Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, reviewing, interpreting or resolving disputes concerning partnership and limited partnership agreements, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario business lawyers registered on the website who can answer your questions or help you with your partnership and limited partnership agreements.  I should know – I’m one of them and you can contact me directly.

This is the 6th blog I’ve written about limited partnerships.  In this blog, I’ll be talking more about Ontario limited partners, who they are, what their rights are, and how they can transfer their interest.  Be sure to read up on the first 5 sets of blogs about limited partnerships, which included gold nuggets on limited partnerships generally, limited partnerships as separate legal entities, securities and tax implications, how limited partners could lose their limited liability status, etc.

Who is a Limited Partner?
First, an Ontario limited partner is one of two types of partners required to form a “limited partnership” under the Ontario Limited Partnerships Act.  The other type of partner is called a general partner.  Unlike a general partner, a limited partner’s liability is limited up to their contribution (a general partner’s liability is unlimited).

What is a Limited Partnership?
A limited partnership is a statutory vehicle.  Granted, it is a partnership (i.e. two or more people carrying on business together with a view to a profit).  But it is governed by the Act and any limited partnership agreement (just as a general partnership would be governed by the Ontario Partnerships Act and any partnership agreement).  And to be a limited partner in a limited partnership, you must deliberately file a Declaration and pay a fee (e.g. $210 in Ontario) to create a limited partnership.  So you can’t accidentally have a limited partnership.  And you can’t assume you are a limited partner with limited liability without first achieving that status under the Act.

Rights
So with that now said and done, we move on to the rights of limited partners.  Essentially, they have a number of rights under the Ontario Limited Partnerships Act, including:

• the right to inspect and copy the books of the limited partnership (s. 10(a)):
• the right to be given a complete and formal account of the limited partnership’s affairs (s. 10(b));
• the right to obtain dissolution of the limited partnership by court order (s. 10(c));
• the right to share in the profits and other compensation of the partnership (s. 11(1)(a)), subject to other provisions of the Act;
• the right to have their initial contribution returned (s. 11(1)(b)), subject to other provisions of the Act;
• the right to examine the “state and progress” of the limited partnership business and advise as to its management (s.12(2)(a));
• the right to act as a contractor for or an agent or employee of the limited partnership or of a general partner (s.12(2)(b));
• the right to act as a surety for the limited partnership (s.12(2)(c)).

Contribution
The biggest distinguishing factor in being a limited partner is that generally your liability exposure is limited to your contribution.  What is their contribution, then?  Well, it’s not services.  It must be money, property or both: s. 7(1).  Just like with the “Stated Capital” of a corporation, the limited partner’s contribution must be recorded in the limited partnership’s books.  For those who don’t know, the “Stated Capital” is a simple document that shows, with respect to a corporation, who its shareholders are, how much they’ve given the corporation for their shares, the number and class of shares they own, etc.  You get the point.  But what’s important to note about the limited partner’s contribution to the limited partnership is that ANY PERSON has the right, under the Act, to inspect the records of the limited partnership at the registered head office (or the limited partnership’s attorney’s office) during normal business hours AND may make copies of and take extracts!  Failure to comply could constitute an offence under the act and be punishable on conviction to a fine of up to $2,000 (for an individual) or $20,000 (for a corporation).

Transferring their Interest
The Act says (at s. 18(1)) that a limited partner’s interest is assignable.  Well, that’s a good thing.  But there’s an important caveat: is the limited partner a “substitute partner”?  If no, then the assignee (the person acquiring the limited partner’s interest) will ONLY be entitled to receive the assignor’s (the limited partner) contribution to the limited partnership and share of the profits or other compensation.    OUCH!  What about rights to inspect the limited partnership’s records and books or be given information or account about matters affecting the limited partnership?  Nope.  Sorry.  No rights there!  So says s. 18(3) of the Act.

So what is a “substitute partner” and what kinds of rights and duties, etc. do they enjoy after receiving or being assigned the interest of the limited partner?  Well, a “substitute partner” is an assignee who either receives permission from all the other partners in writing to be a “substitute partner” or who is designated by the assignor (i.e. the limited partner) under the authority of the limited partnership agreement.

OK, so what happens when an assignee becomes a “substitute partner”?  Well, essentially they have all the rights and powers and are subject to the same restrictions, duties, obligations, etc. as the limited partner who assigned their interest.  There are a few points worth mentioning here.  First, the “substitute partner” will not inherit or be subject to the liabilities of the limited partner which weren’t known at the time the limited partner became a limited partner and which could not be ascertained from the partnership agreement, the declaration or the record of limited partners.  Second, the assignor (limited partner) will not, even in assigning their interest, be relieved of their obligation to pay for any difference between their actual and recorded capital contribution (s. 16 of the Act and s. 18(7)).  Furthermore, the assignor (limited partner) will not, in assigning their interest, be relieved of liability arising from false or misleading statements in the partnership record that they were aware of but did not take steps to correct (s. 30 and s. 18(7)).

