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Don’t be afraid of a Power of Attorney

By Estates, Power of Attorney

A Power of Attorney Gives You the Control You Need

What is a Power of Attorney?

A power of attorney is a legal document that grants another person control of your finances, property, and medical decisions in the event that you are incapacitated. It allows you to appoint someone you trust to make important decisions for you and act in your best interest.

What Rights Will I Lose?

When you sign a power of attorney, you will not lose any of your rights or responsibilities. You are still in charge of your affairs and will retain all decision-making power. Your appointed person will only act when you are unable to do so or when you want them to.

Who Should I Appoint?

The person you appoint should be someone you trust to make decisions in your best interests. It is important to make sure they are aware of and understand your wishes, and that they are reliable and trustworthy.

We’re always happy to answer questions about estate plans and powers of attorney. Give us a call and we’ll chat.

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Getting legal advice on your retirement package

By Employment Law

Retirement can approach people in different ways. Whether it is through an employee’s natural conclusion to their working days, or through a form of pseudo termination by an employer looking to pare down staff, retirement is something that everyone in Manitoba needs to consider no matter what stage of their career they are in. Many people here in Manitoba are starting to contemplate retirement and wondering if their retirement package is fair. It is important for anyone who is facing the prospect of retirement forced or otherwise, to be aware of what they are entitled to. Let’s talk about getting legal advice on your retirement package.

Ever wondered if your retirement package was fair?

When presented with any retirement package, you should review it thoroughly to make sure it includes everything that you are looking for. You may be able to negotiate a better deal. There are a number of factors which will impact what you are entitled to in any retirement factor but age will have the most significant impact on your retirement package. The more experience you have, the more valuable it will be for an employer to keep you on board as long as possible. However, if you’re nearing or already within retirement age, it could work against you if your employer wants to get rid of their obligations as soon as possible by offering a smaller pension payout and other benefits.

If this sounds like something that might happen in your future, then maybe it’s time for some financial planning now so that you can ensure your future is secure regardless of what happens at work later down the road! You could consult with an advisor who can help calculate how much tax-free income from government sources will be available during retirement (i.e., Old Age Security). You can also ask a lawyer to review any contracts regarding wages paid out during periods where no employment was provided and retirement entitlements.


Redundancy is when an employer claims that your position has become redundant and seeks to fundamentally change your position or terminate your employment. Traditionally these situations occur when an employer claims that there is no work which requires the employee. Your employer must follow the correct procedure to dismiss you for redundancy:

  • They must tell you that they intend to make you redundant
  • They must give you information about the redundancy process, including how many people have been selected for redundancy and what the selection criteria was. This must be done in writing and it should be sent within two weeks of making the decision to dismiss people for redundancy.
  • They must offer suitable alternative employment if there are other jobs available at the company or in similar companies and at a similar level as yours. If no suitable alternative employment is available then they will pay out statutory redundancy payments

These conditions can vary widely between different employers and employees.

Retirement Age

Some people might find themselves with no choice but to retire early simply because their employer has laid them off or their company is going through some sort of restructuring process. But others may choose an early exit from work because they want more freedom in life—or maybe they’ve found another job elsewhere and want the opportunity to build a pension/retirement plan at another job while preserving their retirement from their current employer.

Termination Agreements

Some employers may offer termination agreements to employees. A termination agreement is an agreement between an employer and employee to end their employment relationship. The purpose of a termination agreement is to negotiate a package of benefits, such as extra notice or payment in lieu of notice, severance pay, pension benefits and other entitlements under the employment contract.

These agreements are often complex and involve a combination of statutory and common law rules which can influence what an employee is entitled to.

Should you take legal advice?

If you have any questions about your contract, or if you’re not sure whether it is fair and reasonable, ask a lawyer.

You should ask a lawyer to look over your contract. This may be enough to answer some of your questions. Most termination offers will be time sensitive but should include time for the employee to consult with a lawyer. Some termination offers will even include compensation for the costs of consulting with a lawyer.

You can ask a lawyer to review the terms of your package and help you negotiate with your employer if there are things that don’t make sense or are unfair to you (for example, if there is no mention at all of termination pay).

