Summary Judgment in Family Law Proceedings: Where Are We Now?

by | Sep 4, 2020 | Family Law, News, Sean M Sinclair

Summary Judgement in Family Law Proceedings: Where Are We Now? (CPD 259)

Join Sean Sinclair (Robertson Stromberg) for this informative discussion about summary judgment in family law proceedings. The “new Rules of Court” were introduced with considerable fanfare and with the potential to assist litigants seeking timely and cost-effective access to justice. Among the changes was the development of a summary judgment procedure to avoid the needless expense and time of a trial. In the family law realm, the summary judgment process was potentially a tool to allow families to obtain affordable judicial finality. At the now seven year mark of the introduction of the “new Rules”, this webinar will explore the reported cases and developments regarding summary judgment in family law proceedings with an eye on whether the summary judgment process has been successful in promoting timely and cost-effective access to justice.

September 15 (Online) | 12:00 – 1:00 PM

Qualifies for 1 CPD Hour

Register Here

Why Do I Need a Will?

by | Sep 3, 2020 | Articles & Research, Ben W Parsonson, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

A commonly asked question is why do I need a will? Your will sets out what is to happen to your assets (more commonly known as your estate) when you pass away. If you pass away without a will then your estate falls into what is called intestacy. An intestate estate puts more strain and stress on your loved ones as they will first have to all agree upon and determine who will administer the estate and then do so in the absence of a formal will.

Administering an intestate estate often involves more steps than one with a will and also makes the estate subject to The Intestate Succession Act, 2019 (the “Act”) for determining who stands to benefit from your estate. The Act not only sets out who is to benefit from your estate but also in what proportions, regardless of what you may have otherwise wanted. Having a proper will therefore not only makes it easier to obtain letters probate from the court but also control who is to benefit from your estate and in what way. Failure to have a properly drafted will can also lead to more conflict and expense as loved ones argue over what they believe your testamentary intentions were.

Having a properly drafted and executed will is beneficial for your loved ones to ensure that your intentions are met, and they are looked after. A properly done up will along with appropriate estate planning can also save your estate money, ultimately leaving more for your loved ones. It can also assist them sooner in ensuring your assets from your estate flow to them in a more expeditious manner.

For more information on having your will prepared or estate planning, please contact Ben Parsonson at [email protected] or at 306-933-1353.

Using home inspectors as insurance for a home purchase- Think again

by | Aug 31, 2020 | Articles & Research, Construction, Jared D Epp

For many people buying a new home is one of the most significant financial decisions they will make in their life. To safeguard this investment, many people choose to hire home inspectors. What happens when a home inspector misses something was the subject of a recent case in Saskatchewan known as Smith v Hawryliw.

In this case extensive mould and fire damage was discovered in a home months after the buyer had moved in. As the buyer had retained a home inspector prior to purchasing the property, the home inspector was sued. In defending the claim, the home inspector relied on a limitation of liability clause that was contained within the Home Inspection Agreement. This clause limited the home inspector’s liability to the amount paid by the buyer for the home inspector’s services. In arguing that this limitation clause should not apply, the buyer claimed that the home inspector had an obligation to bring the clause specifically to her attention before she signed the agreement. The judge, however, rejected this argument holding that the clause was written in plain language and was right above the buyer’s signature line on the agreement.

As the fee for a home inspection will often amount to only a few hundred dollars, any type of clause that limits a home inspector’s liability to the amount of its fee will significantly impact a buyer’s ability to recover costs expended to repair items that were missed during a home inspection. Given this, a home inspector should not typically be looked to as “insurance” on a home purchase. Rather, if a buyer has serious concerns or reservations about purchasing a home, especially with things like a home’s foundation or structure, other professionals (ex. engineers) should be looked to for assistance instead.

For more information, please contact Jared D. Epp at 306.933.1326 or email [email protected] 

 

I have a business idea, now what?

by | Aug 20, 2020 | Articles & Research, Small Business

I have a business idea… Now what?

So, you have an idea and are ready to launch a business. What do you do next? You can start by reading this article. Below are a few things to consider when you are looking to start your own business:

 

1) Determine how you want to structure your business:

There are several ways to structure a business. The three basic ways are though a sole proprietorship, a partnership, or a corporation. Each of these structures have different legal characteristics and are treated differently from a tax perspective. These structures are briefly described below:

Sole Proprietorship: A sole proprietorship exists whenever an individual engages in business in his or her own capacity. All benefits and liabilities of the business are also the benefits and liability of the sole proprietor. Therefore, the sole proprietor is personally responsible for all of the obligations of the business and is liable for any wrongdoing of the business. On the other hand, it is generally less costly to operate a sole proprietorship.