Look, I know this stuff gets confusing – particularly if you’re not a lawyer – so if you want to talk with a lawyer about limited partnerships, being a limited or general partner, setting up or dissolving a limited partnership, etc., then make a post on Dynamic Lawyers or contact me directly.

written by admin \\ tags: limited partnership, limited partnership agreements, limited partnerships, partner status, professional assistance, securities laws, separate legal entity, tax purposes

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to making a Will or what to do where a person dies without a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

So what happens if someone who lives in Ontario dies without a Will?

Please keep in mind that a Power of Attorney and a Living Will have no relevance or bearing at this point because the person is dead (they only apply when the person is alive).

Basically, in Ontario, an application is made in the court office for the area (e.g. county, district, region, or metropolitan municipality) in which the deceased resided at the date of death. In Toronto, the appropriate court is the Estates Court office located at 393 University Avenue, 10th floor, 416-326-4230 (otherwise, you make an application to the Ontario Superior Court of Justice).

Applications for Certificates of Appointment of Estate Trustee are processed by Ministry of the Attorney General court staff.   They perform the duties of an estate registrar in the Civil Office of the Superior Court of Justice. These duties are prescribed by law. Staff must review each application to confirm that the application and all accompanying documents are complete and comply with the Rules of Civil Procedure (the rules of court) and other applicable legislation.

Section 74.05 of those Rules require that an Application for a Certificate of Appointment of Estate Trustee (Form 74.14 or 74.15) be accompanied by:

1. An affidavit (Form 74.16) attesting that notice of the application (Form 74.17) has been served on all persons entitled to share in the distribution of the estate (including special ways to serve minors under 18 years old and mentally incapable persons).
2. A renunciation (Form 74.18) from every person who is entitled in priority to be named as estate trustee and who has not joined in the application;
3. A consent to the applicant’s appointment (Form 74.19) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
4. The security required by the Estates Act; and
5. Any other additional material which the court may direct.

You should definitely consult with a lawyer about getting these and other necessary documents properly drafted and filed.  These forms can be found here.

If court staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application.

The Ministry strives to process certificates of appointment of estate trustee with or without a will within 15 days after the application and accompanying materials are complete and judicial direction, if required, has been obtained.

If a Certificate of Appointment of Estate Trustee Without a Will is issued, it will be in Form 74.20 (as per the Rules).

If you want to read more about priorities of beneficiaries in cases where a person dies in Ontario without a Will (thereby triggering the rules in the Succession Law Reform Act), check out my previous blog on that topic.

To avoid headache and delay, be sure to consult with a lawyer about applying for a certificate of appointment of estate trustee.

written by admin \\ tags: affidavit form, applicable legislation, certificate of appointment, certificate of appointment of estate trustee, incapable persons, legislation section, ministry of the attorney general, ontario lawyers, ontario superior court, ontario superior court of justice, professional assistance, rules of civil procedure, section 74, superior court of justice

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

Ok, so here it is: who is a “parent” for the purposes of paying child support in Ontario under the Family Law Act?  Does it only mean the biological parent?  How about a parent who formally adopts a child?  What about the boyfriend/girlfriend of a child’s biological or adoptive parent?…

Essentially, in Ontario, a “parent” for the purposes of child support obligations under the Family Law Act includes a  child’s biological father or mother and any other person “who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody”.  Lets take a look at a number of previous Ontario court cases that dealt with this latter issue, shall we?  Remember: the Ontario Family Law Act applies in cases where the parents are not or were not married; if they are or were married, then the Federal Divorce Act would apply, not the Ontario Family Law Act.  So please keep that in mind as you read on!

In Baldwin v. Timmermans, (sub nom. C.M.B.B. v. T.J.T.), 18 O.T.C. 174, the Ontario Court of Justice – General Division was faced with an interim child support request (the fact that it was an interim matter means that child support was being asked to be provided prior to the actual trial).  The facts are fairly straightforward.  A man was asked by a woman to provide support to her child.  The man and the child’s mother never married but had lived together.  The man argued that he was not responsible for supporting the child, saying that he never acted as a parent and that he actually had a rough relationship with the child.  The Court disagreed and ordered the man to pay child support on an interim basis.  Perkins J. reasoned that the child’s mother had pointed to “objective evidence establishing that a subjective intention existed” on the part of the man to treat her child as a child of his family.  The mother had pointed, through her affidavits, to objective evidence of direct financial support to or for the benefit of her child as well as to the mother for the benefit of the family unit generally.  In addition, the man had signed a written document called “My Personal Commitments” which committed the man to (among other things) love and support the child.  Perkins J. held that the mother had made out a prima facie (on its face) case for child support by pointing to credible evidence which would entitle her to succeed at trial.

