Canadian Law Blawg

Congratulations to Toronto Employment Lawyer, Daniel A. Lublin

Congratulations to long term LawyerLocate.ca member Daniel A. Lublin for his recent award as one of “Canada’s Top Employment Lawyers”. Mr. Lublin has received this honour in Carswell’ annual surveys, both in 2009 and in 2008. The awards are in recognition of his contribution to employment law and human resources publications.

You can read more about Daniel A. Lublin at his website, www.toronto-employmentlawyer.com and at his blog, blog.toronto-employmentlawyer.com.

Inter Vivos and Testamentary Trusts

Many families have members (of all ages) who require assistance in handling their daily financial affairs, regardless of their other abilities. Beneficiaries often benefit from guidance in handling larger sums of money or significant assets, temporarily or on an ongoing basis.

Some such beneficiaries may be unable or unwilling to seek guidance, or may at some points be left without guidance unless special provisions are put into place for their assistance.

An Absolute Discretionary Trust is a legal arrangement which places assets in the care and control of a trustee to be administered for the benefit of a beneficiary. A Trust may be created during your lifetime (inter vivos) or according to the terms of your Will (testamentary). This includes inter vivos Henson Trusts.

Discretionary Trusts have value when considering the effect an endowment or inheritance would have on sources of income and other financial support for a beneficiary, such as provincial benefits programmes.

Current case law indicates that properly prepared Discretionary Trusts, such as a Henson Trust, will not remove the entitlement to provincial benefits. Although inter vivos Trusts have some limitations they are of considerable value.

It is essential that Discretionary Trust arrangements continually consider ongoing changes in provincial regulations and new case law.

Henson Trusts - What will happen to my child after I am gone?

A responsible parent will have a Henson Trust in their Will for the benefit of their child with a disability.

This question causes great concern for many families. But as you are aware, there is an extra-ordinary problem for parents whose children, young or old, receive some form of provincial disability support.

A child or adult who receives child benefits or Ontario Disability Support Program benefits will be disqualified from receiving them if left an inheritance, unless:

• The parents’ Will creates an absolute discretionary “Henson” Trust which will protect the inheritance; and

• The Henson Trust is funded by insurance or assets, and suitable Trustees are chosen to carry out the terms of the Trust.

Parents who know about this problem may intend to leave nothing for their child, since it would simply be used to replace other benefits until it is all gone, or to leave a share to another person in a ’secret’ trust. These are poor choices for many reason.

The only true solution lies in the Henson Trust, a special form of Trust arrangement. It is affordable and accessible to all families who can make use of it, but is not well known.

What is the ‘disability tax credit’? I know some parents save on taxes by using this tax credit and others have never heard of it.

This tax credit is available whenever a child of any age is markedly restricted in the activities of daily living on an on-going basis.

The restrictions can be cognitive, developmental, physical or mental, or a combination of disabilities. This tax credit must be applied for and approved, by filing a T-2201 form with Canada Revenue Agency.

Once approved, the credit is transferred from the child who qualifies to a parent or other supporting person. The tax credit is only useful to someone who pays taxes, and in many cases the person with the disability has no taxable income.

The credit was recently increased, and now returns $1,500 each year to a taxpayer who makes use of it. It can presently be back filed to 1997, back ten years on a rolling annual basis.

In years prior to 2001 the tax credit only returns $1,000 per year, as that was the previous allowance.

Back filing for the full period, if applicable, in 2006 would return approximately $14,000 to the taxpayer.

I’ve heard about the ‘caregiver credit’ used by some families to reduce taxes. When does this apply?

If a child is over 18 years of age, on ODSP, and resides full time or substantially all of the time with the parent or other family member, then the family member qualifies as a care-giver of that child. They can then claim the ‘care-giver tax credit’ and pay approximately $500 less in taxes than they would have.

This credit applies in each ongoing year in which these factors exist. The credit came into effect in 1998, and can be back filed to that year if applicable. This would return approximately $4,500 in taxes for a back filing from 2006.

This tax credit applies in the circumstances of any adult family member, not just children, for example an aged parent with survives on a small pension and who has been released from hospital after an operation.

Why do some people receiving Ontario provincial disability benefits receive $750 each month while others receive $979?

The $750 amount is the ‘room and board’ allowance. If a child lives with the parent they will automatically be slotted into this amount. The $979 amount is composed of $436 for shelter/rent and $543 for supplementary benefits for everything else.

By setting up a lease arrangement with the parents and having the parents charge at least the shelter allowance amount, the benefits should then be increased to the proper amount.

These shelter payments by a blood relative are not to be included as “rental” income.

Rental losses are not allowed if your rental operation is a cost-sharing arrangement rather than an operation to make a profit.

You can deduct your expenses only if you incur them to earn income. In certain cases, you may ask your son or daughter, or another relative living with you, to pay a small amount for the upkeep of your house or to cover the cost of groceries. You do not report this amount in your income, and you cannot claim rental expenses. This is, in fact, a cost-sharing arrangement, so you cannot claim a rental loss.

The child cannot then make use of the “tenant property tax” credit.

If the child is simply unable to shop or cook, even with supports, then the increased amount may be unavailable on the basis that the food and lodging is provided by the parents. This turns on the facts of each situation.

How to File a Complaint about a Medical Practitioner in Canada

All Provinces and Territories in Canada have a “College of Physicians & Surgeons” which oversees the medical profession / industry. They are legislated to ensure that medical practitioners are licensed, qualified, and competent.

To ensure patients are safe and protected when being treated by a licensed physician, all provincial Colleges of Physicians & Surgeons have established protocols for managing public complaints. But like many things in our country, each provincial body operates differently.