In many cases it makes sense for employees to get their own lawyers as their employer will probably have its own legal counsel available.

If you want to make sure that your retirement package is fair and you’re not being exploited by your employer.

If you’re working and you are contemplating retirement, it’s important to know your rights. You should be able to negotiate a fair package that protects your retirement plan from exploitation by your employer.

Here are some tips on how to do this:

  • It’s important that you understand what a “fair” package is. The best way for employees to determine if their package is fair is through negotiation with their employer and speaking with an expert like a lawyere. A good place to start when negotiating salary packages is by looking at other companies in similar industries and comparing them side-by-side with yours. If there are any discrepancies between what other companies pay their employees, then it may be time for some negotiations!
  • Remember that not everything needs to be negotiated at once—you can always revisit discussions later down the line if needed (or simply revisit them every year).


If you are contemplating your retirement package then it’s important that you seek legal advice as soon as possible. You don’t want to be exploited or treated unfairly at this stage in life, so make sure that you are proactive and vigilant in considering your retirement.


Andrew MacDonald is an employment and civil litigation lawyer with Wolseley Law LLP

Getting started with probate

By Estates


Probate is the legal process that takes place when someone dies and their estate needs to be dealt with. For example, if a person has left assets which need to be distributed or property that needs to be sold.

What is probate?

Probate is a process that gives you a court order that allows you to prove that you are the rightful administrator of an estate and gives you permission to distribute its assets. It is not always essential when someone dies, but even if it’s not required, it does allow you to deal with their property and money in a more efficient way than if you didn’t have probate.

Probate only applies if someone has died and left behind assets or property which need to be distributed after they are gone. If there are no assets, then there’s nothing left worth worrying about and probate won’t be necessary at all. Depending on what assets the deceased person owned, including bank accounts and land/property, probate may be required in order for you to sell or distribute it.

Can I get probate without a will?

If you have a will, it’s usually easier for your loved ones to get probate. If you don’t have a will, then the process is called administration. The person who takes care of your estate is called an “administrator” (without a will) an “executor” (with a will) or a “personal representative” (for either an administrator or an executor). The personal representative has to file papers with the court and prove that they are the person allowed to act on behalf of the estate.

Gathering the information you need to complete the probate application form, including making a list of assets and liabilities.

  • Gather the information you need to complete the probate application form.
  • Make a list of assets and liabilities: if you don’t know what they are, ask your lawyer.
  • Don’t forget to include any benefits that may be payable through the deceased’s pension and life insurance.
  • The intake form is a “best effort” – if there’s information that you don’t know right away, that’s okay. Write down on the form that the asset/debt/information exists but that you don’t know what it is right now. It can always be obtained later.


We hope that this post has helped you understand what probate is and the process of applying for it. Your next step should be to gather all the information you need to complete the application form, including making a list of assets and liabilities. If you’re still unsure about how to get started, please check in with your lawyer.

International Divorce Law under the Hague Convention

By Family law

Service is one of the important first steps in any legal matter and this is especially true in international divorce. When you commence a court proceeding, you are required to serve the opposing party to ensure that they receive the information about the case and have the opportunity to respond. Because of this, if you commence family court proceedings, your ex-spouse needs to be served. This applies even if you are only seeking a divorce and/or do not anticipate your ex-spouse to contest the proceedings.

So, how do you manage an international divorce if your ex-spouse lives in another country?

If the opposing party lives abroad, the manner of service will depend on a couple of factors.

For instance:
– What country does your ex-spouse live in?
– Do you know the address of your ex-spouse?

Depending on the country your ex-spouse lives in, they may have to be served through a special process outlined in the Hague Service Convention (the Convention). Countries that are party to the Convention must follow specific rules for service.

At present, there are 79 contracting countries to the Hague Convention in various countries all over the world, including:

  • Philippines
  • India
  • China
  • United States
  • Most of Europe
  • Others can be found here

Each contracting country designates a central authority to receive documents for service from other contracting countries. One of the requirements of the Convention is that a competent authority or judicial officer of that country forward the documents using special prescribed application forms. A lawyer is considered a competent authority for this process. As such, a non-lawyer cannot typically send these forms themselves.