In Lebeck v. Laurin, [2005] W.D.F.L. 680, the Ontario Superior Court of Justice commented that various factors set out in Chartier v. Chartier (1999) 43 R.F.L (4th) 1 (S.C.C.) were useful, though not determinative, in deciding whether a person had a settled intention to treat a child as a child of his or her family.  Those factors include, but are not limited to:

• whether the child participates in the extended family in the same way as would a biological child;
  
• whether the person provides financially for the child (depending upon ability to pay);
  
• whether the person disciplines the child as a parent;
  
• whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as apparent to the child;  and
  
• the nature or existence of the child’s relationship with the absent biological parent.

In that case, Wood J. found that a man was liable to child support to the children of his wife and another man on the basis that (among other things): he paid for many of the children’s expenses, transported them to games and activities, was an assistant coach of teams upon which the children played, and wrote letters indicating that he was interested in the children’s welfare.  It was interesting to note that, although there was evidence that man was scrupulous in protecting the role the children’s biological father played, the man had still exhibited a settled intention to treat the children as children of his family within the meaning of the Act.

Finally, in Land v. Aitchison, 2005 CarswellOnt 372, the Ontario Superior Court of Justice found that a man was liable to pay interim child support to children who were born out of a previous marriage from a woman with whom the man had  cohabited.  Pedlar J. pointed to “independent evidence” that demonstrated a prima facie case on the issue of child support such as:

• The man referred to the girls as “my daughters” or “my girls”;
• The man participated in the girls’ extra curricular activities, including coaching a baseball team;
• The man took the girls to their medical and dental appointments as well as school trips, etc.;
• The man paid for expenses, attended a graduation and provided a ring;
• Report cards showed that the man had completed and signed the “parent and guardian” section.
• The children referred to the man as “dad” in pictures in their journals and school drawings;
• The children referred to the man’s sister, brother-in-law, and mother as aunt, uncle, and “Nan”.
• The man attended the interviews at the school with the children;
• The man attended family gatherings regularly with the children and their mother and appeared to be playing a parental role;
• The man often took the initiative in disciplining the children.

On the basis of that evidence, the court rules that the children’s mother had established a prima facie case for interim child support.

For more information about whether a person could be the father of a child under the Family Law Act or the Divorce Act, be sure to consult with a lawyer (by making a post on Dynamic Lawyers).

written by admin \\ tags: biological parent, boyfriend girlfriend, child support in ontario, child support obligations, family law act, family law lawyers, federal divorce act, ontario court cases, ontario court of justice, ontario family law, ontario family law act, professional assistance

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to setting up a dental, health, or legal professional corporation, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario business lawyers registered on the website who can answer your questions or help you with your professional corporation.  I should know – I’m one of them and you can contact me directly (michael@carabashlaw.com).

So you are a dentist and you want to have a professional corporation for tax purposes.  Here’s the general process:

1. Under the Regulated Health Professions Act, 1991, no corporation shall hold itself out as a health profession corporation unless it holds a valid certificate of authorization: s. 34.1(1).
2. Schedule 2 of that Act discusses Health Profession Corporations (ss. 85.8 through to 85.14).
3. Subject to the regulations made the Act and the by-laws, one or more members of the same health profession may establish a health profession corporation for the purposes of practising their health profession: s. 85.8(1).
4. The Certificates of Authorization (Ontario Regulation 39/02) are made under the Act.
5. You will need to have a corporation BEFORE you can have a health profession corporation.  In other words, a health profession corporation is simply a corporation holding a certificate of authorization. So the corporation will need to be registered under the Canada Business Corporations Act or the Ontario Business Corporations Act.  To register a corporation, you should have a lawyer prepare the articles of incorporation, the by-laws, director and shareholder resolution and meeting minutes, director and shareholder registry, etc.  A lawyer may also be needed to  create a special class of shares for certain family members (for income-splitting purposes).
6. If you would like a lawyer to fill out the Certificate of Authorization, lawyers would charge extra for their time and it would also cost $750 in fees to the Royal College of Dental Surgeons of Ontario.
7. Depending on the name you choose for your professional corporation, the normal time frame to incorporate is between 1-3 business days.  If there are issues with the name you’ve selected, it could take longer.

FYI, you might want to consider getting a memo from a lawyer on the tax advantages/potential traps of having a dental professional corporation.  There are many things that you should be aware of (e.g. income splitting, loans, attribution rules, etc.).  The way I see it, if you’re going so far as to spend $2,500 to $3,000 incorporating (which includes getting a certificate of authorization), you should spend a bit extra to find out what you can legally do with a corporation with respect to taxes.

written by admin \\ tags: articles of incorporation, business corporations act, business lawyers, canada business corporations act, dental health, health profession, health professions act, ontario business, ontario regulation, professional assistance, professional corporation, regulated health professions, regulated health professions act, shareholder resolution, valid certificate

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

This is the first of a series of blog posts I’ll be writing about family law in Ontario.  In this blog, I’ll be discussing something vary basic: child support obligations in Ontario.

