself from liabilities which get attached with the commencement of the relationship.

Cohabitation Agreements between unmarried couples and Marriage Agreements between married couples are very useful when one or both parties have significant assets or liabilities brought into the relationship or expecting to acquire during the relationship. Cohabitation Agreements may be converted to Marriage Agreements, or may be cancelled, if the parties intend to marry after some time.

The Family Law Act SBC 2011 c.25 defines a spouse as a person who is either married to another person, or in the case of unmarried spouse, either has lived with another person in a marriage like relationship and has done so for a continuous period of at least 2 years, or has a child together but has lived in a marriage like relationship for a shorter period of time. The unmarried spouses who have lived together for at least 2 years may be entitled to property and pension division, debt division, spousal support, and parenting arrangements if they have a child together. The unmarried spouses who have not lived together for at least 2 years but have a child together may be entitled for spousal support and parenting arrangements.

If the parties have entered into a Cohabitation Agreement in case they are living in a common law relationship, or the parties have entered into a Marriage Agreement if they have married, the Agreement itself can describe the division of assets and liabilities of the parties after they separate. It can also describe the complex issue of entitlement or waiver of spousal support by the parties. Apart from this, the Agreements also have provisions for issues dealing with child support of the eligible children of the parties from former relationships. These Agreements can consist of the parties’ arrangements of living and their rights and responsibilities during their relationship. From daily issues like who will spend money on groceries, and who will pay the rent and the rest of the bills etc. to parties’ obligations towards any properties purchased separate or together, or any liabilities incurred separate or together can be described in the Agreements. The Agreements also provide how to deal with the parties separate bank accounts and joint bank accounts, and the arrangements for doing household chores and taking care of the children if the parties have any.

It is very important that these Agreements be drafted by the lawyers. Both parties should be seeking advice from their lawyers and obtain Independent Legal Advice certificates, so that none of them can later say that he/she was not aware of what they were signing. Complete financial disclosure of both parties is another important aspect of these agreements.

Spending money on getting these Agreements might seem like a waste of money in the beginning, but they are well worth spending money on them, as they will protect you from legal implications down the road, and probably save you thousands of dollars!

Property Transfer Tax Exemptions

Welcome back! My last “blog” introduced you to the Property Transfer Tax (“PTT”) which is payable in most instances where there is a change to a property title. There are, however, exemptions to the payment of tax.

Several common exemptions fall under the heading of “Family” exemptions. For instance, if a related individual transfers a principal residence or an interest in the principal residence to you, you “may” be exempt from paying the PTT. Those people considered to be a related individual are:
• your spouse, child, grandchild, great-grandchild, parents, grandparent or great-grandparent;
• the spouse of your child, grandchild or great-grandchild; and
• the child, parent, grandparent or great-grandparent of your spouse.

Child includes stepchild.

Your “spouse” is:
• a person who you are married to, or
• a person who you are living with in a marriage-like relationship, provided that you have been living in this arrangement for at least two years. The marriage-like relationship includes people of the same gender.

Interestingly enough, people who are not considered to be a related individual include:
• your sister, brother, uncle, aunt, niece or nephew.

Naturally, there are several criteria in order for a property to meet the definition of a principal residence. For instance, one criteria is that either you (being the transferee) or the person transferring the property to you (the transferor) have had to reside on the property and have used it as their home. The second criteria is that the improvements on the land (for example, the buildings) are set up to accommodate three families or less. In other words, you would not be able to claim an apartment building as your primary residence. The improvements on the land must be classified as “residential” by BC Assessment. Finally, the land must be 0.5 hectares, or 1.24 acres or smaller.

Of note is that a person is considered to have only one principal residence at a time.

In the event a principal residence is transferred to two or more people who are not all related individuals of the transferor, the exemption will only apply to the interest acquired to those people who are related individuals of the transferor. For example, your father transfers his principal residence jointly to you and your boyfriend, but you are not living in a marriage-like relationship. The exemption would only apply to the 50% interest acquired by you because your boyfriend is not considered to be a related individual.

There are different rules that apply in the event the property that is being transferred to a relative is considered “recreational”. In this case:
• the person transferring the property must have “usually” resided on the property on a seasonal basis;
• the property must be classified as “residential” by BC Assessment;
• the land is 5 hectares or 12.36 acres or less; and
• the entire property has a fair market value of $275,000 or less.

As you may have determined, the application and calculation of the property transfer tax is not a simple one. More exemptions will be discussed in future blogs.

In the meantime, don’t hesitate to contact us if you are uncertain about the property transfer tax.

Tax Disputes with the Canada Revenue Agency

Dealing with the Canada Revenue Agency (“CRA”) during tax time can be stressful for taxpayers. However, tax debts can create a tremendous amount of stress for individual and corporate taxpayers alike. Sometimes tax debts create an unforeseen insolvency issue which requires a taxpayer to enlist the assistance of a bankruptcy trustee to file a consumer proposal or assignment to bankruptcy to compromise their tax liabilities. However, depending on the amount of tax debt (usually if the personal tax debt exceeds more than $200,000.00), legal counsel from the Department of Justice will oppose a tax debtor’s discharge from bankruptcy. CRA will usually insist on payment to the tax debtor’s bankrupt estate representing anywhere between 20% – 70% of the tax liabilities in tax-driven bankruptcies [1].