Partnership: A partnership is a form of business organization where multiple persons carry on a business in common with a view of profit. A partnership is not a legal entity separate from its partners and, generally, each partner in the firm is jointly liable with the other partners for all debts and liabilities of the firm. The legal relationship between partners is often governed by a partnership agreement.

In Saskatchewan, there is also the ability to create a limited partnership, which is a form of partnership that provides limited liability to certain partners. A limited partnership consists of one or more persons or entities who are “general partners” and one of more persons who are “limited partners”. Only the general partner is liable for the obligations of the partnership, and the limited partners have no liability beyond the amounts they contribute to capital. However, in exchange for this limited liability, the limited partners must be passive investors and cannot take part in the management of the business.

Corporation: A corporation is a legal entity separate from its shareholders and the individuals who operate the business of the corporation. Some advantages of operating a business through a corporation include limited liability to shareholders (in other words, the shareholders are not liable for the obligations of the corporation) and advantageous tax treatment.

The above is only a brief overview of these business structures. Before making a decision on which structure is best, it is advisable that prospective business owners discuss each structure in detail with their legal and tax advisors.

 

2) Reserve and register the business name:

If you wish to operate your business under a business name, there is a specific process that must be followed to search the name (to ensure another business is not using the same or similar name), reserve the name, and register the name in the appropriate public registry.

 

3) Obtain a Provincial Sales Tax (PST) Number

All business operating in Saskatchewan must be registered with the Ministry of Finance to obtain a PST number. PST must be collected and remitted by a vendor of a retail sale of certain property or certain services in Saskatchewan, and failure to do so may result in a large tax bill along with interest and penalty payments.

 

4) Register with the Saskatchewan Worker’s Compensation Board (the “WCB”)

All employers engaged in any industry in Saskatchewan (except farming/ranching or any other prescribed industries) who hire workers an a regular, casual or contractual basis must register with the WCB. Employers in Saskatchewan who are subject to workers’ compensation legislation must report work-related injuries that require medical attention to the WCB and pay assessed amounts to the WCB.

 

5) Review land use and zoning bylaws

Municipalities and cities may enact bylaws which regulate the development and use of land within those municipalities or cities. Any business owner operating in Saskatchewan should ensure that his or her business conforms to any land use or zoning bylaws within the applicable municipality or city.

 

6) Obtain the appropriate business licence

Persons operating a commercial or industrial business will need to obtain a commercial business license and/or a non-resident business license in the city/municipality in which they operate.

Starting your own business can be daunting, but the legal advisors at Robertson Stromberg LLP can help you navigate through these steps and get your business off to a great start.

 

For more information, please contact Jon Ponath at 306.933.1365 or [email protected]

Am I in a Common-Law Relationship?

by | Aug 17, 2020 | Articles & Research, Family Law

In Saskatchewan, The Family Property Act and The Family Maintenance Act defines “spouse” as either two persons who are legally married or have been cohabiting with the other person as spouses continuously for at least two years (often referred to as a “common-law relationship”). This means that once you have cohabitated with another person continuously for at least two years, the same rights arise under these acts as couples who are legally married. Meeting the above definition of spouse triggers certain rights and obligations with respect to property owned both together and individually as well as support.

Unlike legal marriage where you have a definite ‘start’ date, the date when people commence cohabitation is dependant on several factors and may not necessarily be when one or both persons think. There are also many misconceptions about preventing the ‘cohabitation clock’ from starting which includes: not changing your address, filing a tax return as single, keeping separate bank accounts, owing/maintaining separate homes or paying the other person rent.

There are several factors that the Court will consider when determining if two people are cohabitating as spouses and when it commenced. These include:

  • Do they live together?
  • What are the sleeping arrangements?
  • Do they have an exclusive relationship with one another?
  • Do they eat meals together?
  • What are their feelings toward one another?
  • What is the conduct between them about:

    • Preparation of meals;
    • Washing of clothes;
    • Shopping for groceries; and
    • Household upkeep and maintenance.
  • Do they participate together or separately in activities, including but not limited to, work functions, weddings, family gatherings, etc.
  • How do their neighbours, co-workers, friends, families view the couple?
  • What are their financial arrangements or attitudes?