A common question people sometimes ask: if I never get married but have a child with someone, do I still owe them child support?  Well, the Ontario Family Law Act doesn’t care if you, as the child’s father or mother, is married.  Nor does the Act care if you’re common law.  All that matters is that the payor is the child’s parent.

Basic Obligation of Parent to Pay Child Support
O.k., so when does a parent have to pay child support in Ontario?  Basically, there are two situations under s. 31(1) of the Act which require a parent to pay child support.  Here’s what that section says:

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

So by reading this section, it becomes clear: every parent has an obligation to provide support for his or her unmarried child who is (1) a minor or (2) enrolled in a full time program of education.  There is an exception to these two tests and that is set out in section 31(2), which states that the obligation under s. 31(1) does not extend to a child who is 16 years old (or older) and who has withdrawn from parental control.  What exactly is meant by “parental control” will be discussed in the next blog.

First Branch: Minor
Under the first branch, the first question to ask is: who is considered a “minor” in Ontario?  The Age of Majority and Accountability Act states that: “Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years” [s. 1].  Remember: this liability is limited by the parent’s capability of paying child support [s. 31(1)].  This liability is further restricted if child, assuming he or she is over 16 years old, has withdrawn from parental control [s. 31(2)].

Second Branch: Attending School Full Time
Even if a parent’s child is over the age of 16 (indeed, there doesn’t appear to be any upward limit here), a parent may still be liable to pay child support if the child is “an unmarried child who…is enrolled in a full time program of education”.  This is the second branch.  Once again: this liability is limited by the parent’s capability of paying child support [s. 31(1)].  This liability is further restricted if child, assuming he or she is over 16 years old, has withdrawn from parental control [s. 31(2)].

Caselaw
So how have Ontario courts interpreted these sections of the Act dealing with the obligation of a parent to support a child?

In Giess v. Upper (1996), 28 R.F.L. (4th) 46, Mendes da Costa J. of the Ontario Court of Justice – General Division wrote the following about the support obligation created by s. 31(1) of the Act in the context of that case:

16 The support obligation created by section 31(1) is two-fold. First, it applies to an “unmarried child who is a minor”. While the child, Elizabeth, is unmarried, she was born on October 22nd, 1977, and is now 19 years of age. As she is no longer a “minor”, she does not qualify for support under this limb of the subsection. Secondly, the support obligation extends to a child who is “enrolled in a full time program of education”. With regard to this extension of the support obligation, the word “child” is used as a term of relationship, and does not imply any limitation as to age.

In that case, the 19 year old child was found to be enrolled in a full time program of education. Mendes da Costa J. explained that the word “enrolled” meant that the child’s participation had to be meaningful: “it must be of such a nature and equality as to be consistent with the program’s purposes and objectives”. The father was found to have an obligation to provide child support under the second branch of s. 31(1) of the Act – subject to whether the child had “withdrawn from parental control”.

In McCann v McCann, the Ontario Court of Justice – General Division rejected the argument that if a child stopped being enrolled in a full-time program of education and ceased to be eligible for any child support, then their eligibility forever ceased and could not be resurrected by a subsequent enrollment in school in a full-time program of education. As per Aston J.:

24 Christopher McCann is now an “unmarried child” who is enrolled in a full-time program of education. I cannot conceive of any reason in logic or equity why it should matter that he has not been continuously enrolled in a full-time program of education since attaining the age of 18. The word “continuously” does not appear in the wording of subsection 31(1) of the Family Law Act.

25 There is a discretion in the court to deny support to an adult child who has left a full-time program of education and then resumed such a program but a gap in an ongoing program of education does not, in my view, automatically disqualify an applicant child from seeking support.

In McNulty v. McNulty, [2006] W.D.F.L. 434, Howden J. of the Ontario Superior Court of Justice observed:

10 The obligation to pay support for a child has not been applied by the court on a standard of perfection (or near-perfection) in attendance or in achievement by marks. The requirement of section 31(1), for the child who has reached 18 years of age and is no longer a minor, is that that “child” be enrolled in a full-time program. That has been applied to mean participation in the educational program in which he/she is enrolled in a meaningful way.  Giess v. Upper, (1996) 28 R.F.L. (4th) 460 (Ont. Gen Div).  In Copeland v. Copeland, (Ont. Gen. Div. (unreported Dec. 9/92, noted in Ontario Family Law Practice 2006, by C. Perkins, D. Steinberg and E. Lonkingly (sp?), p. 696), it was determined that a court should not impose a standard of devotion, priority and effort on a child as a condition of continuing a claim for support. In another case, that of a daughter over 18 years of age who completed high school but did not attend school for a year, the court held that the parent’s support obligation had not ended. Huneault J. held:

11 The purpose of the obligation to provide support extending into a child’s adult years is to reinforce parental responsibility for the education of their children beyond the age of majority. Reading this section as a whole, the legislative intent of parental support is to provide and continue to provide support for a child who is pursuing an educational program and remains dependant on the parent while he/she has not completed their education…

…

13 …The requirement of enrolment in a full-time course of education does not contemplate mere enrolment of the student to operate as a continuing trigger for support payments without some participation by the “child” in the program. Barring special circumstances (such as Tiara’s pregnancy, giving birth and maternal duties in her newborn’s first year), the “child” of 18 years or more owes a duty of due diligence to participate meaningfully in the educational program (interpreted in a contextual understanding, and purposive way) under section 31 of the Act.  Figueiredo v. Figueiredo (1991), 33 R.F.L. (3d) 72 (Ont. Gen. Div.), following Giess v. Upper.

