Rabideau Law Food Drive 2018

We are proud to announce that we will be holding a Food Drive from November 1st-27th in support of The Food Bank of Waterloo Region, and in the spirit of GivingTuesday.

What is GivingTuesday?

As stated on the GivingTuesday website:
It is a global movement for giving and volunteering, taking place each year after Black Friday. It’s a time when charities, companies and individuals join together and rally for favourite causes. In the same way that retailers take part in Black Friday, the giving community comes together for GivingTuesday.

GivingTuesday harnesses the potential of social media and the generosity of people around the world to bring about real change in their communities; it provides a platform for them to encourage the donation of time, resources and talents to address local challenges. It also brings together the collective power of a unique blend of partners – nonprofits, civic organizations, businesses and corporations, as well as families and individuals – to encourage and amplify small acts of kindness. Across Canada and around the world, GivingTuesday unites communities by sharing our capacity to care for and empower one another.”

To work our Food Drive in with GivingTuesday, we will be going to visit The Food Bank on November 27th to deliver the donations we have collected over the month.

Why should you donate?

• The Food Bank serves a Community Food Assistance Network of more than 80 agencies and community food programs. 2,000 meals are served daily by this Network.
• 49% of households seeking assistance are families with children.
• Just $1 will provide 3 meals.
• 215 food hampers are distributed every day.
• Community nutrition workers teach healthy eating and food budgeting skills at 16 different locations.
• 1 in 20 households in Kitchener-Waterloo are hungry.

How can you help?
• Make a donation
$20 will feed a family for 4 days
Tax refunds are available for donations
• Donate food
Most needed items include:

o Canned stews and chili
o Canned meat and fish
o Beans in sauce
o Pasta sauce
o Canned pasta
o Canned soup
o Canned fruit
o Dried beans
o Hot cereals
o Rice
o Peanut Butter

Donations will be accepted at our office, 501-305 King St W, Kitchener.

When making your donations, be sure to let us know whether your donation is in support of Geoff Rabideau or Roger MacIntosh’s teams!

If you have any other questions, feel free to contact Kayla at kkompter@rabideaulaw.ca

Consumer Proposal versus Division 1 Proposal

What Are The Differences Between a Consumer Proposal and a Division 1 Proposal?

Many people are surprised to discover that Insolvency Trustees are able to offer two different types of proposals through the Bankruptcy Insolvency Act. The first of these is the commonly-known Consumer Proposal, and the second is called a Division 1 Proposal.

 

What are the differences?

…and why would someone select one type of proposal over another?

 

Details of a Consumer Proposal

A Consumer Proposal is available toindividual debtors whose total debts do not exceed $250,000 (excluding the mortgage on their principal residence). When someone files a Consumer Proposal, their Insolvency Trustee will analyze the value of their assets, the size of their debt load, and the amount of net household income coming to arrive at an amount the Trustee feels the Creditors will accept. This is normally a percentage of what you owe them, payable over a specific period of time (normally five years). All payments are made as a single monthly payment to the Insolvency Trustee, and he/she distributes those funds (as a dividend payment) to the various creditors.

Compared with the Division I proposal (see below), a Consumer Proposal is a simplified process. A Consumer Proposal is available to individuals only. There is no interest mounting during the term of the Consumer Proposal and no additional costs levied for Trustee involvement.

 

Details of a Division 1 Proposal

The second Proposal available to be filed is called a Division I Proposal. Like a Consumer Proposal, this is a formal procedure overseen by the Trustee and the Bankruptcy and Insolvency Act. This type of Proposal is available to businesses and individuals — there is no limit with respect to how much money is owed (other than the amount owing must be over $250,000). As with a Consumer Proposal, in a Division I proposal, you work with one of our Insolvency Trustees to put together an offer to pay your creditors a percentage of what you owe them over a specific period of time. And just like the Consumer Proposal, all payments are made through the Insolvency Trustee, and the Trustee uses those funds to pay each of your creditors

 

Comparison of a Consumer Proposal vs a Division 1 Proposal

Let’s take a look at a breakdown of the similarities and differences between a Consumer Proposal and a Division 1 Proposal, so you can determine which type of Proposal would be best for your situation:

