(This article uses the male gender pronoun, but it applies equally to female persons.)

 

1. BACKGROUND

 

In 1978, Ontario passed The Family Law Reform Act, 1978.  That Act greatly changed the law governing families in Ontario.  That Act, now called Family Law Act, has also affected other areas of law, including the law on Wills.

 

 

1. FAMILY LAW AFFECTING WILLS

 

1. Suppose a man drafted a Will, providing for his family after his death. Upon his death, his widow found out that he did not provide sufficient legacy for her in his Will.  What to do?  Within 6 months of her husband’s, the Testator’s, death, under Section 5 of the Family Law Act, the widow can file at the Estate Registrar for Ontario a completed Form 1 – electing to receive her share of the equalization payment (to equalize her assets with her deceased husband’s assets) under the Family Law Act.  Within that same 6 months, the widow further has to file at Court an application for an equalization of net family property at the Superior Court of Justice (Ontario) or (in 17 jurisdictions in Ontario) at the Unified Family Court (Ontario).  Once the Widow has applied for the equalization of her assets and her deceased husband’s assets, then she loses the legacy given to her under her husband’s Will.

 

2. Before the Widow jumps to sign and complete Form 1 – electing to receive her share of equalization payment, and rush to file it at the Estate Registrar for Ontario’s office, please check to make sure that she will not be receiving life insurance proceeds for the death of her husband. Because, Section 6(6)(a) of the Family Law Act states that any life insurance proceeds paid out to the widow for the death of her husband is counted as part of the assets of the widow for the calculation of the equalization payment.  So, if the widow obtain a large life insurance payout (e.g. $200,000) for the death of her husband, she may be better off taking the smaller legacy left to her under the Will (plus the $200,000 insurance policy payout) instead of applying to equalize her assets and her deceased husband’s assets.   

 

 

III.   MATRIMONIAL HOME

 

1. When husband and wife live in a matrimonial home, even if this home is owned by the husband alone, Section 19 of the Family Law Act states the both spouses have an equal right to the possession of this matrimonial home.

 

2. After the husband’s death, the widow no longer has a spouse, therefore her right to the possession of her matrimonial home has been terminated?

 

3. Section 26(2) of the Family Law Act states that, if the widow was occupying this matrimonial home at the time of her husband’s death, then she is entitled to retain possession of the matrimonial home against her deceased husband’s estate, rent free, for sixty days after her husband’s death.

 

 

1. TESTATOR’S OTHER DEPENDANTS:

 

1. Section 57(1) of the Succession Law Reform Act defines the word “dependant”:

 

(a)  the spouse (including common law spouse) of the deceased,

 

(Please note the definition of “spouse” in the Family Law Act Part III Support Obligations is different from the definition of “spouse” in the other parts of the Family Law Act.  The definition of “spouse” in the Succession Law Reform Act Part V Support of Dependants follows the definition of “spouse” in the Family Law Act Part III Support Obligations. Under this definition, the decease is capable of having more than one spouse at the same time – e.g. a married spouse and a common law spouse, at the same time.)

 

(b)  a parent of the deceased,

 

(c)   a child of the deceased, or

 

(d)  a brother or sister of the deceased,

 

to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

 

2. Section 58(1) of the Succession Law Reform Act states that if the testator has not made adequate provision for the proper support of his dependants or any of them, the dependant may apply to the Superior Court of Justice (Ontario) for the court to order proper support to be paid to the dependant out of the estate of the deceased.

 

3. Suppose the husband dies, and the executor of his Will wants to distribute his estate to the beneficiaries of that estate – then, a lady comes out of the woodwork with a small child, claiming that this child is the love child of the deceased husband – demanding that the executor of the estate pay support out of the estate to this love child!

 

4. At the time of drafting the Will, I ask the testator about all his dependants, and make adequate provisions in his Will to cover his obligations to all his dependants. But, if he does not mention his love child, then I cannot make provisions in his Will to provide support for this love child.

 

 

1. DOMESTIC CONTRACTS

 

1. Some of the above provisions may be modified by Domestic Contracts entered into by the husband and the wife while the husband was still alive. However, Domestic Contracts are complex – therefore, unfortunately, they cannot be properly discussed in this short article on How Ontario Family Law affects Ontario Wills.  They have to be the subject of another article dealing specifically with Domestic Contracts.

(This article uses the male gender pronoun, but it applies equally to female persons.)

 

1. Billings v. Mississauga (City) 2010 Ontario Superior Court and Billings v. Mississauga (City) 2011 Ontario Court of Appeal.

 

1. Ontario Tort Cases are prolonged: a tort case occurred in 2003 was only tried in 2010.

 

(So far, none of my slip/trip and fall cases are against municipalities.  All my slip/trip and fall cases have been settled.  You don’t have to wait for 7 years for your trial before you obtain a settlement for your slip/trip and fall case.)