Finally, in Simpson v. Hart, 1998 CarswellOnt 5163, Dunbar J. of the Ontario Court of Justice – General Division noted that: “The law is clear that a child who is independent may re-qualify for support from a parent by recommencing school and thus becoming dependent once more on the parents”.

written by admin \\ tags: child support in ontario, child support obligations, common law, educational purposes, family law act, family law in ontario, family law lawyers, full time, information advice, legal advice, obligation, ontario family law, ontario family law act, ottawa, professional assistance, section 31, unmarried child

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to Ontario Not-For-Profit Corporations, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto and Ontario not-for-profit lawyers registered on the website who can answer your questions, represent you in litigation, or help resolve a dispute.  I would know – I’m one of them and you can contact me directly - michael@carabashlaw.com.

Follow up on other blogs I’ve written about Ontario not for profit corporations, I thought it would be worth discussing what happens if there is an internal dispute concerning an Ontario Not-For-Profit Corporation. Take the following example.  The By-Laws (power-giving documents)  say something or fail to say something about a specific procedure – for example, procedural requirements that must be followed for holding a member meeting or having members vote for a board of directors.  At the end of the day, someone (e.g. a director, officer, or member) cries foul for procedural irregularity and are contemplating court action.  The question comes up: how have Ontario courts responded previously when faced with these types of matters?

Basically, Ontario Courts dealing with disputes about procedural irregularities involving not-for-profit corporations have observed that:

• Courts will be loathe to interfere in the internal working of not-for-profit corporations absent some demonstrated evidence that any procedural irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority.
• Courts will not intervene with determinations made by a non-share capital corporation in accordance with its by-laws provided the corporation does not demonstrate bad faith or act contrary to the rules of natural justice.
• The relationship between a not-for-profit corporation and its members is contractual: only in certain circumstances, or where there are contractual rights created by the not-for-profit corporation’s by-laws, will the member be able to enforce their rights under the law.
• It is only for a not-for-profit corporation (and not a court) to determine its corporate governance documents. Courts should not get generally get involved in the internal governance matters of a not-for-profit corporation.

What follows is a brief summary of the past cases where Ontario courts have made decisions concerning internal governance disputes of not-for-profit corporations.  You are cautioned again not to rely on these cases (as they may no longer be good law and may not apply to your particular situation) and to seek professional help by making a post on Dynamic Lawyers (or contact me directly - michael@carabashlaw.com).

In Lee v. Lee’s Benevolent Assn. of Ontario, [2004] O.J. No. 6232, members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Specifically, the applicants primarily claimed that some ballots were cast in advance of the election date. There was nothing in the corporation’s by-laws permitting the advance voting. While Nordheimer J. admitted that this caused an irregularity in the election, he did not accept this irregularity as invalidating the election. Indeed, he held that, notwithstanding this technical failure, there was no evidence or suggestion that the votes so cast did not reflect the wishes of the voters. He went on to state:

12 Non-profit organizations such as the Association should not be required to adhere rigorously to all of the technical requirements of corporate procedure for their meetings as long as the basic process is fair. Nor should the court be too quick to grant relief in such circumstances that may only serve to encourage a disgruntled member of such an organization to seek such relief. Absent some demonstrated evidence that any irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority, the court should be loathe to interfere in the internal workings of such groups.

The last sentence of this passage has been adopted by subsequent Ontario courts.

In Warriors of the Cross Asian Church v. Masih, (2007) 87 O.R. (3d) 169, members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Specifically, the applicants claimed that no written notice of the meeting had been provided and no ballots had been used at the meeting to take the vote. Lederer J. found that the election of the board members did not comply with the Corporations Act and was therefore not valid. Citing the ruling in Lee v. Lee’s Benevolent Assn. of Ontario, Lederer J. held that the error in the instant case “goes to the very heart of an election” and ultimately ordered that the not-for-profit corporation be would up for its failure to adhere to the requirements of the Corporations Act.

