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Oct 28
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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

Aug 25
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Dealing with your cottage in your will and estate

By Estates, Wills
Planning for Cottages in EstatesPlay Video

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.

Aug 24
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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

Apr 16
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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

Apr 09
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Closing Costs Demystified

By Real Estate

When buying a home, you will need to bring money to your lawyer before the possession date to close the deal. This money is commonly called “closing costs.” The funds will need to be provided to your lawyer by certified cheque or bank draft.

Your lawyer will send you a detailed Estimate of Closing Costs after they receive mortgage instructions from your bank or credit union. However, understanding closing costs in advance will help avoid last-minute surprises.

Closing costs are made up of 3 parts, the balance of the purchase price, legal fees, and disbursements.

 

  1. Balance of Purchase Price

 

The balance of the purchase price is calculated using the following formula.

Purchase Price MINUS Initial Deposit on House MINUS Mortgage Funds being provided by the bank or credit union PLUS OR MINUS Adjustments

Example:

Purchase Price: $250,000.00

MINUS Initial Deposit: $10,000.00

MINUS Mortgage Funds: $200,000.00

PLUS Adjustments – Annual Property Taxes ($3,650.00) paid in full for year and prorated to possession date of September 22 (100 days): $1,000.00

Balance of purchase price: $41,000.00

 

Mortgage Funds – If there are additional fees (for example: mortgage insurance premiums such as CMHC, appraisal fees, or servicing fees), these fees will be taken off at the bank or credit union, before your lawyer receives the funds.

Adjustments – No matter what date taxes are due, they are adjusted for the entire calendar year, as of the possession date. Depending on whether the vendor has paid the taxes, you will either give or receive a credit. Additional adjustments beyond taxes may apply if you are purchasing a condo, rental property, or new build home.

 

  1. Legal Fees

Fees represent the amount charged for legal work and they will vary based on the particulars of your transaction.

 

  1. Disbursements

Disbursements are out-of-pocket costs that your lawyer will pay as part of the transaction.

 

  • Registration Costs are paid to the Government of Manitoba. As of 2021, it costs $109 to register the Transfer and $109 to register the Mortgage.

 

  • Title Insurance protects both you and your mortgage lender. It is usually required by the bank or credit union when you are getting a mortgage. The cost is mostly determined by the purchase price of your home and the amount of your mortgage.

 

  • Searches are required to investigate the title at Land Titles and the tax account. You are only charged for the actual number of searches conducted.

 

  • Couriers are used to deliver documents and cheques. Again, you are only charged for the actual number of courier deliveries called.

 

  • Administrative costs such as photocopying, software transaction charges, file storage, and postage are charged differently by each firm. When choosing a lawyer, be sure to inquire about these types of costs, as they can quickly add up.

 

Taxes are applicable to fees and some disbursements.

 

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

Nov 20
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Power of Attorney or a Committeeship

By Committeeship, Power of Attorney, Wills

People often ask the question: “Do I need to get a power of attorney or a committeeship for my loved one?” While the two documents, and powers that they grant, look similar, there are many important differences, and often the situation that you are in will be what determines which one is needed.

 

A Power of Attorney is a document signed by a person that gives authority to another person to manage some or all of that person’s affairs (although it is important to note that it does not remove the ability of the person signing it to manage their own affairs – it just appoints a “helper”). They are often, but not always, used to guard against later-in-life inability to manage one’s affairs whether due to dementia, physical incapability, or simply because it’s easier to have a loved one take care of day-to-day tasks. They need to be made while a person is still competent to make decisions, and are typically drawn up by a lawyer because, unlike a will, powers of attorney can only be witnessed by people in certain professions, with “lawyer” being the most common one. They are often made at the same time as a Will, but unlike a Will, a power of attorney is only valid while the person who made it is still alive, where a Will is only in effect after a person dies.