 

2. On Monday, April 7, 2003, Mr. Billings decided to walk from his mother’s apartment to a local convenience store in Southern Mississauga to purchase a lottery ticket. At that time, the sidewalks in that neighbourhood were covered with ice from a winter storm which occurred in early April, 2003. Mr. Billings successfully arrived at the convenience store and bought his lottery ticket.  On that way back to his mother’s apartment, Mr. Billings suffered a devastating slip and fall.  (Mr. Billings worked in China. He was an executive in the Windo Law Firm, in Shenzhen, China.  Perhaps he should have stayed in China and bought his lottery ticket in China?)

 

3. Mr. Billings sued the City of Mississauga for his slip and fall. The trial of his case took place on May 13, 14, 17, 18, 19 and 20, 2010 in the Ontario Superior Court for the Regional Municipality of Peel (Regional Municipality of Peel included the City of Mississauga, the City of Brampton, and the Town of Caledon) in Brampton before The Honourable Justice C.N. Herold.

 

4. Surprise! Mr. Billings slipped and fell 50 hours after the winter storm had ceased in Mississauga.  The City of Mississauga still had not cleared the ice from the sidewalk upon which Mr. Billings walked, slipped, and fell; however, because municipalities could only be found liable for the pedestrians’ slip and fall on ice and snow on sidewalks if they were GROSSLY NEGLIGENT, Mr. Justice Herold found that the City of Mississauga was not grossly negligent, therefore Mr. Billings was awarded absolutely nothing.

 

5. Mr. Billings appealed against Mr. Justice Herold’s decision. Mr. Billing’s lawyer, at both the Ontario Superior Court and the Ontario Court Appeal, was Mr. Paul Cahill, an experienced Personal Injury Lawyer.  The Appeal was heard on March 29, 2011.  Oral decision and reasons of that decision were given that same day.  The three Justices of the Ontario Court of Appeal agreed with Mr. Justice Herold and found the City of Mississauga not liable to Mr. Billings.  Further, the Ontario Court of Appeal required Mr. Billings to pay $5,000 to the City of Mississauga for the costs of the Appeal.  Mr. Billings’ lawyer had $5,000 held in trust for Mr. Billings, and Mr. Billings’ lawyer undertook to take that $5,000 out of his trust account and pay that $5,000 directly to the City of Mississauga.

 

6. For this case, the City of Mississauga retained experience municipal/insurance defence lawyer, Mr. Scott E. Hamilton – for both the Ontario Superior Court trial and for the Ontario Court of Appeal appeal. The $5,000 costs at the Ontario Court of Appeal was just the tip of the iceberg:  a 7 day trial at the Ontario Superior Court with witnesses and expert witnesses and an experienced lawyer charging perhaps $600 per hour can cost $100,000 for this case.  Since Mr. Billings lost his case at trial (and at appeal), he had to pay to the City of Mississauga its costs to defend this case at trial.

 

7. Mr. Billings worked in Shenzhen. There are no ice and snow in Shenzhen.

 

 

 

1. ONTARIO HEALTH INSURANCE PLAN SUBROGATION

 

1. Ontario Permanent Residents are covered by the Ontario Health Insurance Plan (OHIP). After a slip/trip and fall accident, the injured claimant is usually cared for by a hospital and/or a medical doctor.  Instead of paying out of his own pocket, the injured claimant takes out his OHIP card, and charges his hospital/medical costs to his hospital/medical insurer – OHIP.

 

2. Motor Vehicle Accident: (I have also written an article on Motor Vehicle Accident Claims.  You can read this article on my website www.shenlawyer.ca.)

 

(a)  Under the Ontario Insurance Act, the Province of Ontario calculates the amount incurred by the Ministry of Health and Long-Term care (this Ministry operates OHIP) for motor vehicle accidents.  The Province of Ontario then assesses each insurance company that issues liability policies for motor vehicle accidents in Ontario, and each of those insurance companies has to pay the assessment against it to the Province of Ontario.  The Ontario Superintendent of Insurance has the power to suspend or cancel the insurance company’s licence to issue insurance policies in Ontario for failure to pay this assessment.

 

(b)  Because motor vehicle liability insurance companies have already paid their assessments which cover OHIP’s payments for hospital/medical treatment costs for injuries arising out of motor vehicle accidents, therefore, for an Ontario Permanent Resident to claim for injuries/damages arising out of a motor vehicle accident, he does not have to claim the treatment costs amount incurred by OHIP arising out of his motor vehicle accident in Ontario.

 

3. Slip/Trip and Fall Accident:

 

(a)  For the Province of Ontario, there is no Ministry of Health and Long-Term care assessment for issuance of non-motor vehicle liability policies insurance companies.  (The most common of the non-motor vehicle accident injuries is the slip/trip and fall accident injuries.)   The Province of Ontario is entitled to recoup the OHIP treatment costs for these injuries.  The Province of Ontario thus has instituted the OHIP Subrogation process.