Where CRA is the largest – or only – creditor it is usually prudent to get advice whether there are grounds to fight the tax assessment or deal with the CRA debts outside the insolvency context.

Ignoring your tax debts is generally a bad idea. CRA has the ability to have the tax debts certified as a judgment in Federal Court, and register this judgment against a taxpayer’s interest in land. CRA can then proceed with a forced sale of the property to satisfy the judgement. Furthermore, CRA can freeze bank accounts and garnish wages, which can be highly disruptive to a taxpayer’s personal life or business. In other cases, CRA will hire bailiffs to seize and sell property of the tax debtor.

Outside of the insolvency context, there are a number of mechanisms that can assist taxpayers in resolving their taxes issues with CRA. A cursory list is below – as each of these topics could easily cover its own blog post.

1. Dispute the Tax Assessments/Reassessments

Pursuant to section 152 (8) of the Income Tax Act once a tax assessment is made, it is binding unless set aside by objection or on an appeal at the Tax Court of Canada.

Taxpayers have the right to dispute their tax assessment or reassessment by filing a Notice of Objection to the Chief of Appeals in the taxpayer’s local tax service office. There are strict deadlines to file a Notice of Objection. If the Appeal’s officer dismisses the objection, the taxpayer can appeal to the Tax Court of Canada [2].

2. Payment Arrangements

If there are outstanding tax debts, a taxpayer can attempt to enter into a payment arrangement with a CRA tax collector. This can be done with or without the assistance of legal counsel. The CRA tax collector will usually take into account the taxpayer’s personal circumstances when making payment arrangements. However, interest on the CRA debt continues to run even when a payment arrangement is entered.

3. Voluntary Disclosure Program

Taxpayers can make on a named or no-name basis, a voluntary disclosure provided the following criteria are met:

(a)Voluntary – the taxpayer must not be aware or have knowledge of any CRA collection or audit action;
(b) Complete – the taxpayer must provide full and accurate facts for the tax year or reporting period where the inaccuracies exist;
(c) Penalty – the disclosure must involve the application of a penalty (e.g. a late filing fee); and
(d) One year past due – the disclosure must be at least one year past due (this is usually strictly app
lied).

If accepted by CRA, the taxpayer will be not be charged any penalties and may receive partial interest relief. If the CRA officer’s reasons are unjustified or unreasonable, the taxpayer has the ability to pursue a review of the CRA officer’s decision in Federal Court by way of judicial review [3].

4. Request for Taxpayer Relief

In some cases, CRA will forgive a taxpayer from interest in penalties where the following exist:

(a) extraordinary circumstances;
(b) actions of the CRA;
(c) inability to pay or financial hardship; and
(d) other circumstances which do not fall into the above-enumerated categories.

There are a number of factual circumstances and factors which may warrant CRA to cancel or forgive interest or penalties. These are detailed in Information Circular IC07-1 (Taxpayer Relief Provisions) [4].

5. Remission Order

As a last-ditch effort, and when a taxpayer has exhausted all other avenues for relief, taxpayers can apply for a Remission Order to forgive or refund taxes, interest, penalties. A Remission Order is made under section 23 of the Financial Administration Act and is carried out by the Federal Government. The sort of matters a remission order may cover include:

• unintended results of the legislation;
• financial setback coupled with extenuating factors;
• incorrect action or advice by CRA officials; and
• extreme hardship.

Again, these tend to be fact specific reasons why relief should or should not be sought. If the taxpayer is unsuccessful they can seek judicial review of the decision in Federal Court.

In conclusion, there are a number of avenues for tax relief that a taxpayer should explore when dealing with an audit, tax assessment or tax debts. Although, depending on a taxpayer’s personal circumstances, the only realistic option might be to make an assignment into bankruptcy or a proposal under the provisions of the Bankruptcy and Insolvency Act. Even for strategic reasons, it may make sense to reduce a taxpayer’s tax liabilities as much as possible to allow the argument at the taxpayer’s bankruptcy discharge hearing that the bankruptcy is not strictly “tax driven”.

[1] ReAnh Thi Dinh, 2017 YKSC (Yukon Supreme Court) , at para 27 to 32 (link to decision: http://www.yukoncourts.ca/judgements/supreme/2007/2017_yksc_24_re_anh_thi_dinh.pdf)
[2] http://www.cra-arc.gc.ca/E/pub/tp/ic00-1r5/ic00-1r5-e.pdf
[3] http://www.cra-arc.gc.ca/E/pub/tp/ic00-1r5/ic00-1r5-e.pdf
[4] http://www.cra-arc.gc.ca/E/pbg/tf/rc4288/rc4288-16e.pdf