What does the application include?

The application forms include a letter of request, a list and description of the documents to be served and a certificate of service for the foreign court to complete and return. Each country also has specific other requirements as well. For example, there may be a fee associated with the service or translation requirements. The Convention does not apply when the address of the person to be served is not known. However, there are other steps that a lawyer can assist you with, such as applying to the court for an order of subservice or the dispensing of the service requirement.

Once your court documents have been filed and served you can then proceed to finalize your family matter.

If you are looking to start a family proceeding against someone in another country; whether you have already filed your paperwork, and just need assistance with service, or are looking for a lawyer to help you complete the whole process, one of our family lawyers are here to help. Please contact us at 204-977-1706 to schedule a consult and learn more about the process and our fees or click here for more information.


Heidi Dyck is an associate at Wolseley Law LLP

Dealing with your cottage in your will and estate

By Estates, Wills

Cottages are an important part of many families. They’re a place filled with happy memories and have been an annual gathering place for those closest to you. But when it comes time to pass on your cottage, family members may have different ideas about what should happen next and how the cottage should be handled in your will. People often come to us with questions like:


  • How do you pass a cottage on to the next generation?
  • Is a cottage trust a good idea?
  • How do we deal with conflicting ideas about what happens to the cottage?


Let’s take a look at some of those questions so that you can start the conversation with your family


Avoiding family conflict with cottages

Family cottages can cause family conflict if they aren’t handled properly in your will. There are a number of ways that this can happen, but the most common is when one child really wants to keep the cottage but others may not be able or interested in doing so. On the opposite ends of the spectrum is when everyone wants the cottage but on different terms. If you would like to avoid any potential family conflicts arising from your cottage when you pass away, here are some tips:

  • Consider holding a family meeting to discuss what everyone hopes will happen. It may lead to a discussion where everyone can be accommodated, or will at least allow you to identify where points of disagreement might be.
  • Make sure each child knows what was agreed upon by all members of the family before making a decision about how the property will be dealt with after your death.
  • Think about appointing someone else (a trustee) instead of leaving it directly to one person who may have different ideas about what should happen with the property than all other siblings living nearby. We’ll discuss this below.


What about cottage trusts?

A trust can be created for the benefit of a specific person or group of people, or for the benefit of a specific purpose. In a cottage trust, the cottage is transferred under your will (or beforehand) to someone who will act as the “trustee” of the cottage. That person, who can be an adult child, another family member, or someone trusted but unrelated, will be the technical owner but they will be holding it for the benefit of others, often family members of the person who has passed away. Cottage trusts are often used to ensure that the cottage isn’t controlled by any one family member and also allows a mechanism to leave funds to ensure that the cottage is looked after for a period of time. It can also be used to temporarily hold a cottage until your children are over a certain age and able to manage the responsibility of a cottage.


Trusts aren’t right for everyone

Trusts can be complicated and there are a number of factors to consider when thinking about setting one up. The tax consequences are a major consideration and everyone thinking about a cottage trust should talk to their accountant before they get too far into the process. Trusts are also a more expensive solution to set up than leaving a cottage to someone in your will outright and involve significant planning and discussion.


Beyond that, though, a cottage trust doesn’t solve all of the conflict problems that people are concerned about, it only delays them. Trusts have a practical time limit to them in Manitoba and in some other provinces (including Ontario) can have a firm legal time limit to how long they can exist for. This means that when the time limit is up, or some other conditions expire, something will eventually need to be done with the cottage anyway and it will need to be given to someone or sold.


Passing on the cottage doesn’t mean that all your heirs need to be co-owners.

The most common way of dealing with a cottage isn’t a cottage trust, but to leave it outright in a will. You can leave the cottage to one person or more than one person, or maybe even have some other options, depending on your wishes.

  • To one heir: If your cottage is going to be passed down to a single heir, then you’ll need to appoint that person as the beneficiary of the cottage in your will.
  • To multiple heirs: You can name more than one individual as a beneficiary of the cottage, with each share being equal or even unequal. It would be important that everyone involved has a very good idea of what that shared ownership looks like, especially between adult children, to make sure that everyone understands what the intention and responsibilities are with that kind of shared ownership.
  • To charity: You can also choose to give the property to a charity. This means that your family will no longer have use of the cottage but may confer a significant tax benefit. You should definitely seek professional financial advice before considering this.


