When a loved one dies with Ontario real estate but probate was completed in the U.S.

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When a loved one passes away owning property in Ontario, but their Will is probated in a U.S. state such as Florida, you might assume that the U.S. probate documents will be enough to handle the sale or transfer of the Ontario property. Unfortunately, that’s not the case.

Ontario law requires a separate Ontario court grant before you can deal with Ontario real estate. Without it, the Ontario Land Titles Office and the buyer’s real estate lawyer will not accept your authority to sell the property.

In this post, we explain why U.S. probate isn’t enough, what Ontario requires, how this differs from “resealing,” what probate tax (Estate Administration Tax) you’ll pay, and how to avoid common mistakes—complete with a real-world example.

Resealing vs. Ancillary Probate in Ontario

Ontario recognizes two different paths for foreign probate grants:

1. Resealing

  • Used when the original grant is from another Canadian province/territory, the U.K., or another Commonwealth jurisdiction.
  • Ontario simply “reseals” the foreign grant so it is effective here—no need to repeat the probate process.

2. Ancillary Appointment (With Will)

  • Required for non-Commonwealth grants, such as those from U.S. courts.
  • Ontario issues a Certificate of Ancillary Appointment of Estate Trustee With a Will (Form 74.29).
  • The application relies on court-certified copies of the foreign probate grant and the Will, along with Ontario-specific requirements like probate tax and estate asset disclosure.

If you’re dealing with a U.S. probate, you’ll almost always need an Ancillary Appointment before taking any steps to sell or transfer Ontario property.

What You Must File in Ontario

To obtain an Ontario Certificate of Ancillary Appointment, you must file:

  • Application for Certificate of Ancillary Appointment (With Will) under Rule 74.
  • Court-certified copies of the U.S. grant and the Will.
  • Certified proof of death (e.g., death certificate).
  • Ontario estate value statement and payment of Estate Administration Tax (EAT).

Note on bonds: If the executor is non-resident, the court may require an administration bond unless you apply to have it dispensed with. This is best addressed early to avoid delays.

Ontario’s Estate Administration Tax (“Probate Tax”)

Ontario charges Estate Administration Tax (EAT) based on the value of Ontario assets:

  • $0 on the first $50,000 of estate value.
  • $15 per $1,000 (1.5%) on the value over $50,000.

When filing an ancillary application, EAT is calculated only on Ontario-based assets (you do not pay Ontario tax on non-Ontario assets).

Real-World Example: Florida Probate → Ontario Property

Scenario: Janet probated her mother’s Will in Florida. Her mother owned a cottage in Ontario. Janet asked whether the Florida grant could be used to sell the Ontario property.

Answer: Ontario does not accept U.S. probate orders. Janet must apply for an Ontario Certificate of Ancillary Appointment (With Will). She will need:

  1. Court-certified copies of the Florida grant and Will.
  2. Certified death certificate.
  3. Ontario property details (legal description, PIN, municipal address, and value for EAT).
  4. Bond considerations if she, as executor, is non-resident.

Outcome: With the Ontario ancillary certificate, Janet can confidently list and sell the Ontario property. The Land Titles Office and the purchaser’s real estate lawyer, as well as her real estate lawyer will recognize her authority to sell the property. 

Common Pitfalls (and How to Avoid Them)

  • Sending the original Will out of the U.S. court file: Ontario accepts court-certified copies—never risk losing the original.
  • Using the wrong process: U.S. grants require ancillary probate, not resealing.
  • Ignoring Ontario probate tax: Budget and pay EAT upfront to avoid delays.
  • Bond surprises: If you are a non-resident executor, identify the bond requirement early and, if appropriate, have your lawyer apply to dispense with it.

How Rabideau Law Can Help

At Rabideau Law, we regularly assist U.S. executors with Ontario estates. Our services include:

  • Strategic guidance on the right process (reseal vs. ancillary).
  • Preparation and filing of all Ontario court documents.
  • Bond relief applications to save you the cost and hassle of security.
  • Virtual real estate closings, so you can sell the property without ever travelling to Canada.
  • End-to-end management, from probate to closing, ensuring you meet Ontario’s legal requirements quickly and efficiently.