Consumer Proposal Division 1 Proposal
Must be less than $250,000 in debt. Must be more than $250,000 in debt.
Available only to individuals. Available to individuals, receivers, a liquidator of an insolvent person’s property, a bankrupt, or a Trustee of the estate of a deceased bankrupt.
Once electronically filed with the Federal Government, protection is in place immediately. Creditors notified within 5 business days. Once electronically filed with the Federal Government, protection is in place immediately. Creditors notified within 5 business days.
Not Applicable. The Trustee must file a statement indicating the projected cash flow of the insolvent.
Once filed, unsecured creditors have 45 days to vote for or against the proposal or put forward a counter-offer. If approved by the majority of creditors, the Proposal gains deemed court approval 15 days later. A mandatory Meeting of Creditors is set up by the Trustee at the time the Proposal is filed. This Meeting of Creditors shall be held within 21 days of the filing of the Proposal. At the meeting of creditors, the Trustee will present the Creditors with a report on the statement of the insolvent person’s business and financial affairs. The Creditors then vote in favor or rejection of the Proposal.
The Trustee will present the creditors with an estimate of what they would realize in a bankruptcy, compared to the amount they would receive in the proposal. The Trustee will present the creditors with an estimate of what they would realize in a bankruptcy compared with the amount they would receive in the proposal.
The settlement offer must be “sweeter” than the creditors would receive in a Bankruptcy. The settlement offer must be “sweeter” than the creditors would receive in a Bankruptcy.
If the Proposal is rejected, the debtor may opt to file a Bankruptcy, or attempt to settle with the creditors directly in an informal manner. If the Proposal is rejected at the Meeting of Creditors, the debtor is automatically bankrupt.
2 mandatory counseling sessions must be attended during the Consumer Proposal (the first within 60 days, the second within 210 days). Counseling sessions are not required in a Division 1 Proposal.
No monthly income statements required. No income statements required once filed.
Tax refunds go to the debtor. Tax refunds go to the debtor.
Finishing the Proposal can take 1-5 years. Paying down the proposal earlier is recommended and welcomed. A Division 1 Proposal is normally a five-year process, but the length can differ. Paying down the proposal earlier is recommended and welcomed.
If three payments are missed, the Consumer Proposal is considered “annulled”. Protection is immediately lifted and the creditors have the legal right to pursue the amounts owing to them. In a Division 1 Proposal, if in default the protection is lifted and creditors have the legal right to pursue amounts owing to them.
Paying down the Proposal earlier is the ideal solution – no penalties, no interest, and once completed the credit rating can begin to improve. Paying down the Proposal earlier is the ideal solution – no penalties, no interest, and once completed the credit rating can begin to improve.

 

Proposal vs Bankruptcy

If we compare either type of Proposal to a Bankruptcy, the major advantage of the Proposals is that you retain all of your assets. Like a Bankruptcy, in either Proposal all actions launched against you by unsecured creditors (such as wage garnishments or frozen bank accounts) will be stayed (stopped). And once your creditors have agreed to your settlement offer, the dollar value of the settlement cannot change – even if you increase your monthly income, win the Provincial lottery or inherit a large sum of money from a distant relative.

 

Information provided by Farber Licensed Insolvency Trustees. Original post

 

Separation and the Matrimonial Home

Separation and the Matrimonial Home

On separation, parties often have to make hard decisions regarding how they will split assets, who will pay support, and how they will move on from the relationship.  At this time, one of the most contentious and difficult items to deal with is the Matrimonial Home.  Who gets to keep it? Will the kids remain there? Do we have to sell it? How much equity do we each get?

The matrimonial home is such a significant asset of the marriage that there is a whole section of the Family Law Act (FLA) devoted just to it (see part 2 of the Family Law Act) 

Keep in mind that these provisions only apply to Married spouses (see CL vs. Married spouse post).  Common law couples only have property rights as far as their title interest goes.  If you are common law, and you are not on title to the property, you will have to consider other equitable remedies such as a constructive trust or resulting trust claim through litigation if you want a part of the home.

First, it’s a good idea to understand what the matrimonial home is.  S.18(1) of the FLA defines a matrimonial home as:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

What’s interesting here is that more than one home can qualify as a matrimonial home.  This means that if you own a cottage that the family uses regularly at the time of separation, this could be considered a matrimonial home as well.

So what if you moved into a home different from the one you lived in when you got married? Remember that this rule applies to properties that at the time of separation were ordinarily occupied by the person and their spouse.  Any other property you owned during the marriage that you no longer live in ordinarily is treated differently.

What if you have property outside of Ontario? Do we apply the same “matrimonial rules”? Unfortunately no.  This rule only applies to homes in Ontario as s. 28(1) of the FLA indicates.

 

What rights do I have to the Matrimonial Home?