In Rakowski v. Malagerio, [2007] O.J. No. 369, the member of an Ontario not-for-profit corporation (the Humber Students’ Federation) brought an application to challenge the validity of a policy which prevented directors from being members of non-sanctioned student associations or advocacy groups. Perell J. dismissed the application, finding that the not-for-profit corporation’s policy was reasonable, non-discriminatory and not contrary to public policy and the public interest, and that the policy had been enacted in good faith. Although the Humber Students’ Federation is a corporate entity, Perell J. commented that it was similar to an association or club and offered the following observations about why the court’s jurisdiction in the affairs of associations and clubs is problematic:

29 Traditionally, courts have expressed reluctance and sometimes a refusal to interfere with the internal affairs of associations and clubs. There are a variety of reasons for this attitude. One reason is that the nature of the relationship of the members of an association is intentionally designed by the members of the association to be informal and non-legal. Just as some promises are intended to be contractual and some are not, persons may decide to associate in informal ways that are not meant to call for judicial supervision. The courts tend to respect these choices. Another reason is that the legal classification of these associations does not fit neatly into the recognized categories of legal entities. Yet another reason is that there may be little the court could do if it assumed jurisdiction and the only solutions or remedies might rest with the members of the club or association.

30 The case law, however, reveals that courts do get involved in the affairs of associations and clubs. Sometimes, the court will decide a matter involving an association because the jurisdictional issue was simply not raised by the parties, who wished an answer from the court or did not appreciate that perhaps the matter of the dispute was non-juridical. Sometimes, the court will become involved if a principle of natural justice is breached. Here, one classic class of examples is the situation where a member of a club or association is expelled from the club or association or is temporarily or permanently disqualified from participating in its activities or is disciplined for breach of the club or association rules and the process of expulsion, disqualification, or discipline is fundamentally unfair. The courts will exercise a limited jurisdiction to ensure that an association or club does not violate the principles of natural justice. Sometimes, the court will become involved because the nature of the unincorporated association has evolved to be a legal entity that may be regulated by the courts at least for some purposes. This evolution appears to have occurred for trade unions; see: Berry v. Pulley, [2002] 2 S.C.R. 493 and registered political parties; see: Ahenakew v. MacKay (2004), 71 O.R. (3d) 130 (C.A.). Sometimes, the courts will become involved because, upon analysis, the court finds that the relationship between the members that constitute the association or club is contractual in nature and that the law of contract affords a basis for the court’s common law jurisdiction. Sometimes, there are special statutory provisions that empower the court with jurisdiction, and sometimes the members of the association or club circumvent the problem by relying on rules of civil procedure or legislation that authorizes the court to interpret documents or statutes and to make declarations.

In Alaimo v. Di Maio, 2008 CarswellOnt 3729 (Ont. S.C.J.), members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Boswell J. dismissed that claim in light of the test set down by Nordheimer J. in Lee v. Lee’s Benevolent Assn. of Ontario and followed by Lederer J. in Warriors of the Cross Asian Church v. Masih. Boswell J. reviewed the evidence and held:

128 From a procedural point of view, therefore, there were no irregularities identified by the Applicants in their evidence that appear to me to be of a significant nature, and certainly none that could be described as going to the heart of the election.

In Polish Alliance of Canada, Branch 43 v. Polish Alliance of Canada, 2008 CarswellOnt 3729 (Ont. S.C.J.), members of an Ontario not-for-profit corporation alleged procedural irregularities in respect of a mortgage being registered against the corporation (among other things). Specifically, the members complained that they had not received notice of such mortgage and no resolution had been passed at the general convention prior to the mortgage being registered. The members wanted the corporation’s board to be suspended, a new annual general meeting convened, and full financial disclosure provided. Referencing Lee v. Lee’s Benevolent Assn. of Ontario and Warriors of the Cross Asian Church v. Masih, J.A. Thorburn J. held that:

21 The Court may resolve disputes regarding the affairs of a not-for-profit corporation where the process followed by the corporation is not a mere technical irregularity but is unfair and the results go to the heart of the process.

J.A. Thorburn J. ultimately ruled that the request for relief was premature as internal mechanisms provided by the corporation’s Constitution had not been exhausted. As such, he adjourned the proceedings pending the members’ exhaustion of the internal dispute resolution procedures.

In Sahaydakivski v. YMCA of Greater Toronto, [2006] O.. No. 1368 (Ont. S.C.J.), the YMCA of Greater Toronto expelled a member for breach of its by-law caused by his unbecoming conduct. The member brought an application for an order setting aside his expulsion, restoring his membership, and requiring the YMCA of Greater Toronto to disclose the name of the complainant. The member’s application was dismissed on the basis that the officers of the YMCA of Greater Toronto had exercised their authority to expel the member in accordance with their by-laws and in good faith. Belleghem J. wrote:

30 The court will not intervene on any finding of fact made by the [YMCA of Greater Toronto], provided that in arriving at its finding it complied with its own by-law, i.e. it carried out its contractual obligation to the applicant not to expel him except in accordance with by-laws to which the applicant acceded upon his entry into the association.