Talking with family

Whatever you do, talk to your family about it beforehand and make sure the know the plan so there are no surprises later. They don’t have to like or agree with the plan, but discussions that happen while concerns can still be addressed are significantly better than trying to have a discussion afterwards. If your child loves the cottage, but has never been particularly interested in maintaining it, for example, she might not be thrilled about inheriting a fixer-upper. So how does one avoid these kinds of misunderstandings?


  • Start early: It’s a good idea to have this conversation well before you pass away (it’s awfully hard to do so afterwards). While everyone needs time to adjust and process what’s happening when someone dies, talking about who inherits assets while there is still plenty of time can help minimize any confusion down the road. Set a dinner to discuss estate plans, including the cottage. Give everyone some time beforehand to develop their thoughts about a potential plan and what they want. You may be surprised at how much common ground there is around wishes and concerns.
  • Be honest: The best way to set people up for success after you’re gone is by being open and honest with each other now—not only about who gets what, but also why each person should get something at all! For example: “I’m leaving my cottage to my daughter because I know she’ll love it as much as I did,” or “I’m leaving my cottage to my son because he has always been such an integral part of our family.”
  • Seek assistance: A lawyer experienced with cottage challenges can provide answers through the conversation process. Often times an excellent solution can be crafted, so long as you do it within the bounds of what is allowed, and with some guidance on potential pitfalls with a plan. For more contentious families, even a family therapist or mediator who can facilitate discussions may be very helpful in keeping everyone focused and working towards a common goal.


In the end…

There are many options when it comes to dealing with your cottage in your estate and it’s important to find a solution that works for you and your family, and not just what seems easiest. It all depends on what your family wants, how much time they want to spend together, and how much they trust each other. The best thing to do is figure out what works best for you and then talk about it with your family so that everyone knows what’s going on.


This article is for information purposes only and is not legal advice. You should definitely seek your own counsel about plans that you may be considering. This article is written with Manitoba in mind and may not be applicable in other provinces or countries. Some of the information in this article may not apply to your situation at all so please do not make any plans or decisions based on it exclusively.


Gerrit Theule is a partner at Wolseley Law LLP and his primary practice area is in Wills, Estates, Trusts, and Elder law.

Wrongful Dismissal 101

By Employment Law

In Manitoba a non-unionized employee can be terminated or fired at any time for any reason.  There are a few exceptions to this, but that is, for the most part, the system that we have.  One important caveat is that the employer is required to give notice of termination.

This can be done in one of two different ways.

One option is for the employer to give ‘working notice’, which means that the employee is told that their employment will terminate on a date that is far enough into the future that the employee’s legal right to notice is respected.

The other option is for the employee to be given a severance package.  This means the employee is effectively not given any prior notice of their termination, but they are provided with enough money to adequately compensate for this.

How much notice?

Whether the employee is given working notice or a severance package, the quantum of the notice period is determined by several factors.  At a bare minimum, all employees—subject to very few exceptions—must receive the notice period required by the Employment Standards Code.  An employee may also be entitled to a further amount of severance pay by the terms of their employment contract.  Most employees do not have a written employment contract, but that does not mean there is no contract.  As a matter of law certain terms can be implied.  The most important of these is the implied term that an employment contract will not be terminated by the employer without providing the employee with ‘reasonable’ notice.

Reasonable notice can be a fuzzy concept that ultimately amounts to whatever a judge would think is fair.  The age of the employee, the length of service, the availability of suitable replacement employment, and the custom in the industry can all be factors to consider.

What is a severance package?

Sometimes the compensation that is provided to an employee on their termination is called a severance package.  A severance package should be designed to adequately compensate the employee for the loss of their employment.  Although the loss of base salary in the notice period is usually the most important element, a severance package can also compensate for the loss of pension credit accrual, the loss of benefits, and can sometimes also provide access to retraining services or career counselling.