 

(b)  Suppose a person slips and falls on a piece of slippery garbage on the floor in a Mall and breaks his wrist.  That person then retains me to claim/sue the Mall for negligence.  I then explain to this claimant that, on his behalf, I have to report his accident to OHIP, setting out what injuries he has suffered (broken wrist) and setting out his stays in hospitals and long-term care facilities, also setting out the medical care he has received so far, and what future medical care/hospital stay he may require because of the accident.   I further ask OHIP to provide to me a subrogation letter – setting out how much OHIP wants to be paid for the hospital, medical, diagnostic tests (X-ray, MRI etc.), and laboratory tests – treatment costs for this claimant (including future medical/hospital care costs).  This subrogation letter further appoints me (the claimant’s lawyer) to also represent OHIP for its subrogation claim.

 

(c)   I will further explain to this claimant that because all the medical doctors in Ontario are paid by the Province of Ontario, their fees are regulated by the province and these fees are usually reasonable.  However, hospital stay can cost $1,000 per day, and long-term care facility stay can cost $120 per day.  If the claimant has a long time stay in a hospital, the OHIP subrogation claim can be substantial.

 

(d)  OHIP subrogation always has to be paid first before the claimant receives his share of the settlement/award.  But if he has a high OHIP subrogation claim (e.g. $10,000 or more), he has to receive a high settlement/award from the Mall to make his claim worthwhile.  (Staying in the hospital for 10 days can cost $10,000 – but this is rare because the hospital usually discharges its patient as soon as possible – either discharges him back to his home or discharges him to a long-term care facility.)  At the time of the settlement, my legal fee for the client is calculated after deducting the usual disbursements.  The usual disbursements deducted include the costs of reports, searches, filing fees and office expenses, and the OHIP subrogation amount.  These disbursements are paid off the top.  (The Ministry of Health and Long-Term Care pays to me a legal fee of 15% of the OHIP subrogation amount it receives.  This OHIP subrogation amount fee is separate and distinct from the legal fee paid by my client to me.)

 

 

III.   SLIP/TRIP AND FALL

 

1. Slip/Trip and fall is a common occurrence in Ontario, especially in winter with snow and ice on the ground. A corollary of slip/trip and fall is something falling on one’s head (e.g. a sign falling down from the top shelf in a store).  Grocery store with wilted lettuce on the ground can cause slip and fall.  Icy parking lot and walkway outside a store can also cause slip and fall.  In the springtime, snow and ice melt, underneath the snow and ice are cracks and potholes in the concrete (formed by water sipping into minute cracks in the cement and expanding when that water freezes, forming the larger cracks and potholes) – waiting for the pedestrians to trip and fall on these cracks and potholes.  The parking lots and walkways have to be well lit in the evenings.  If not well-lit, pedestrians cannot see the cracks and potholes and trip over them, then claim against the owners/occupiers of the parking lot/walkway.

 

2. Against whom do you claim? (In Motor Vehicle Accidents, in addition to claiming against the driver/owner of the other car that hit you or your car, the injured can also claim Accident Benefits.  There are no accident benefits in Slip/Trip and fall – you can only claim against the tortfeasor (the party who caused the accident).

 

(a)  Land owner:  In Ontario, you can search for the owner of a piece of land through searching in the Land Registry – either by attending at the Land Registry office of the county/region in which the land is located or search online.

 

(b)  Primary tenant of that land:  the land owner may have leased that land to a major tenant (e.g. the owner of a Mall/Plaza).  E.g. if you slip and fall in a Plaza, you may want to claim against the owner of the Plaza, who is the primary tenant of that land – because the owner of the land may not have done anything which caused your accident.  Often, the owner of the Plaza is a numbered company.  You then have to do a corporation search to find out the names and addresses of the Directors and Officers of that numbered company, and send your Claim Notice to a Director or Officer of that corporation.

 

(c)   Secondary tenant of that land:  The owner of the Mall/Plaza sublets parts of the Plaza to various shops – e.g. a grocery store.  If you slip and fall inside a grocery store, you sue the grocery store instead of the owner of the Plaza – because the owner of the Plaza may not have done anything which caused your accident.  Again, the grocery store may be owned by another numbered company.  Again, you do a corporation search to find the names and addresses of the Directors and Officers of that other numbered company and send your Claim Notice to a Director or Officer of that other numbered company.