In McGee v. Beaver Valley Ski Club, 2006 CarswellOnt 2537 (Ont. S.C.J.), a member of a not-for-profit social club sued the club after being suspended for a period of one year following disciplinary hearings concerning his participation in certain municipal planning matters. Tulloch J. dismissed the member’s claim on the basis that the club had acted properly and in accordance with its by-law. In reaching that conclusion, Tulloch J. commented that:

39 In Conacher v. Rosedale Golf Assn., 2002 CarswellOnt 527 (Ont. S.C.J.), the court held that the relationship between a private club and a member is a contractual relationship. Only in certain circumstances, or when there are contractual rights created by the club’s by-laws, will the member be able to enforce rights under the law.

…

44 The Conacher decision was followed by a recent decision of this court, Sahaydakivski v. YMCA of Greater Toronto, 2006 CarswellOnt 2205 (Ont. S.C.J.). In this case, Justice Belleghem dismissed the applicant’s request to set aside his expulsion from the respondent organization. Justice Belleghem noted the following:

…

30 The court will not intervene on any finding of fact made by the respondent, provided that in arriving at its finding it complied with its own by-law, i.e. it carried out its contractual obligation to the applicant not to expel him except in accordance with by-laws to which the applicant acceded upon his entry into the association…

…

47 I find that the disciplinary proceedings were conducted properly, and in accordance with the BVSC by-law…

49 In a matter such as this, where the plaintiff is a voluntary member of an organization governed by a contractual relationship between the parties, my review of internal decisions made by the organization is limited.

In Chu v. Scarborough Hospital Corp.,[2007] 35 B.L.R. (4th) 254 (Ont. Div. Ct.), members of a not-for-profit corporation requisitioned a special meeting under the Corporations Act and the corporation’s By Law 1. The corporation’s board refused to call the meeting on the basis that those individuals’ memberships had expired. The members brought an application to have their memberships recognized. They were initially successful and Brown J. of the Ontario Superior Court of Justice ordered the board to forthwith call the special meeting. The board appealed Brown J.’s decision. Linhares de Sousa JJ. of the Divisional Court upheld Brown J.’s decision and dismissed the appeal. In coming to that conclusion, Linhares de Sousa JJ. stated:

20 …the jurisprudence clearly establishes that the by-laws of non-share capital corporations incorporated pursuant to the Corporations Act, like the case at bar, constitute contractual obligations as between the members and the corporation (see Senez c. Montreal Real Estate Board, [1980] 2 S.C.R. 555 (S.C.C.), p. 7 and Sahaydakivski v. YMCA of Greater Toronto, [2006] O.J. No. 1368 (Ont. S.C.J.), paras. 28-30). Both the corporation and individuals who become members of the corporation undertake to comply with the constating documents and the by-laws, which are duly adopted by a majority of members entitled to vote, even if they disagree with those by-laws.

…

22 …the jurisprudence mentioned earlier also establishes that the Court will not intervene with determinations made by a non-share capital corporation in accordance with its by-laws provided the corporation does not demonstrate bad faith or act contrary to the rules of natural justice.

In Seong v. Korean Canadian Cultural Assn. of Metropolitan Toronto, [2007] O.J. No. 893 (Ont. S.C.J.), members of an Ontario not-for-profit corporation were split into factions regarding whether the corporation’s headquarters should be sold and new premises acquired. The situation became very confusing due in part to uncertainty and conflicts between the corporation’s Constitution, official by-laws, and proposed amendments to those by-laws. On these issues, Perell J. held that there was no reason for the court to intervene in the corporation’s internal affairs. He stated that the corporation does not need the court’s assistance to determine the authority of its own governance documents and that the court should not involve itself in the various internal governance affairs of the corporation (e.g. concerning amendments to the official by-laws, conflicts between governing documents, etc.). Some of Perell J.’s statements are noteworthy here:

44 …the Association does not need the court’s assistance to determine what legal status to give to the Constitution. All the Association need do is decide this matter itself in accordance with the provisions of the Corporations Act.

45 While the court may have a jurisdiction to interpret the corporate documents, it is not for the court to write the governance documents of the Association.

46 Moreover, it appears that the Association is attempting to write its own rules of governance by the enactment of amendments to the official by-laws. These amendments are to be put to the membership at the upcoming annual general meeting. The court should not get in the way of this effort and involve itself in the internal affairs of the Association.

…

49 In any event, this matter is an internal matter for the Association, and, standing alone, this matter would not justify the court ordering a special meeting of the members.

…

55 …ultimately these matters have to be resolved by the Board passing by-laws, which is already happening, and I do not see any reason for the court to get involved in these internal governance matters at this time.

58 …the matter of properly constituting a single board of directors will be resolved by the upcoming elections and annual general meeting of the members of the Association.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting a child custody order in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get child custody.

It’s a tough situation: you want to split up from your common law or married spouse and take your child with you.  But you don’t have the permission of your spouse.  Now they’re saying that they’ll call the police and report an abduction if you suddenly leave with your child.  Is that true?  What are your options?

