Aug 25, 2023
When your spouse passes away, you often have way too much on your plate to worry about money. However, once the time comes to deal with your finances, it is important to know what options you have available under current Ontario legislation.
If your spouse had a valid Will when they passed away, you can easily collect your entitlement. However, if for some reason this is not what you were hoping for, rather than challenging the Will or going through the trouble of a dependant support claim, you can choose to use the Family Law Act (FLA) to your benefit.
Under s.6 of the FLA, surviving spouses have the right to choose between their entitlements under the Will, or claiming an ‘equalization payment’ as if they were getting a divorce. This is called spousal election.
Now, determining the value of an equalization payment can be a little tricky, especially once tax implications become involved. Generally speaking, this payment will be comprised of the difference between each spouse’s net family property (NFP). If the deceased spouse has a higher NFP, the surviving one is entitled to that difference.
Therefore, it is in the surviving spouse’s best interest to minimize the value of their NFP as much as possible.
Deducting Disposition Costs in NFP Calculations
If there is a large asset that will be expensive to liquidate, a common issue is how to add this to the NFP. Can this asset’s value be reduced by listing the ‘capital gains’ as a liability, even if the asset is not disposed of just yet?
This was one of the issues in a 1994 Ontario Court of Appeal case called Sengmueller v. Sengmueller. Here, it was noted that tax consequences are appropriate to take into account when determining net family property amounts.
However, strict rules apply:
- “There must be satisfactory evidence of a likely disposition date of the assets.”
- “The costs of disposition will be inevitable when the owner disposes of the assets or is deemed to have disposed of them regardless of whether the asset needs to be realized to make an equalization payment.”
So, for example, if a surviving spouse is about to sell her home, ‘capital gains’ can be listed as a liability as of valuation date, regardless of whether she needs to sell the home or not. As long as there is enough evidence that the sale of the home is likely, the costs of this sale can be used to reduce her NFP.
This was more recently affirmed in Tremblay v Tremblay, where the court acknowledged that ‘disposition costs should be deducted in determining the value of an asset for equalization purposes unless it is unclear when, if ever, the value of the property will be realized.’ It was determined that ‘the value of the asset for equalization purposes is the net value after tax and other disposition costs’.
So, make sure to keep this in mind when deciding between spousal election or collecting your entitlement under the Will – sometimes tax law makes all the difference!
Colleen Dowling
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 30, 2023
Choosing to act as an incapable person’s attorney or guardian of property is a considerable and important responsibility. Part of that responsibility is keeping a clear record of all money coming into and leaving the incapable person’s hands. Pursuant to section 32(6) of the Substitute Decisions Act, attorneys and guardians of property are required to keep accounts of all transactions involving the property of the incapable person.
It is important for guardians to maintain accurate, thorough accounts for several important reasons. First and foremost, keeping proper accounts is a part of a guardian’s fiduciary duty to the incapable person and the legislation requires that you do so. Second, keeping thorough accounts can protect you from personal liability if you are required to pass your accounts. Third, the guardian’s compensation is tied directly to the incapable person’s receipts and disbursements.
Below are some helpful tips for guardians and attorneys keeping accounts:
1. If possible, speak with the grantor of the Power of Attorney prior to that person becoming incapable. Discuss their wishes, assets, and where they are keeping their will. Continue these conversations after you begin acting as an attorney or guardian and encourage your loved one to participate, to the best of his or her abilities, in your decisions about their property.
2. Review the Power of Attorney document. Often the Power of Attorney will stipulate whether there are any limitations on how you can manage the incapable person’s property.
3. If you are a guardian for property, you must follow the court-approved Management and Guardianship Plans. If any material change is required to your Management Plan, you should prepare an amended Management Plan and submit it to the Public Guardian and Trustee for approval.
4. Locate and review the incapable person’s Will. If property is specifically gifted in a will, it cannot be sold unless it is necessary to care for the incapable person.
5. When you are named guardian or begin acting as an attorney, make a list of all the incapable person’s assets (whether solely or jointly owned). Assets include real estate, money, securities, investments, motor vehicles, other personal property, etc.
6. Keep a record of all transactions you make on the incapable person’s behalf. It is important that you keep a copy of all receipts and bank statements. These can be maintained in a binder, or scanned into an electronic folder regularly. If maintaining these digitally, ensure that your files are backed up.
7. Keep the incapable person’s financial accounts and transactions completely separate from your own.
8. Consult regularly with the incapable person’s supportive family members and friends about decisions that you make with respect to the incapable person’s property.
9. Most importantly, the incapable person’s comfort and well-being should guide each decision that you make with respect to their property. You are required to exercise your fiduciary duties diligently, with honesty and integrity, and in good faith for the incapable person’s benefit.
10. You have a right to seek advice and direction from the court to deal with questions about your obligations, and the incapable person’s legal rights. This is not meant to displace your duty to make tough decisions as a substitute decision maker, but to provide you with judicial guidance in complex situations.
Rebecca Suggitt
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 20, 2023
All of us at Casey & Moss are thrilled that our firm was voted as one of the Top 10 Wills, Trusts, and Estates Law Boutiques in Canada for 2023-2024. It is an honour to be recognized for a second time by our esteemed peers and colleagues in the Estates Bar.
Comments from referring lawyers and clients who participated in Canadian Lawyer’s survey spotlighted Casey & Moss’s strengths:
- “Each partner is a strategic, intelligent and fantastic lawyer.”
- “As a former client, I can attest to their quality of work and attention to their clients; they always strive for the best outcomes and are a head above the rest.”
- “Superb client service, reasonable bills, zealous but settlement-oriented advocacy.”
- “I was opposing counsel, and we efficiently resolved the issues for our clients. It was a pleasure to work with counsel, and what a rarity that is when you’re at opposite ends of the table.”
The firm distinguishes itself from others with its low staff turnover and a clear and concise purpose.
Click here to read the full article on Canadian Lawyer.