If you wish to issue a complaint about a physician in a particular province, we encourage you to visit the appropriate provincial site below to get more information on the procedure.

• British Columbia
• Alberta
• Saskatchewan
• Manitoba
• Ontario
• Quebec
• New Brunswick
• Nova Scotia
• Prince Edward Island
• Newfoundland and Labrador
• Yukon
• Northwest Territories
• Nunavut

If you wish to have some legal advise about the situation, contact a lawyer. You can get free help with finding an appropriate lawyer by contacting LawyerLocate.ca Inc.

Questions to Ask A Lawyer BEFORE You Hire One

Hiring a lawyer can be a scary thing, often because of the money required to do so. You want to make sure that the lawyer you are considering is a perfect fit for you and your situation.

To help you decide if he/she is right for you, ask them the following  questions. We recommending interviewing more than one possible lawyer, and compare their answers to your questions. Then you can make an informed decision based on the things that are important to you. You need to be confident the lawyer is going to “work for you”.

1. How long have you been practicing law?
2. What is your experience in this particular area of law?
3. Have you handled any cases similar to mine?
4. What are the possible outcomes of my case?
5. What is the processes involved and a rough timeline for each step? How long will my case take?
6. What are the potential for complications in my case, and what additional fees could be incurred?
7. Do you have a written retainer letter or agreement?
8. How do you charge - by the hour, the case, a percentage, or a combination?
9. Will your rates change while you are handling my case? If so, how much notice will you give me?
10. Will any legal assistants or associate lawyers be working on my case? What do you charge for their time?
11. What type of disbursements should I expect?
12. Assuming that there are no complications in my case, what is the range of the possible fees, disbursements, and taxes? Can you give me a firm quote for fees and/or disbursements?
13. When will you bill me?
14. How will you keep me informed about what is happening on my case? Telephone, fax, email?
15. Will you return my phone calls within one business day?
16. Will you send me copies of letters that you receive and send out?
17. Who can I call in your office if I can’t get hold of you?

Qualifying for Legal Aid in Canada

We often get asked about how to get financial assistance for legal matters. The answer to your questions about securing a legal aid certificate depends on several factors, including:

1. Your legal situation. For example, is it a family law issue involving children custody? Is it a legal dispute where you were not happy with contractor’s work and you want to sue them in small claims court? Or is a criminal issue where you are facing jail time?
2. Where you live. For example, do you live in the Province of Ontario? Or do you live in the USA but are attending family law court in British Columbia? Or do you live in England and wish to emigrate to Canada?
3. How much money you make. Are you currently employed? Unemployed? On social assistance?

As you can see, there are plenty of variables in determining if you qualify for a legal aid certificate. The seriousness of the matter, where you live, and how much money you make can all play a factor. And every province has different criteria for qualifying.

To help you find out if you qualify - as we can’t answer that for you - we have provided the links to the provincial legal aid societies. Contact the legal aid office for the province in which you live (or the province in which you legal action is being heard).

• Legal Aid Society of Alberta - The mission of the Legal Aid Society of Alberta is to facilitate equality of access to the justice system through the provision of legal services in serious legal matters to those who would not otherwise be able to finance them solely from their own resources.

• Legal Services Society - British Columbia - If you have a legal problem but you can’t afford a lawyer, the Legal Services Society — an independent, non-profit organization that provides legal help for people in BC — may pay for a lawyer for you. This is called legal aid. You must qualify under legal aid guidelines to get a legal aid lawyer.

• Legal Aid Manitoba

• Legal Aid New Brunswick - Provides the Duty Counsel lawyers at Provincial Court in Sussex, Hampton, Saint John and St. Stephen in both adult and youth courts. Also provides lawyers for trials to successful applicants for serious criminal charges and for parents when the Department of Health and Community Services is applying for permanent custody of the child/children.

• Legal Aid Newfoundland - The Legal Aid Commission ensures that persons with limited financial means have access to legal counsel.

• Legal Aid Commission, Nova Scotia - The Commission has thirteen community-based law offices, as well as 2 sub-offices. Legal services are provided mainly in the areas of family and criminal law to persons whose income is derived primarily from municipal or provincial social assistance, or to persons in an equivalent financial position.

• Legal Aid Ontario - Legal Aid in Ontario is available to low income individuals and disadvantaged communities for a variety of legal problems, including criminal matters, family disputes, immigration and refugee hearings and poverty law issues such as landlord/tenant disputes, disability support and family benefits payments.

• Prince Edward Island Legal Aid - This program provides representation in family and criminal law to clients who, for financial reasons, would be unable to obtain essential legal services from the private sector. The program is cost-shared by the Federal Government.

• Québec Legal Aid - Set up in 1972, the legal aid program is especially intended for the economically disadvantaged. It gives them access to the courts, the professional services of an attorney or a notary, and the information they need regarding their rights and obligations.

• Legal Aid Saskatchewan - The Legal Aid Act establishes the Saskatchewan Legal Aid Commission to provide legal services to persons and organizations for criminal and civil matters where these persons and organizations are financially unable to secure those services from their own resources.

How to Find a Specific Lawyer

One question we often get asked is how to find a specific lawyer. For example, “I need to find Ms. Smith. She represented me in court in Calgary in 1987″. Or “….Mr. Abbott from Abbott, Abbott & Little” in Windsor who drafted my Will 15 years ago”.

Often a targeted search in google for the individual’s name will yield a result. But sometimes not. But don’t despair, the information is still close at hand.

The provincial law societies all mantain a database of practicing lawyers in the respective provinces. Many of the provinces provide access to this information online. And the lawyers are mandated to keep this information current. So if you are looking for a specific lawyer, start with a visit the appropriate provincial law society’s website. (BTW, we maintain a list of Law Society sites on the bar to the right.)