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Ontario Land Transfer Tax Exemptions
Friday, December 1, 2017
In Ontario, provincial Land Transfer Tax (LTT) is payable by anyone who acquires real property or a beneficial interest in land. The rule is that LTT is payable on the value given for obtaining such an interest (legally described as “consideration”). Consideration is generally the amount paid for the land and the amount of any debt or mortgage assumed as part of the purchase.
As with many rules, there are exceptions to the application of LTT. I outline a few of them here:
First-time homebuyers are eligible for a refund of LTT. The conditions for eligibility are:
They are 18 years or older;
They have not owned a home or an interest in a home anywhere in the world; and
They have not been a spouse of someone who has owned a home or interest in a home anywhere in the world while s/he was the purchaser’s spouse.
For example: If Adam owns property and marries Ann, who has never owned a home, Ann does not meet the eligibility requirements for a LTT refund because she was the spouse of someone who has owned property.
It is important to note that the definition of “spouse” includes a) married couples, b) couples who have cohabited for more than 3 years, and c) couples who have lived together “in a relationship of some permanence” and have a child.
This definition of “spouse” also applies to the LTT exemption for transfers between spouses or former spouses, which are not subject to LTT if a) they are made pursuant to a court Order or a Separation Agreement or b) if the only consideration provided is the assumption of an encumbrance such as a mortgage. For example: If Blake owns property and wants his spouse, Barrie, to be added to title, Barrie will not pay LTT for obtaining an interest in Blake’s property so long as no value is changing hands aside from Barrie’s name being added to the existing mortgage.
Transfers from an estate to a beneficiary are not subject to LTT if the transferor is the personal representative of the deceased (i.e. Estate Trustee, Executor, or Estate Administrator) and the recipient is given the property in satisfaction of all or a part of his/her beneficial interest in the estate. This is true regardless of whether the transfer is pursuant to a will or on an intestacy.
If you are thinking of giving or acquiring an interest in land and would like to know if LTT is something you should budget for, please contact one of GGFI’s real estate lawyers who can help you navigate the eligibility requirements for these and other exceptions.
GGFI is pleased to welcome its newest lawyer, Madchen V.J. Funk. Madchen joined the GGFI team as a summer student and returned to complete her articling term before receiving her call to the bar in June 2017.
Madchen’s areas of practice include civil litigation, family, wills and powers of attorney, real estate, and estates.
Reporting Changes to the Principal Residence Tax Exemption
Tuesday, February 14, 2017
As tax season approaches, it is important to be aware of the changes made in the 2016 tax year. One of the notable changes implemented by Canada Revenue Agency is that relating to the principal residence tax exemption for gains made on the sale of real estate.
Starting with the 2016 tax year, individuals who sell their principal residence will be required to report basic information on their income tax return in order to claim the full principal residence exemption. This change may affect persons who sold their principal residence on or after January 1, 2016.
Previously, you did not have to report the sale of your principal residence to claim the exemption. The new rules for claiming the principal residence tax exemption require you to designate the property as your principal residence in your tax return for the year of the sale by filing the appropriate form. Please consult a tax professional in this regard, as this information is not to be construed as accounting or tax advice.
Alberta Appeal Court Expands the Scope of Judicial Review of Religious Organizations
Tuesday, December 20, 2016
The conventional wisdom has been that decisions of churches are private decisions, made by private institutions, and therefore are not open to judicial review. In other words, if a member is disciplined by a church (by, for example, being expelled), they cannot apply to the courts to have that decision reviewed.
The member may still have remedies available to them in contract and/or in tort, but it has been generally accepted that they cannot apply for the statutory remedy of judicial review.
A recent decision from the Alberta Court of Appeal may turn that thinking on its head.
Mr. Wall exhausted the avenues of appeal that were available to him within the Jehovah's Witness hierarchy, without success. The Church upheld his expulsion, and Mr. Wall applied to the Courts for judicial review of the church's decision. The Church moved to dismiss the case on the grounds that private decisions of private institutions are not susceptible to judicial review. The Alberta Court of Queen's Bench held that the case could go ahead, and the Church appealed.
On appeal, the Alberta Court of Appeal released a split decision. In dissent, Justice Wakeling held that decisions of private institutions are not properly the subject of judicial review. Justice Paperny and Rowbotham, however, departed from this traditional understanding.
The majority held that the availability of judicial review is discretionary. They further held that, because the standard of review was one of deference, they were unwilling to interfere with the decision of the lower court judge. The majority concluded that a court does have jurisdiction to review the decision of a religious organization when a breach of the rules of natural justice was alleged. Because Mr. Wall had alleged a breach of the rules of natural justice in how he was expelled from the Church, the Court properly had a role in reviewing whether or not the rules of natural justice were followed.