Starting Position: Parents have equal rights
Well, you need to start off by looking at the Children’s Law Reform Act.  Section 20(1) says:

Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

So if a spouse is planning to just get up and leave with their child, they will be infringing on the other spouse’s equal entitlement to custody.  Here, “custody” means having legal care and control of the child.   The spouse that take their child could face family law and criminal sanctions (e.g. charged with abduction).  There are defences which they could raise, however, which are outlined in the Criminal Code provisions repeated below.

Court Order or Separation Agreement
So how do you get around the “equal rights” starting position?  Well, s. 20(7) of that Act says:

Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement.

So, if there is a valid separation agreement or court order dealing with custody and access, then a spouse would be entitled to take their child as per the terms of that agreement or order.

Separation Agreement
The terms of a valid separation agreement can deal with custody and access issues of children.  For example, a term could say that the husband will have custody of the children and the wife will have access to include overnight, weekend, and extended holiday visits.  Alternatively, a term could say that the husband and wife will have joint custody of the children (e.g. the children will reside with the husband but will be in the custody of the wife as follows….).  The terms of your separation agreement to satisfy both parties’ interests in light of the best interests of the children.

Court Order
If you don’t have or can’t get a separation agreement with your spouse that addresses custody and access issues, you will need to apply to the court (using Form 8).  The person making the application is called the “Applicant” and your spouse will be the “Respondent”.  As per the Superior Court of Justice – Family Court – Fees Regulation, there is no filing fee on an application seeking custody, access, or support made under the Children’s Law Reform Act.  There also doesn’t appear to be any fees payable if the proceeding is in the Ontario Court of Justice.  For more information about family law procedures in the Ontario Court of Justice, check out this Guide by the Ministry of the Attorney General.  For more information about family law procedures in the Superior Court of Justice, check out this Guide by the Ministry of the Attorney General.

Criminal Sanctions
Without a separation agreement or court order to the contrary, a spouse can be charged with abduction by simply taking their children and leaving the other spouse.  Here are the relevant sections of the Criminal Code dealing with the offence of abduction (very serious stuff) and the possible defences.  Remember: if you are contemplating getting a separation agreement or applying to the court for custody and access, you can make a post on Dynamic Lawyers (100% free and anonymous) where family law lawyers can advise and represent you:

Abduction

283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.

284. No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.

285. No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.

286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.

written by admin \\ tags: alteration, common law, criminal sanctions, educational purposes, family law lawyers, information advice, ontario family law, professional assistance, separation agreement

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a mistake in a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

A Will is only valid if the Testator knew and approved its content.  If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases.  In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake.  That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include that offending residuary clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him. Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.

written by admin \\ tags: brampton, court of justice, educational purposes, legal advice, mississauga, needy students, ontario court of justice, ontario lawyers, ottawa, passages, professional assistance, residuary clause, solicitor, testator, true copy, ukrainian origin, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice as a dependent, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you in this regard.

What if you have been inadequately provided for in someone’s Will?  Well, if you’re a dependent in Ontario, you might have some legislative recourse.

Section 58(1) of the Succession Law Reform Act allows a deceased’s dependents to apply to the court for support where the deceased (either through a Will or absent one) has not made adequate provision for their proper support.  A dependent is defined under s. 57 of that Act to include your spouse, former spouse, common-law spouse, parent, grandparent, child, grandchild, brother, and sister. A dependant may have to prove that they are a dependent and entitled to financial support under s. 58(1) in court. If the court decides that the person is a dependant and that person can show a need for financial support, then it may order that a certain amount of money be paid to them out of the estate.

If you think that you may be entitled to more from an estate than the amount provided for in a Will, or if you need to determine the rights of others when preparing your Will, consult with a lawyer (by making a post on Dynamic Lawyers).

written by admin \\ tags: adequate provision, brampton, brother and sister, common law spouse, dependant, dependents, educational purposes, legal advice, ontario lawyers, professional assistance, regard, succession law reform act, toronto, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will or International Will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will or International Will.

Along with other provinces and countries, Ontario is a contracting party to the Convention Providing a Uniform Law on the Form of an International Will.  This means that, if a Will is made in the form of an International Will (i.e. in accordance with the form prescribed by that Convention in the Schedule and Annex in the Succession Law Reform Act) concerning two or more contracting parties, then the Will is valid as between those parties irrespective of where it was made, the location of the assets and of the nationality, domicile, or residence of the testator. At present, some the contracting parties to the Convention include: Belgium, most Canadian provinces (Manitoba, Newfoundland, Alberta, Saskatchewan, Prince Edward Island, New Brunswick, and Nova Scotia), Cyprus, Ecuador, France, Italy, Iran, Portugal, the Russian Federation, the United Kingdom, and the United States of America.  An important difference with an International Will is the requirement that an authorized person (in Ontario, this means a lawyer) attach to the Will a Certificate establishing that the obligations of the Convention have been complied with.

written by admin \\ tags: brampton, canadian provinces, domicile, educational purposes, legal advice, mississauga, nationality, new brunswick, ontario lawyers, prince edward island, professional assistance, russian federation, succession law reform act, testator, uniform law, Wills and Estates