The above list is not exhaustive and no factor is determinative. Courts will still examine the relationship as a whole to make their determination. It is also important to note that a temporary break-up or separation does not necessarily restart the ‘cohabitation clock’.

Couples can enter into a Cohabitation Agreement which is a contract made between them allowing them to protect their individual assets and set out what rights and responsibilities each person has should the relationship end in the future. A Cohabitation Agreement can be tailored to a couple’s specific needs and requires each person receives independent legal advice with respect to the Agreement.

If you have further questions about your rights and obligations under The Family Property Act and Family Maintenance Act, the definition of ‘spouse’, cohabitation, or Cohabitation Agreements, Robertson Stromberg’s team of Family Law lawyers would be happy to assist you.

How are lawyers involved when purchasing a home?

by | Jul 28, 2020 | Articles & Research, Curtis P Clavelle, Lawyers, Residential Real Estate

For many first time home buyers, purchasing a home can take a lot more time and effort than anticipated.  Finding a home is hard enough, but what needs to be completed afterward can be confusing and time-consuming.

This article will discuss the steps involved in completing a real-estate transaction after a deal has been reached, and things to bear in mind.

After your offer is accepted on a home, you need a lawyer to ensure all necessary paperwork is completed prior to your possession day.  You do not want to be a purchaser scrambling the day before possession to meet the requirements of your lender.

Concurrent or prior to making an offer on a home, you will usually deal with a mortgage broker or bank directly to obtain a mortgage. Once your financing is in place, the following is a list of the steps and documents involved leading up to possession day from a legal perspective:

  • Confirmation of financing and mortgage instructions from the lender must be provided to the lawyer. If you are dealing through a mortgage broker, the lawyer and mortgage broker will usually work together to ensure instructions are received. If not, you will need to follow up with the lender to have mortgage instructions sent to your lawyer.
  • Confirmation that adequate insurance is in place for the home on your possession day. This is always required by the lender, or else mortgage funds will not be advanced.
  • An estoppel certificate is required if the property is a condominium.
  • Once the lawyer receives the mortgage instructions, the mortgage and all required paperwork is prepared. Bear in mind that this takes time to do i.e. the lawyer will need the mortgage instructions at least several days prior to the possession date, ideally a week or more.
  • The lawyer then determines the “cash to mortgage”. This is the amount of funds over and above the mortgage you will have to pay for the home, legal fees, property taxes, land title fees to transfer title, Canada Mortgage and Housing insurance premiums (if applicable), etc.
  • A component of “cash to mortgage” is interest that will be paid to the seller. Interest generally must be paid on any purchase where a mortgage registered and the sale agreement provides for the same. On the possession date of your new home, your lawyer will have the “cash to mortgage” but he/she will not yet have the mortgage funds. The mortgage funds cannot be requisitioned until the title has registered in your name. As a result, most real estate agreements require the purchaser to pay the lender interest for the short time period when the seller does not have the sale proceeds in their entirety. Therefore, you pay interest on the amount they are owed during the first few days that you have possession. This does not result in double payment of interest, as interest does not accrue on your mortgage until it is registered.
  • You then meet with the lawyer to sign all requisite documents and provide the cash to mortgage to the lawyer. You will have to bring identification, a certified cheque/bank draft for the cash to mortgage, and banking information for property taxes and mortgage payments and proof of insurance.  The lawyer handles registering you for monthly tax installment payments to come directly from your account, interest free, if the municipality you are purchasing in offers such a program.  However, there are certain instances where property taxes must be paid to the mortgage company, who then pays the taxes on your behalf.
  • The lawyer then transmits the cash to mortgage to the seller’s lawyer. Once the cash to mortgage is received by the seller’s lawyer, you are generally good to go for possession day.
  • The lawyer then registers the transfer of title. Once title issues in your name, the lawyer requests the mortgage funds, which are then provided to the seller’s lawyer. This largely completes the transaction.

As you can see, it takes some time to ensure all the pieces are in place before you can take possession of your new home.  It is important to give yourself adequate time prior to possession day to ensure these things are complete, or else you risk possession day being pushed back or losing your deposit for failing to complete the transaction as agreed

For further information, please contact:

Curtis P. Clavelle
Direct: 306-933-1341
Email: [email protected]

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