If you’re a U.S. executor facing Ontario property issues, contact Rabideau Law today—we make cross-border estate administration seamless.

Can Ontario Seniors Claim Property Taxes Paid on a Life Lease?

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At Rabideau Law, we regularly receive questions from seniors and their families about the tax treatment of life leases in Ontario. One common question is:
“If I’m a senior living in a life lease, can I claim the property taxes I pay?”


The short answer:
✅ Yes — but not as a deduction on your tax return.
Instead, Ontario offers two specific tax relief programs that allow eligible seniors to benefit from the property taxes paid on their life lease residence.

Understanding Life Leases

A life lease is a unique form of residential occupancy where an individual pre-pays for the right to occupy a unit for life (or for a set term), but without actually owning the real estate. While you may not hold title, many life lease agreements include a responsibility to pay a portion of the property taxes for the development.

Thankfully, Ontario recognizes this when determining eligibility for certain tax relief programs.

1. Ontario Senior Homeowners’ Property Tax Grant (OSHPTG)

The OSHPTG is designed to provide direct financial support to seniors who pay property taxes on their principal residence.

Eligibility Criteria:

  • You were at least 64 years old on December 31 of the tax year.
  • You lived in Ontario at the end of the year.
  • You occupied a principal residence (including a life lease of 10+ years) and paid property taxes.
  • Your income falls below the program’s maximum thresholds.

How Much Can You Receive?

  • The maximum annual grant is $500.

How to Apply:

  • File your Ontario personal income tax return.
  • Complete Form ON-BEN.
  • Report your property tax amount in the relevant section of the return.

2. Ontario Energy and Property Tax Credit (OEPTC)

The OEPTC provides additional relief for both energy costs and property taxes paid, including those paid by life lease residents.

Eligibility:

  • You were a resident of Ontario on December 31.
  • You paid property taxes or occupied a qualifying residence (including life leases).
  • Income thresholds apply.

Credit Amounts:

  • Seniors may receive up to $1,144 annually based on their specific circumstances.

Application:

  • The OEPTC is also claimed on Form ON-BEN filed with your personal tax return.

Important Note: This Is Not a Deduction

Neither the OSHPTG nor the OEPTC are “tax deductions” that reduce your taxable income. Instead, they are non-taxable credits and grants paid directly to you after filing your return.

You cannot claim property taxes paid on a life lease as an expense or deduction like you might for business or rental purposes. These are personal credits for principal residence occupancy only.

How Rabideau Law Can Help

Navigating life leases and understanding eligibility for various government programs can be complex. At Rabideau Law, we regularly assist seniors, retirees, and families with:

  • Reviewing life lease agreements to clarify financial obligations.
  • Advising on eligibility for government grants and credits.
  • Estate and succession planning involving life leases.
  • Real estate transactions when entering or exiting life lease arrangements.

If you or a loved one is considering a life lease or seeking advice on Ontario’s property tax credits, contact Rabideau Law today for professional, clear, and personalized legal guidance.

519-957-1001
rabideaulaw.ca

What a Homeowner Must Do Before Using Force in Canada

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Unlike the U.S. castle doctrine, Canadian law does not presume that a homeowner can automatically use force when an intruder enters. Instead, the Criminal Code (ss. 34–35) requires that several conditions be met.

1. Assess the Situation

The homeowner must first believe, on reasonable grounds, that they or another person are being threatened with force, or that property is at risk of being damaged or stolen. Mere trespass, without threat, does not usually justify force.

2. Attempt to Avoid Violence (If Possible)

While Canada does not impose a strict “duty to retreat,” courts expect homeowners to consider non-violent options first:

  • Calling police or security
  • Issuing a verbal warning (e.g., “Get out of my house”)
  • Securing themselves and others in a safe area if escape is possible

If a homeowner rushes to violence without trying other measures, the use of force may later be found unreasonable.