Under the FLA s. 19(1) – both spouses have an equal right to possession of the matrimonial home, regardless of who is on title to the home (the owner).  This is a right not against the home itself, but against the other spouse.  This doesn’t mean that you have a right to take title to the home, but that you can enforce a right to live in the home through courts via an order for exclusive possession.

This remedy is provided under s. 24(1) of the FLA This is an extreme measure.  This is an order from the court saying one spouse has to leave their own home; a place where people build their lives and find security, which is a significant reason why the matrimonial home has its own section under the FLA.

  1. 24(3) of the FLA provides criteria the courts will consider when granting an order for exclusive possession:
  2. the best interest of the children affected;
  3. Any existing orders under Part 1 (family property) and any existing support orders;
  4. The financial position of both spouses;
  5. Any written agreement between the parties;
  6. The availability of other suitable and affordable accommodation; and
  7. Any violence committed by a spouse against the other spouse or the children.

You also have a say in how the matrimonial home is to be disposed of or encumbered under s. 21(1) of the FLA.  Even if you are not on title, your ex spouse cannot sell the home, transfer it, or refinance it without your consent.

You are also entitled to the value of the home and how that is distributed.  See our post on equalization to understand how the home and other assets are distributed on separation.

Working with an Estate Planning Lawyer

You’ve finally decided that you are ready to put together an estate plan (preparation of wills, trusts, and power of attorneys etc.) but are not sure about what the process will involve.

Here’s a quick list of some items that you should be prepared for:

Get specific about your assets

  • There’s no estate plan without discussing financials. All assets need to be considered and reviewed along with designations which may need to be changed, updated, or revised. These include not only your home, investments, shares, or bank accounts but also things like life insurance policies, registered plans etc. Not giving these items attention could lead to problems.

Get clear on what you want

  • Who should inherit your assets after you pass away?
  • Who should be looking after your affairs (funeral, debts, taxes, administration and distribution).
  • Who is the best suited to look after your minor or dependent children?
  • Should you consider an insurance trust agreement in order to provide further protection?
  • Are certain life-interest trusts or spousal trusts (possibly in a second-marriage scenario) required to further protect what you’ve earned and to ensure that not only is your spouse is protected during his or her lifetime but the capital of the trust is reserved for other persons?

Get the right opinion

  • You likely have some thoughts on your plan and who it should benefit but aren’t sure about the right way of bringing them to life. The best way to sort out is to speak to a professional (lawyer, financial advisor, and accountant) with a focus in this area. An opinion from a qualified professional is invaluable in making the decisions that suit your needs and protect your assets.

Get writing

  • Generally, the first step is for you to fill out a questionnaire to provide personal information in order for us to be able to assess your needs and tailor the plan accordingly.

The above is only a general idea of what is involved. Feel free to call us to get the process underway.

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation and estate planning needs.

Child Custody and Access Introduction

One of the most significant concerns for parents, if not THE most significant concern, on separation is what will happen with the children.  Where will the child live? Who is going to make decisions for the child regarding their education, religion, or medical care? How much time will each partner spend with the children?

These questions are related to custody and access and this post will focus on those issues alone.  Child support issues are covered in our previous post here.

There are two different statutes dealing with custody and access in Ontario: the Divorce Act for married spouses, and the Children’s Law Reform Act (“CLRA”) for non-married and married spouses (see our post on married vs. Common law spouses for details on the difference between both types of relationships).

But what is the difference between custody and access? Are they not the same thing?

The person who is responsible for the child on a daily basis and makes daily decisions for the child is said to have custody of the child.  This can include decisions on things like: education, religion, and health care.  It does NOT automatically mean which parent the child will live with, although generally the person with sole custody is the parent with whom the child resides.

Access on the other hand is the ability to visit and ask for information regarding the child’s health, education, religion and general welfare.

When making a decision regarding custody and access, the courts will consider the “Best interests of the Child”, see s. 24(2) of the CLRA.  These include:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

With these two terms defined and a background on the best interests of the child, we can approach what types of custody and access there are.

 

Custody

S.20(1)  of the CLRA provides that both parents have equal entitlement to custody of the children. However this entitlement is limited by s.20(4) of the CLRA.  What this means is that if the child resides with one spouse and you decide to move out, you could effectively be giving away custody rights to your child.  However you do not lose access rights.

Parenting decisions post separation can be approached in multiple ways.  These can include the following:

Joint Custody
With this, both parents must agree on major decisions regarding the child.  This arrangement requires that both parents co-operate well together to ensure the children are raised well and it works best when both parents have the same values and ideals on how to raise the children.  The parents may even choose to divide the decision making responsibilities.  For example, one parent may take the responsibility regarding education decisions while the other makes decisions regarding health care.