 

(d)  Maintenance/Snow removal companies:  The party against whom you claim may give to you the name and address of a maintenance/snow removal company whom it claims is responsible to maintain the land and/or to remove the snow and ice on the land. Under the Ontario’s Occupier’s Liability Act, the party which occupies/controls the land has the duty of care to ensure that persons entering the land or while present in the land are reasonably safe.  Hiring someone else to maintain/remove ice and snow does not absolve the occupier its duty of care responsibility.  So, now you claim against both the occupier of the land and the maintenance company that has the contract/responsibility of maintaining the land and/or remove the snow and ice from the land.  (Suppose my client tripped and fell on a pothole in a Plaza, and the Plaza owner gave to me the name and address of a snow removal company that was responsible to remove the snow and ice from that Plaza.  But, on the day of my client’s trip and fall, there was no ice or snow on the ground of that Plaza.  Both the Plaza owner’s insurance company and the snow removal company’s insurance company contacted me.  I explained to both insurance companies that there was no ice or snow on the ground of the Plaza on the day of the accident.  I then settled with the insurance company of the Plaza owner.)

 

3. Limitation periods for Slip/Trip and fall lawsuits: In most circumstances, the law requires that you file your lawsuit for a slip/trip and fall Statement of Claim at an Ontario Court within 2 years of the accident.  There are additional Notice requirement if you claim against a municipality or against the government of Ontario or government of Canada.

 

4. What can be claimed?

 

(a)  Pain and suffering;

 

(b)  past and future loss of income;

 

(c)   medical/rehabilitation expenses:  medicines, physiotherapy, massage therapy, chiropractic therapy, wheelchair, Tens machine (to alleviate pain) etc.  (An extreme example would be remodelling your bathroom or your house to accommodate your injury/disability arising from your slip/trip and fall.);

 

(d)  housekeeping costs (you pay someone to do your housework for you because your injury prevents you from doing housework – both housework inside the house and gardening outside of the house.  e.g. apart from the usual cutting grass and clearing snow, you have a Japanese garden – you are unable to do the gardening after the accident, and you pay a gardener to do the gardening for you in your Japanese garden. You then claim the cost of the gardener who gardens for you in your Japanese garden); and

 

(e)  miscellaneous expenses:  e.g. Your injury from your accident prevents you from driving.  You take a taxi to travel from your home to the physiotherapy clinic, then take another taxi to travel from the physiotherapy clinic back to your home.  You claim the cost of those taxis.

 

(Because all these processes required before you can commence your claim and the loss items you can claim for may change, you should consult a Personal Injury Lawyer before you commence your claim process.)

 

 

1. SPECIAL TORTFEASORS

 

1. There are special tortfeasors against whom you are not allowed to claim slip/trip and fall injury damages unless you give to them proper notices at proper times.

 

2. Municipalities:

 

(a)  Section 44(9) of the Ontario Municipal Act states the following:

 

“44(9)    Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk.”

 

(b)  The key words in that subsection are:  “gross negligence”, “municipality” “snow or ice”, and “sidewalk”.

 

(c)   To sue the municipality, a Notice about the accident must be served on the municipality within 10 days of the accident.  Further, a Statement of Claim has to be filed at an Ontario Court within 2 years of the accident (same as any other slip/trip and fall cases).  Because the Notice requirement may change, you should consult a Personal Injury Lawyer before you serve your Notice.  The 2 year filing limitation period has existed for many years; however, it is always prudent to check this filing limitation period as soon as possible.

 

3. Province of Ontario:

 

(a)  Province of Ontario is a property owner.  A pedestrian can slip/trip and fall on a Province of Ontario owned property.

 

(b)  The Province of Ontario owns properties in Ontario.  It also owns some provincial highways.  To sue the Province of Ontario for a slip/trip and fall, you not only have to give the 10 day Notice to the Province, but also have to wait for 60 days after the service of the Notice before you can file your Statement of Claim at an Ontario Court against the Ontario Provincial Government.  Also, you have to file your Statement of Claim at an Ontario Court within 2 years of the date of the accident.  (Again, these Notice and filing requirements can change, so you should consult a Personal Injury Lawyer as soon as possible after your accident.)

 

4. Canada:

 

Slip/trip and fall claims against the Canadian Government is complex.  I am leaving this topic to another article to explain the process to pursue a slip/trip and fall claim against the Canadian government.

 

(This article uses the male gender pronoun, but it applies equally to female persons.)

 

1. BACKGROUND

 

When you go to your financial institution to apply for a mortgage, or to invest your money, your mortgage specialist or your financial adviser will ask you to make a Will.  In the case of your passing/death, your Will will appoint your executor and name your beneficiary/beneficiaries.  Your financial institution will then deal with your executor and/or your beneficiary/beneficiaries, as the case requires.

 

A Will is a document to dispose of your assets after your death.  The testator of the Will has to be of Adult/majority age (18 years old in Ontario) and of sound mind.  It is not meant for you to cheat your 65 years old wife or to cheat your 13 years old daughter out of your assets – so that you can leave your nest egg to your 18 year old girlfriend after your death.  An Executor of your Will (adult age) has to execute (dispose of your assets) in accordance with your Will’s instructions after your death.  Do NOT name your (never did an honest day’s work) beer buddy or your ne’er do well nephew to be the executor of your Will.  Usually, the testator also names an alternate executor of the Will – in case the first named executor is unable or unwilling to act upon the death of the testator, then the alternate executor can act as the executor of the Will.