The result means that Mr. Wall can now have a judge of the Alberta Court of Queen's Bench review his expulsion from the Jehovah's Witness Church, and potentially order him to be reinstated. It also means that the extremely narrow grounds upon which a court will undertake judicial review of a religious organization's decisions has been widened. It remains to be seen if this is just a small evolution in the law of judicial review, or if it is the beginning of a larger trend of courts becoming more willing to review the decisions of religious organizations.
Does Your Business need a Shareholders’ Agreement?
Monday, November 21, 2016
Maybe you and some family members have purchased a rental property together. Maybe you and a friend have decided to open up a hobby business, a restaurant, or a retail store. You have looked at the pros and cons of different business structures (which is a topic that deserves its own article), and chosen to operate as a corporation.
There may be different expectations of each shareholder. Some may have contributed money but do not expect to become involved in operations. Or some might be family members who own shares simply to help create some tax savings. The more shareholders you have in the business, the more chances you have for something to go wrong.
A Shareholders’ Agreement is a document which can plan ahead for the business. When I help clients prepare a Shareholders’ Agreement, here are a few of the topics we talk about:
Can one of the partners sell her shares to an outside buyer? Should the existing shareholders have the chance to match the offer? If the remaining shareholders don’t want to work with the new buyer, can they force the buyer to purchase the entire corporation?
Nobody wants to be stuck in a stalemate during disagreements. If the disagreement cannot be solved, can a shareholder be forced to sell their shares? If someone wants to exit the company, can they force other shareholders to buy their shares? Who chooses the selling price? What if one shareholder is willing to pay a premium price to buy out the other one?
In the event of a divorce, separation or bankruptcy, ownership of shares may suddenly change. Should the divorcing partner be forced to sell other assets first, if possible? Can the remaining shareholders buy-out the shares before a bankruptcy takes effect?
What happens when one of the main operators dies? Should the spouse inherit the shares and continue to help run the business? Or should the corporation buy life insurance so that the deceased’s family members are bought out of the business at fair market value? What if someone becomes unable to work due to a disability or injury?
Can any shareholder operate a similar business at the same time? What if the business has an opportunity to purchase another building or franchise at a discount rate, but some shareholders don’t want to become involved in the second location?
What if there are other disagreements? Should arbitration be used so that you keep business secrets out of a public courtroom?
These situations, and others, can be covered in advance with a Shareholders’ Agreement. This document lets all shareholders agree on these topics now, so that they do not become the subject of hurt feelings and court battles later on. It can help ensure your control of your company stays within the network that you choose, and prevent you from suddenly becoming partners with someone you never chose to work with.
A lawyer can help you plan for and prevent the ‘worst case scenario’ so you can stop worrying, and start preparing for the growth of your corporation.
Robert Lanteigne is a lawyer with Giesbrecht, Griffin, Funk & Irvine LLP. A version of this article appeared in the New Hamburg Independent on Wednesday, November 2, 2016.
Giesbrecht, Griffin, Funk & Irvine LLP is pleased to welcome Fred Heimbecker to its team. Fred brings to GGFI his valuable experience in many areas of practice, including corporate law, real estate, wills and estates.
People are more mobile now than at any time in history. Transportation and technology are increasingly moving our jobs, businesses and family constellations beyond the confines of territorial borders, and many of us see ourselves as citizens of a shrinking global village. 'Global families' are becoming increasingly common, as we follow freely-moving jobs and capital across borders.
Technology has made it easier than ever to maintain relationships over vast distances. For some, all that is required is an internet connection. Further, many of us have the option of multiple citizenships, and travel is cheaper and more accessible to us than ever before. People and families are on the move in increasing numbers.
On the other hand, a family separation can throw territorial borders (and the distinct laws operating within them) back into sharp focus. Suddenly the distance between spouses and parents can be a critical issue and borders can represent challenges to the resolution of family law matters. Issues of jurisdiction and conflicts of law add a further dimension of complexity to what is already a difficult and confusing time in one's life.
The family lawyers at GGFI can help you navigate the complex issues related to international separation and divorce. In our International Family Law series, we will examine some common issues in inter-jurisdictional family law, including:
custody and access to children;
obtaining and enforcing child and spousal support;
obtaining and enforcing Orders and agreements related to property in foreign jurisdictions; and
Ted Giesbrecht Honoured with Coulter A. Osborne Award
Wednesday, April 20, 2016
Congratulations to our own Ted Giesbrecht who, on April 13, 2016, received the prestigious Coulter A. Osborne Award.
Each year, the Waterloo Law Association presents the Coulter A. Osborne Award to one of its members whose integrity, comity and beneficence in professional practice and public life uphold the highest traditions of the profession and enhance the reputation of the Association and its members.