3. Use Only the Force Necessary

If force becomes unavoidable, the law requires it to be reasonable and proportionate to the threat.

  • Minimal force (like physically ejecting a trespasser) is permitted to protect property.
  • Escalating to weapons or deadly force is only justified if the intruder poses an imminent threat to life or serious bodily harm.

4. Deadly Force = Last Resort

Lethal force may only be used if the homeowner reasonably believes it is the only way to stop a threat of death or grievous bodily harm. Protecting property alone (like a vehicle, electronics, or cash) never justifies deadly force under Canadian law.

Judicial Considerations

When courts evaluate a homeowner’s actions, they look at factors such as:

  • Immediacy of the threat — Was the intruder armed? Advancing?
  • Options available — Could the homeowner retreat or call for help?
  • Proportionality — Was the force used excessive compared to the threat?
  • Role of the homeowner — Did they instigate or escalate the conflict?

These checks mean Canadian law emphasizes restraint and necessity, not a blanket right to defend property at all costs.

Canadian Case Examples

Canadian courts have already faced difficult decisions in homeowner defence cases. Here are two examples that illustrate the limits of the law:

Example 1 – Homeowner Found Not Guilty

In R. v. Khill, 2021 SCC 37, a Hamilton-area homeowner was charged with second-degree murder after fatally shooting an intruder who was trying to break into his truck at night. The Supreme Court of Canada ultimately ordered a new trial but emphasized that self-defence is highly context-dependent: the jury must consider what the accused reasonably perceived at the time. While Khill was not outright acquitted at the SCC level, the case reflects how a homeowner can successfully argue they acted in defence of themselves and their property when they reasonably feared for their safety.

Example 2 – Homeowner Found Guilty

In R. v. Deegan, 2007 ONCA 81, an Ontario man shot and killed an unarmed intruder who had broken into his home. The intruder posed no immediate lethal threat, and the court found the homeowner’s response to be disproportionate. Deegan was convicted of manslaughter, showing that Canadian courts draw a firm line: force may be used to defend property, but not deadly force unless there is a clear threat to life.

Conclusion

Canadian law makes it clear: defending your home is not the same as having an automatic right to use force. Before acting, homeowners must assess the situation, consider non-violent alternatives, and ensure that any force used is both necessary and proportionate. Deadly force remains an absolute last resort, available only when life or serious safety is immediately at risk.

Cases like Khill and Deegan highlight the fine line Canadian courts draw between justifiable self-defence and criminal liability. For property owners, the lesson is simple: while your home may feel like your castle, the law requires restraint and responsibility before force can be used.

At Rabideau Law, we help homeowners, landlords, and investors understand not only their real estate rights, but also how those rights interact with broader Canadian laws. If you have questions about protecting your property and your interests, our team is here to guide you.

Airbnb Conversion Triggers HST on Resale: A Cautionary Tale from the Tax Court of Canada

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A recent decision by the Tax Court of Canada has made it clear that turning your long-term rental into an Airbnb could trigger a significant and unexpected GST/HST liability on resale.

In 1351231 Ontario Inc. v. The King, 2024 TCC 37, the Court upheld a CRA assessment of over $80,000 in GST/HST, finding that a condominium unit—originally used for long-term residential rentals but later listed on Airbnb—no longer qualified as a “residential complex” under the Excise Tax Act (ETA). As a result, the subsequent sale of the unit was fully taxable.

This case underscores how seemingly small operational changes in the gig economy—like switching to short-term rentals—can result in major tax consequences.


The Facts

  • In 2008, the corporation purchased a used residential condo unit in Ontario, treating the purchase as HST-exempt, based on its intended use as a long-term residential rental.
  • For nine years, the condo was leased under a series of tenancies longer than 60 days—residential leases that are exempt under section 2, Part I, Schedule V of the ETA.
  • In 2017, the corporation began renting the unit out through Airbnb, typically for periods shorter than 60 days.
  • In 2018, the unit was sold, and the corporation once again claimed the sale was exempt from HST.
  • The CRA reassessed the corporation, arguing that the Airbnb use disqualified the unit from being a residential complex, making the sale taxable.