 

1. In Canada, Wills are under the jurisdiction of Provinces/Territories.

 

2. Most Wills do not require probate.  However, sometimes there is a dispute amongst the beneficiaries of the Will, or the holders of the testators’ assets (usually financial institutions or corporations) require a probate of the Will before they allow the transfer of the testators’ assets to the beneficiaries under the Will, then the probate of the Will will be required.  In Ontario, Wills are probated (approved) by the Superior Court of Ontario.  In jurisdictions which follow the English Common Law (Ontario is one of those jurisdictions), you have to probate a Will in the deceased’s domicile (permanent residence) province at the time of his/her death. If, however, the deceased owned real property in another province/country (other than his/her domicile province), the Will disposing of these assets must also be probated in that province/country.

 

3. Ordinarily, for most Ontarians of modest means, a Will is a simple thing.  You can even download a standard form Will from a website and execute (follow the procedure to make the will valid) that form Will.  Usually, the standard Will leaves everything to the spouse, and upon the death of the spouse, leaves everything to the deceased’s children.  Sometimes, you also leave a small gift to another relative/friend or to a charity.

 

4. Since Ontario Wills are so simple, why should I write this article about Ontario Wills?  I am writing this article for a Chinese language newspaper.  Most of the readers of that newspaper are Immigrants:  from China, Hong Kong, Taiwan, Singapore, Malaysia, Vietnam and others.  For these immigrants, the standard Ontario Will may not be sufficient.

 

5. There was a Diplomatic Conference on Wills in Washington, D.C. on 16-26 October, 1973.  The result of that Conference was the drafting of an International Will. The Convention Providing a Uniform Law on the Form of an International Will was completed on October 26, 1973.  21 countries (including subdivisions of those countries) either have signed the Convention or have consented to be bound by that Convention.  Most of the Canadian Provinces, including Ontario, have consented to be bound by this International Will.  In ethnic Chinese majority countries, neither the People’s Republic of China, nor Hong Kong, nor Singapore has signed or consented to be bound by the International Will.  (The Republic of China (Taiwan) signed this International Will Convention on October 27, 1973, and consented to be bound by this Convention as of January 1, 1979; however, the United States of America does not recognize the government of the Republic of China/Taiwan, therefore the United States does not recognize Taiwan’s signature on this Convention or Taiwan’s Consent to be bound by this International Will Convention.)

 

 

 

1. MULTIPLE WILLS

 

1. Unfortunately, the International Will is not successful – at least not in ethnic Chinese majority countries/jurisdictions.  In this paper, we are dealing with a testator who owns assets in more than just Ontario.

 

2. In Ontario, there are two types of Multiple Wills:

 

(a) To probate a Will in Ontario, the executor of the deceased’s estate has to pay an estate administration tax (probate fee) depending on the monetary value of that estate.  Probate fees change from time to time, but Ontario has the highest probate fee in Canada – highest marginal rate of this probate fee is $15 per $1,000 versus $7 per $1,000 for other provinces/territories.  Previously, the probate fee was paid to the Superior Court; however, as of January 1, 2015, upon the death of the testator, the executor of the estate applies for a Certificate of Appointment from the Ontario Superior Court, and, within 90 calendar days after the issuance of this Certificate of Appointment, the executor of the estate has to file an Estate Information Return to the Ontario Ministry of Finance, and pay the estate administration tax (probate fee) to the Ontario Minister of Finance. (If the executor files an incorrect return, he must correct it promptly and pay more tax, if required.  If the executor files a false return, he is subject to fine or imprisonment.)

 

(b) To reduce estate administration tax (probate fee), a testator drafts 2 Wills – Private Assets Will (which will not be probated) and a Public Assets Will (which will be probated).  (Please note that in the 2007 Supreme Court of Canada case Pecore v. Pecore, the Supreme Court of Canada held that, for a parent to put title to assets owned by the parent into join names of the parent and one or more adult children, such assets are presumed to be held upon resulting trust for the estate of the deceased parent.)  This paper does NOT deal with Multiple Wills to reduce estate administration tax.

 

(c) The testator wants to devolve/transmit his estate located in more than just Ontario to his beneficiaries.  We then create for the testator one Will for all his Real Estate assets located in Ontario, plus most of his personal assets, and another Will for all his Real Estate assets in another jurisdiction, plus his personal assets associated with those Real Estate assets (e.g. furniture in a house) in that jurisdiction (China, Hong Kong, Taiwan, Singapore).