Sole Custody
One parent makes all the important decisions regarding the child.  They may have to communicate with the other parent about the decisions, but ultimately the parent with sole custody does not need the consent of the other parent.  Usually, if there is sole custody the other parent has access.

Split Custody
Each parent has sole custody of one or more children.  This is a rare solution for custody as courts generally do not like to separate siblings.  This type of custody is usually provided where the children are older and can express their opinions about which parent they want to live with.  With that, if the court determines that this opinion of the child should be given considerable weight, they may then grant split custody.

Shared Custody
This term is usually confused with joint custody.  This type of custody is actually an access arrangement and does not indicate which parent has legal decision making power, although custody arrangements can be included here (which helps contribute to the confusion).  You can have shared custody whether or not you have joint custody.  With shared custody, both parents have the child for at least 40% of the time.  Essentially, the child’s time is split evenly between the parents.  This type of arrangement can also impact how much child support is to be paid (see child support post for more details).

Access

Under the s. 20(5) of the CLRA parents are entitled to visit and be visited by the child.  This also includes the right to make inquiries and be given information about the child’s health, education, and welfare.

Types of access include the following.

Reasonable Access – sometimes called liberal or generous
If parents are able to co-operate, then access can be left open and flexible.  This type of access is heavily customizable as both parents simply communicate and negotiate access on an on-going basis as they see fit.

Fixed or specified Access
This will include a detailed access schedule with dates and times for access to be exercised.  This can cover things such as: holidays, long weekends, birthdays and so on.  You can also identify where access will take place and who will pick up and drop off the children.

Supervised Access
This may be required if one of the parents demonstrates the following behaviour:

  1. Substance Abuse;
  2. Domestic Violence;
  3. Parental Alienation.

The person supervising the access can be a relative, friend, social worker, worker at a supervised access centre, or even a Children’s Aid worker.  This kind of access is generally only done on a temporary basis.  If it’s determined that the visits are benefiting the child and the parents respect the terms of the access orders, the access can progress to unsupervised access and can also gradually increase over time.

No Access
This is an extreme result where a parent might not be able to access the child at all.  An order for no access can result where there is serious neglect of the child, abuse, or if the child’s safety cannot be protected even if supervised.

Other custody and access issues

A parent cannot refuse access to the other parent unless there is a court order to that effect.  If a parent does refuse access to another without proper justification, that parent may be found in contempt of court.  If that behaviour continues, the parent refusing access could suffer serious ramifications.

Child support and access are two different things.  A parent cannot be denied access if support is not paid, and support would likely still need to be paid even if there is no access.  It is also possible for a non-parent to be given custody or access, but this must be determined in accordance with the Best Interests of the Child.

Parents have the ability to outline their desires in a Parenting Plan which can be included in a separation agreement.  See our post on separation agreements to learn more.

Estate planning for Separated Couples – reasons to get your will done or re-done

In Ontario, simply being separated from your spouse and not obtaining legal divorce may put your estate plan in jeopardy. Section 17(2) of the Succession Law Reform Act (“SLRA”) provides that for parties that have obtained legal divorce, any reference to a former spouse in an individual’s will is revoked and the will is construed as if the former spouse had predeceased the testator (party preparing the will). This is helpful due to the simple fact that after divorce, there is clearly a shift in interests and priorities and the law protects you in this regard. However, unlike the provision protecting those who obtain a divorce, there is no similar provision in a situation where spouses are just separated. That being said, it is a common misconception to believe that if you are separated, your ex-spouse will not inherit anything.

In fact, where spouses are separated (assuming no update to the will) and one party passes away, the surviving spouse maintains his or her entitlement under the will. The result is not much different if there was no will to begin with – the separated spouse may still qualify under the definition of a “spouse” under the intestacy rules.

A simple example may serve to bring the point home: if you have separated from your spouse (and not obtained a divorce) and own property jointly, the property may pass to the former spouse automatically. A visit to the lawyer’s office can prevent this from happening so that your portion of the property passes on to whom you intend. This may be to provide for your children, your siblings or even your new common law partner.

Along with preparing or revising an existing will, upon separation, one must ensure they update their insurance policies, registered plans, and any pensions. Further, unless you want your separated spouse to be able to make your property and personal care decisions, you must attend to preparation of your power of attorney documents as well.

Since separation can drag on for some time, individuals need to ensure they take a close look at their assets and related estate documents to avoid unintended consequences.

The above serves as general information only and is not to be relied on as legal advice. Please contact your lawyer for your specific circumstances.