The Tax Court agreed with the CRA.


What Is a “Residential Complex” Under the ETA?

For a property sale to be HST-exempt under the ETA, it must qualify as a “residential complex.” This is generally true for used housing that has been leased long-term.

However, the ETA contains a critical exception: if the property is used as a hotel, motel, inn, boarding house, lodging house, or similar premises, and 90% or more of the use is for rentals under 60 days, then the exemption is lost.

The Court concluded that:

  • Airbnb use falls under “similar premises.”
  • The short-term nature of Airbnb stays meant “all or substantially all” of the use was for periods of less than 60 days.
  • Therefore, the unit no longer qualified as a residential complex.

But the real twist came from the corporation’s legal argument under section 197 of the ETA.


Section 197: The Corporation’s Argument—and Why It Failed


The corporation argued that even though short-term rentals occurred in the final year, they only made up a small fraction of the total use of the property during the entire time it was held. For nine years, the unit was used for long-term residential rentals, and only the last year involved Airbnb. Based on this, the corporation turned to section 197 of the ETA.


What Is Section 197?

Section 197 deals with changes in a property’s use after it has already been used in a commercial activity. Specifically, it provides rules for adjusting Input Tax Credit (ITC) eligibility and is used to apportion credits if a property is later used in an exempt activity (like long-term residential leasing).

The corporation claimed that section 197 deemed the entire use of the unit to be 100% exempt activity (i.e., long-term leasing), because that use predominated over the full ownership period. If this were accepted, the property would still qualify as a residential complex and the sale would remain exempt from HST.


Why the Court Rejected the Argument

The Tax Court rejected this interpretation for three reasons:

  1. Misapplication of Section 197’s Purpose
    Section 197 is designed to deal with adjustments to ITCs—not to recharacterize the nature of property use for the purpose of defining a “residential complex.” It governs the mechanics of credit allocation after a use change has occurred—not whether a property qualifies for an HST exemption on sale.
  2. Timing of Use Matters
    The ETA looks at the nature of use immediately prior to sale, not cumulatively over the property’s lifetime. Because the unit was being rented short-term via Airbnb when sold, that use was controlling.
  3. Section 206(2) Takes Precedence
    The first time the unit was offered on Airbnb constituted a “change in use” under section 206(2). At that point, the property transitioned to a commercial activity (short-term lodging), and the tax consequences followed. Once that change occurred, section 197 could not override it to retroactively deem the use exempt.


Key Takeaways for Property Owners and Airbnb Hosts

  • Airbnb = Commercial Use. Even partial or late-stage use for short-term stays can transform a property into a taxable asset under the HST regime.
  • Loss of Residential Complex Status. A property loses its exemption if 90%+ of its use is short-term—even if long-term use predominated earlier.
  • No Rescue via Section 197. This provision cannot be used to “wash out” the effect of short-term rental use prior to sale.
  • Watch for CRA Scrutiny. The CRA is actively auditing property owners for improper treatment of short-term rentals under both GST/HST and income tax legislation.


How Rabideau Law Can Help

Whether you’re listing a condo on Airbnb, planning a sale, or facing a CRA assessment, our team is here to help:

  • Analyze your property’s use and HST status
  • Assess potential tax exposure under the ETA
  • Structure transactions to minimize tax risk
  • Navigate CRA audits and respond to assessments

Before listing or selling a rental unit, talk to us. A quick consultation could save you thousands in unplanned HST liability.

Contact Rabideau Law today to protect your property and your bottom line.

*This article is provided for informational purposes only and does not constitute legal or tax advice. Please consult with a qualified professional to discuss your specific situation.*

Rabideau Law Food Drive 2019

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We are proud to announce that we will be holding a Food Drive from November 1st-29th in support of The Food Bank of Waterloo Region. 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 […]

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Dont forget to Vote! Canada Federal Election 2019

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Custody and Access: Parental Alienation

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