 

(d) The foreign Will should include the testator’s Real Estate in that jurisdiction plus personal property associated with that Real Estate (e.g. furniture in your house in China).  Your Rolex watch and your diamond ring are best included in your Ontario Will – even if you wear your Rolex watch and your diamond ring to China.  Without claiming any expertise in the drafting of Wills in these jurisdictions, here I am merely setting out my first impression on the drafting of Wills in the following Jurisdictions:

 

(i) Hong Kong, Singapore, Malaysia:  These were previously British Colonies.  Their laws of Wills are similar to Ontario’s.  (Be careful that the age of majority in some of these jurisdictions may be different from Ontario’s – e.g. age of majority at 21 years of age.)

 

(ii) Republic of China/Taiwan, China:  Taiwan has adopted much of the German Civil Code.  In China, an individual does not OWN the land, but he owns the USE of that land, plus the structures on that land – for a stated time period.  The Chinese lawyer drafting the Chinese Will has to take all these limitations into consideration.

 

(iii) Vietnam:  Vietnam was a French Colony.  Vietnam does not recognise a Vietnamese Will unless the testator is a Permanent Resident of Vietnam.  Whether a person who lives 6 months in Ontario and 6 months in Vietnam qualifies as a Permanent Resident of Vietnam, I leave it to a Vietnamese lawyer to sort out.

 

(iv) Brazil:  Brazil courts have a monopoly to deal with land in Brazil.  A Brazilian Will dealing with land in Brazil is most appropriate.  (If the testator has a Brazilian spouse and Brazilian children, then the succession of the testator’s assets in Brazil is governed by the Brazilian law, for the benefit of these Brazilian spouse and children.)

 

3. The testator can also incorporate an Ontario/Canadian/foreign corporation, fold his assets into his corporation, and then devolve/transmit his whole world assets to his beneficiaries by devolving/transmitting his shares in his corporation to his beneficiaries.  But these incorporation instructions should come from the testator’s financial advisor.  Usually, the testator’s lawyer merely drafts the testator’s Will.

 

 

III. EXECUTION OF THE ONTARIO WILL

 

1. I no longer act as a witness for the execution of an Ontario Will.  The testator has to bring 2 witnesses to the execution of his Will.  The Witnesses must be adults and may NOT be beneficiaries under the Will (also they may NOT be the spouses of beneficiaries/possible beneficiaries under the Will (e.g. a daughter-in-law of the testator)).

 

2. I first explain the contents of the Will to the testator (either in English or in Chinese).  Upon the testator agreeing to the contents of the Will, then the testator signs the Will, and initials each page of the Will.  Then the witnesses sign the Will, and initial each page of the Will.  If I have explained the contents of the Will to the testator in Chinese, then I will add a paragraph at the bottom of the Will, stating the following:

 

“I, Peter M. Shen, am fluent in both the English and the Chinese languages.  I have interpreted/translated to the Testator, ___________, the complete contents of the above Will from the English language to the Chinese language, and the Testator, _____________, has told me that he completely understands my interpretation/translation, and he completely agrees with the contents of this Will.”

 

I then sign at the bottom of this paragraph as the interpreter/translator of this Will.

 

3. I then prepare a document called the Affidavit of Execution of the Will, in the name of one of the witnesses.  That witness then signs this Affidavit, then I also sign this Affidavit as a Commissioner for Taking Affidavits.  In that Affidavit, it states that the named witness was present and saw the original of the Will (marked as Exhibit “A”) executed by the testator in the presence of the named witness and the other (insert name of the other witness) witness.  I then stamp the back of the original Will with a stamp stating the following:

 

“This is Exhibit “A” to the Affidavit of (insert the name of the named witness) sworn or affirmed before me, this_____ day of ________________, 20_____.”

 

I then sign under that stamp as Commissioner for Taking Affidavits.  I then give both the original Will and the original Affidavit to the testator, leaving only a copy of the Will and a copy of the Affidavit for my file.

 

4. The Government of Ontario has asked us lawyers who draft Wills to also draft “Living Wills” for our clients.  The “Living Will” contains Power of Attorney for Personal Care and Power of Attorney for Property.  But that is the subject for another article.

 

 

 

 

I. BACKGROUND

1. In Canada, 2 federal departments govern immigration:

(a) Immigration, Refugee and Citizenship Canada (IRCC), previously Citizenship and Immigration Canada (CIC); and

(b) Canada Border Services Agency (CBSA) (CBSA was a merger of the old CIC enforcement division and Canada Customs.) (I was a Canadian Customs officer for 2 summers. We wore gold coloured shirts – very flashy.)