 

A Committeeship has some similarities and some differences. Like a power of attorney, a committeeship gives another person the ability to manage some of a person’s affairs while that person is still alive. The main difference is that a committeeship is a judge-made court order and they are only issued after someone has lost the ability to manage their own affairs. Because of this, they require sworn affidavits from physicians that the person can’t manage their own affairs, as well as a court appearance before a judge (although typically there is no need for witnesses to be called). This makes committeeships significantly more expensive to obtain than making a power of attorney in the first place – often thousands of dollars – although if the person no longer has the mental capacity to make a power of attorney then it may be the only option for a family member to take control of the affairs of someone.

 

There are some other differences as well: Most often, when we draft a power of attorney, we give as many powers as possible to the person who will be taking on the powers. With a committeeship the powers that are granted are more limited, and sometimes additional orders are required. For example, most powers of attorney are drafted with the option to allow the family member to sell the house if the person can’t live in it anymore. Under a committeeship, the house can only be sold after review of the sale by a judge, resulting in a delay on the sale and increased costs for seeking that review. A power of attorney can also name anyone (over 18, mentally competent themselves, and no an undischarged bankrupt) whereas a committeeship can only be granted to a person who is a Manitoba resident.

 

In the end, it is often far easier on everyone involved to have a power of attorney in place before it is needed. With that said, if there isn’t one in place, it’s important to know that not all is lost and that a committeeship may be an option. Please feel free to talk to us if you have any questions, and let us know if there is any way that we can help with your committeeship or power of attorney questions.

Sep 17
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Workplace Investigation: 5 Reasons to Hire an External Investigator

By Employment Law, Workplace Investigations

Fair and equitable work environments in which all employees can participate and do their best work should be the goal of all employers. As part of that goal, there is a need for accountability by both employees and employers when issues arise in the workplace. That’s where a workplace investigation may be appropriate.

Some allegations of misconduct can be investigated and addressed internally, but there are many situations where employers should consider hiring an external workplace investigator. It is valuable for employers to be aware of when they are unable to handle an investigation. There is no specific list of circumstances to determine when an external investigator should be retained because every situation is unique. Below are some factors and scenarios to consider:

  1. The Allegations Are Serious

When serious allegations, such as sexual harassment or criminal conduct, are made, it is advisable to have an investigator with the necessary legal knowledge, training and expertise handle the matter.

Also, if an employee’s job is at risk, the employer should take the necessary precautions to ensure that a fair and proper investigation is undertaken and the rights of all parties are respected. An external investigator with a background in employment law has the necessary skills to make sure this is done.

  1. Impartiality in the workplace investigation

It is vital that workplace investigations be conducted by an impartial investigator with the necessary knowledge, training and expertise. You want all parties to accept and abide by the recommendations of the investigator. A necessary part of this is for the investigator to appear neutral and unbiased. Hiring an external investigator can shield the employer from claims of bias.

  1. Lack of Time and/or Resources

Conducting a proper investigation takes significant time and resources, which otherwise would be devoted to regular workplace activities. An external investigator will be able to conduct their investigation with only minimal disruptions to the day-to-day operation of the workplace.

  1. Helps to Re-build Morale

Allegations can cause a serious rift in employee relations and workplace dynamics. Employees often feel more comfortable reporting incidents when they feel that their employer takes such allegations seriously. Hiring an external investigator is a way for employers to elevate the trust and confidence their employees have in them.

  1. Prepares for and Simplifies Litigation

Similar to avoiding the spectre of bias, hiring an external investigator can safeguard the investigation against allegations of procedural unfairness. A report by an external investigator can be used as a shield against potential litigation and can be relied on by adjudicators in human rights or employment disputes. This will save all parties time and money in the long run.

For more information, please see our workplace investigations page here.

Katie Brownell is an associate at Wolseley Law LLP where she assists businesses with workplace investigations and other human resources disputes. The information presented in this article is not to be considered legal advice nor fit for any particular purpose. You should consult a lawyer with any questions specific to your situation.
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