Employment Contracts

It is increasingly common for Employers to seek employment contracts from their employees that will limit severance entitlements at termination.  This can help provide certainty for employers but there are pitfalls.  Employees, and their lawyers, frequently have found ways to void termination clauses that limited severance entitlements.  When a termination clause turns out to be void, the cost for the employer is significant.  An employer should consult legal advice before seeking a termination clause in its employment contracts.  Conversely, employees who have been terminated and told that they are limited in their severance claims because of a termination clause may wish to consult legal advise as the clause may turn out to be void.

What about Cause?

In cases where an employee is guilty of serious misconduct, the law permits an employer to terminate an employee summarily and without any advance notice.  Unsurprisingly, employers and employees often disagree on whether certain facts justify summary dismissal.  Canadian courts have considered many scenarios and then ruled on whether summary dismissal was justified.  Many employers have jumped the gun and moved too quickly to dismiss when a less punishment was appropriate.

An employer considering whether to summarily terminate an employee for cause should consider obtaining legal advice prior to proceeding.

The Termination Process

Terminating an employee is a difficult and stressful moment.  Although both sides will have an interest in determining the cost of the employee’s entitlements, there is often some negotiation and back and forth.  Employees are often upset, shocked, and filled with anxiety about their future.  There are strategies in this process that can be used by both employees and employers to protect their interests in this process.  It is usually a good idea for either side to engage the services of experienced legal counsel.

How much does it cost?

Employees are often anxious about legal fees because the last time someone wants to hire a lawyer is when they have just lost their income.  Although there can sometimes be risks to negotiations, those are discussed at the outset.  In some cases, it can be possible for the lawyer to work on a contingency arrangement where the fee is taken out of the final settlement and is contingent upon the lawyer generating additional value for the client.  Legal fees can be tax deductible.

Every situation is a little bit different and it’s usually very important to not delay reaching out to legal counsel.


Daniel Hildebrand is a lawyer at Wolseley Law LLP focusing on civil litigation and employment law in particular

Top 5 Tips for Homebuyers

By Real Estate

There are several steps you can take to save time and money when purchasing a home in Winnipeg. Here are five things you need to know when buying a home:


  1. Understand closing costs.

In most cases, your lawyer will collect the balance of the purchase price, fees, and disbursements up front, directly from you.  If you are buying and selling at the same time, you may need to arrange bridge loan financing with your lender.

Closing costs are explained in more detail in this article.


  1. Secure your home insurance.

An insurance binder is a one-page document that proves that you have placed insurance on the property. Your lender will require you to have an insurance policy in place prior to possession. Ensure that your insurer has sent your “insurance binder” to your lawyer at least three days before possession. The “loss payable” must be your mortgage lender.


  1. Arrange financing two weeks prior to your possession date.

Once loan documents have been signed with your mortgage specialist, your lender will send mortgage instructions to your lawyer. Your lawyer can only move forward with your deal after they have mortgage instructions. A delay in mortgage instructions could result in additional rush fees. If your lawyer receives mortgage instructions early, it will be much easier for you to schedule an appointment at a convenient time, and you will save money on legal fees.


  1. Choose your lender carefully.

From credit unions, to banks, to broker-channel lenders, there are a wide array of institutions who will lend you funds to buy your home. Shop around, not just for your interest rate, but also for less obvious but equally important terms such as pre-payment privileges and penalties, renewal fees, and front-end servicing fees. You may want to specifically ask if additional documentation will need to be signed with your lawyer. Law firms will often charge additional fees on home purchases where significant additional paperwork is required. Remember that you will be dealing with your lender for the full term of your loan, and early experiences may be a telling sign.


  1. Be available to pick up keys.

Depending on the specifics of your transaction, you may need to pick up the keys to your new home on the business day before the possession date. Make sure you are available to swing by your lawyer’s office during regular office hours, or that you have made alternate arrangements for key pick up.


Being well-prepared and well-informed on all aspects of your purchase is key. Make sure you have a trusted team of professionals to guide you through the process.

If you have any questions, or wish to inquire about our real estate services, please do not hesitate to contact our office at 204-977-1706 ext. 8, and we would be more than happy to help you.


D. Johnson