2. IRCC stocks Visa Offices (also known as “Visa Posts”) within Canada’s embassies, high commissions and consulates with IRCC officers (who are then called “Visa Officers”). These Visa Officers approve Visa Applications and issue Visas. Now they also approve eTA applications and issue Canadian eTAs. CBSA stocks Canada’s Border Posts (including Canada’s Airports) with CBSA officers to examine travellers entering Canada and also to examine the goods these travellers bring into Canada. Border Posts also examine US and Mexican citizens entering Canada for a purpose set out under the North American Free Trade Agreement (NAFTA) without a Canadian Visa issued by a Visa Post (US and Mexican citizens are allowed to do this under NAFTA. Mexican citizens still need a visa to visit Canada before December 1, 2016, however, under NAFTA, Mexican citizens are allowed to apply for a Canadian Visa at a border post, instead of at a Visa post.).

3. After the 9/11 2001 attack on USA, as part of the security improvement, USA set
up the Electronic System for Travel Authorization (ESTA) requirement: it requires
citizens from Visa Waive (Visa exempt) countries to apply for and obtain ESTAs before
they are allowed to enter USA. Subsequently, Airlines require passengers bound for
USA to obtain their ESTAs before they are allowed to board the Airlines’ airplanes.

4. On February 4, 2011, the Prime Minister of Canada and the President of the
United States issued Beyond the Border: A Shared Vision for Perimeter Security and
Economic Competitiveness. This Declaration established a new long-term partnership
built upon a perimeter approach to security and economic competitiveness. The
Canadian eTA has been set up as the security part of the above-stated Declaration.

II. Canadian eTA

Beginning on March 15, 2016, if you travel to Canada (by air only), even if you do not require a Visa to enter Canada, you may still need a Canadian Electronic Travel Authorization (eTA) to enter Canada. The latest word from the Canada Border Services Agency (CBSA) which enforces the eTA requirement is that they will enforce the eTA
requirement as of November 10, 2016. I am only dealing with the eTA requirement to enter into Canada in this article. If you wish to change airplane in Canada to fly to another country, or if you wish to transit through Canada, there may be different requirements which I do not deal with in this article.

1. Citizens of the following countries (territories) who need an eTA to enter Canada (by air only):

This article is written for a Chinese language newspaper, therefore it is aimed at an ethnic Chinese population. The following countries (territories) contain a majority ethnic Chinese population. The citizens of these countries (territories) require an eTA to enter Canada (by air only):

Republic of Singapore

Hong Kong Special Administrative Region (for both holders of HKSAR passports and holders of UK British National (overseas) passports)

Taiwan (except holders of Taiwanese passports which do not include their personal identification numbers)

2. For People’s Republic of China citizens and for Taiwanese passport holders whose passports do not include their personal identification numbers:

You need a Visa to enter Canada (by air or by any other means). But when you already have obtained a Visa to enter Canada, then you are exempted from the eTA requirement. Canadian citizens and Canadian Permanent Residents have an automatic right to enter Canada, therefore they are exempted from both the Visa requirement and the eTA requirement.

3. Applying for the eTA:

You can apply for the eTA on line. You go to the IRCC website www.cic.gc.ca/english/visit/eta-start.asp and complete the application online. You also have to pay $Can 7 by credit card online. Once approved, you will receive your eTA through your email address. Print off your eTA and bring it with you to the airport to travel to Canada. (The IRCC claims that your eTA is electronically linked to your passport. When you check in at your departing airport, the document reader at that airport that reads your passport will automatically pick up your eTA. However, to be on the safe side, you should bring both your printed eTA and your passport with you when you go to your departing airport.) Your eTA is valid during the validity of your passport that you have used to apply for your eTA, up to a maximum of 5 years. If you renew your passport, you also need to renew your eTA.

III. LATEST CANADIAN IMMIGRATION NEWS

1. Starting early next year, immigrants sponsored by their Canadian spouses won’t be required to stay in a relationship for two years in order to keep their permanent resident status in the country.

2. Canada’s new program that allows immigrants to voluntarily give up their permanent resident status for various reasons has been a resounding success, despite a lack of any publicity. (Canadian permanent residents giving up their permanent resident status for 2015 and for the first half of 2016 include 3,116 Chinese citizens, 669 Taiwan citizens and 186 Hong Kong citizens.)

If you are involved in a Motor Vehicle Accident in Ontario, you may be able to claim the following benefits:

