Whose Property Is It? Certainty in Estate Planning
October 16, 2021 By Brian Babcock Except in very limited circumstances, in your will, you may only give away property that you own. This may seem obvious, but we see recurring cases where people fight over whether an asset was truly owned by the deceased person. The most typical disagreement is whether or not the […]
Peace of Mind: Certainty in Estate Planning
October 4, 2021 By Brian Babcock Sometimes a will leaves it unclear “what property is in the trust?” This is particularly important where your will creates a trust in favour of one person for life, with the remainder going to other persons. Ambiguity creates a variety of issues. One of these is illustrated in the […]
Home Field Advantage: Can you sue for that in Ontario?
October 4, 2021 By Brian Babcock Ontario courts are usually very liberal about questions of jurisdiction to sue in Ontario. The general test is that there must be a ‘real and substantial connection’ between Ontario and the claim against the defendants (the people being sued). Where the plaintiff (the person suing) and at least one […]
Taking Indigenous Property Rights Seriously
September 27, 2021 By Brian Babcock Courts typically make injunctions to protect property rights available more easily than injunctions in other situations, such as breach of contract, or labour disputes, because “property rights are sacrosanct”. A different attitude appears to apply when it comes to efforts by First Nations or Indigenous groups to protect traditional […]
Who are Your “Friends”? Certainty in Estate Planning
September 27, 2021 By Brian Babcock A valid trust requires what are called the “three certainties” – certainty of intention to create a trust, certainty of subject matter (what property is in the trust?), and certainty of objects (who are the beneficiaries?). This applies to most gifts in wills, where the property is usually transferred […]
The Oppression Remedy and Marriage Breakdown
September 22, 2021 By Brian Babcock For many people, going into business with their spouse is a dream – who better as a business partner than your life partner? But what happens when that dream becomes a nightmare? According to the case of Fuentes v. Camino Construction, the oppression remedy under the Ontario Business Corporations […]
Compensation of Estate Trustees
September 22, 2021 By Brian Babcock Historically, estate trustees were not entitled to be paid for their work unless the will expressly provided for compensation. Now, in Ontario, the opposite applies – unless the will denies or limits trustees’ compensation, the trustees are entitled to reasonable compensation. This is paid out of the residue of […]
Tenant or Owner?
September 5, 2021 By Brian Babcock Ontario’s Landlord and Tenant Board has the jurisdiction to determine the ownership of buildings, including through a simplified summary process. That determination, however, may not finally determine rights or obligations flowing from an ownership interest. In Sutton v. Riddle, the Divisional Court, which hears appeals from the Board, has […]
Punitive Damages are Not a Consolation Prize
September 5, 2021 By Brian Babcock Punitive damages may only be awarded if the court finds that there is an “independent actionable wrong.” Misconduct alone is not enough. This principle, established at least since 2002, has been somewhat overlooked in recent years as judges easily found the requirement met by almost any malicious or intentional […]
Is working notice a good idea?
August 30, 2021 By Brian Babcock Sometimes, when a non-union employee is terminated without cause, the employer tries to gain value for the amounts payable to the departing employee by giving working notice. Whether or not this is a good idea depends upon all of the circumstances. If the departure is amicable, the employee is […]