I.     SABS benefits (Statutory Accident Benefits – also known as No-fault benefits)

1.  You claim SABS benefits from your own insurance company, whether you are at fault or not at the accident.  If you are not at fault at the accident, claiming SABS benefits should not increase your insurance premium.  You notify your own insurance company as soon as possible after the accident, and your own insurance company will send to you an application package, which includes an OCF-1 (application for accident benefits form which you should complete and send to your own insurance company as soon as possible).
2. If you are working at the time of the accident, or have worked for 26 weeks within 1 year of the  accident, you and your employer together can complete an OCF-2 form, which is an application for income replacement (replacement of the income you have lost because of the accident).  You also need an OCF-3 form completed by a medical practitioner.  Unfortunately, unless you have bought extra insurance, the income replacement benefits is 70% of your gross income, up to a maximum payment of Income Replacement benefit of $400 per week.  At least this $400 per week payment is not taxable under the Canadian Income Tax Act.  (Sometimes, for a serious injury prohibiting the injured person from carrying on a normal life, and the injured person does not have any work record to apply for Income Replacement benefits, the injured person can apply for “non-earner’s benefits” which is $185 per week.  The non-earner’s benefits only lasts for 104 weeks after the accident).  Your OCF-3 completed by a medical practitioner should indicate that you are disabled from doing your normal job.  However, 104 weeks after the accident, to continue to receive Income Replacement benefits, you now have to satisfy a different test – your OCF-3 now has to indicate that you are unable to do any job for which you are suited (e.g. if you are an accountant, you are now unable to do any accounting job, not just your previous accounting job).  If you are continuously disabled, you will continue to receive Income Replacement benefits until age 65, and at that point the amount is reduced on a gradual basis.
3. The other most common accident benefit is Medical and Rehabilitation benefits (physiotherapy, massage therapy, acupuncture, and other form of therapy).  The proposed therapist applies to your insurance company for the therapy for you, using OCF-18 (Treatment and Assessment Plan) form.  Your own insurance company will then decide whether to approve or reject this OCF-18.  If the OCF-18 is accepted, then your therapist will apply the therapy on you, at the insurance company’s expense.  For injuries classified as MIG (under the Minor Injury Guideline), the maximum therapy benefit is $3,500.  For non-MIG, the maximum combined Medical & Rehabilitation benefit & Attendant Care benefit period is 5 years.
4. There are other SABS benefits:  Attendance Care benefit (after the accident, the injured person has to be cared by a caregiver).  There are also catastrophic benefits.  Catastrophic benefits are only given to the most severely injured people.

II.     TORT claim

1. To claim tort compensation from the opposing driver/owner, the plaintiff has to prove the following:

(a)  The other driver/owner is at least partly responsible for the accident; and

          (b)  To claim pain and suffering, the plaintiff has to prove that he has suffered “a    permanent and serious impairment of an important bodily function that is physical, mental or psychological in nature.”  Further, for this pain and suffering claim, the plaintiff has to obtain a monetary judgment of over $36,905.40 (threshold – which is indexed to inflation every year). (Also, for pain and suffering, if the court awards the plaintiff $123,016.99 (also index to inflation every year) or less, then $36,905.40 has to be deducted from that award.)  This is a very serious matter.  In a Hamilton tort case, the plaintiff was awarded by the jury exactly $30,000 for pain and suffering.  $30,000 award minus $30,000 (threshold at that time) = $0.  The judge of that case then not only not award the plaintiff a single cent, but awarded the defendant $100,000 costs – because the plaintiff did not win his case.  Not too many plaintiffs can afford to pay $100,000 costs to the defendant or to anyone else.

           (c)  Non pain and suffering damages.  Sometimes non pain and suffering damages can be substantial.  Loss of wages/Loss of competitive advantage can be substantial.  Further, if a plaintiff owns a large residential property and he has to hire a gardener/housekeeper to take care of his property after the accident, that claim can also be substantial.

     2.  Unlike accident benefits, apart from having to file a statement of claim at the court within 2 years of the accident, and serve that statement of claim on the defendant(s) within 6 months of the filing of the statement of claim, tort claim has no time limit.  A young person injured at 15 years old, can claim damages until he is 79 years old (life expectancy for a Canadian male person).  For an older plaintiff, he has educational and work record, and future earnings can be calculated with some accuracy.  A young person injured at 15 years old, while an honour student at school, has limited educational record and has no work record.  Calculating his future earnings can be difficult.

      3.  In 2016, the Ontario government has further reduced SABS benefits.  The Tort benefits have become even more important.  For pain and suffering claim, the plaintiff has to prove his case by being examined by medical doctors, especially by medical specialists.  The plaintiff’s medical doctor/medical specialists have to write for the plaintiff convincing medical/legal reports to convince the adjuster, opposing counsel, and if necessary, judge and jury, that the plaintiff’s injuries are permanent and serious impairment of an important bodily function, and that pain and suffering award exceeds $36,905.40.  (The plaintiff can also obtain pain and suffering benefit by suffering a serious and permanent disfigurement – e.g. a young female plaintiff has suffered extensive scarring on her face from her Motor Vehicle Accident.)

III.  MY LEGAL FEES

 1.   No fee until we win.

2.    My fee is 25% if we settle before discovery or before settlement conference for cases filed at Small Claims Court.  My fee is 1/3 if we settle at or after discovery or at or after settlement conference for cases filed at Small Claims Court.

3.     Because insurance company often pay costs around 10 – 15%, the net cost to you for my fee is around 10% or 18 1/3%.