5 Things to Never Do if You Want to Avoid Family Feuds Over Your Estate

In the "good old days" (which often weren't so good), most of us died relatively poor, and there wasn't a whole lot left to divvy up among those who survived us. With recent significant increases in home ownership equity, if you die owning a mortgage-free house you now often die rich. Plus there may be life insurance and investments to distribute. This is all great for one's survivors, but not so great if family relationships are already a little strained at the time of your passing. 

In the old days, even if beneficiaries of estates were inclined to squabble over who got what, they did not often retain legal counsel since the legal fees would outweigh the money in dispute. But now "lawyering up" prior to estate distribution is becoming much more common. 

In my estate litigation practice, I consistently find the disputes far nastier and more intractable than the conflicts in my family law practice. 

Here I offer you five things to never do if you want to avoid family feuds over your estate.

1. Have No Will or a Very Outdated Will

It continues to amaze me how many smart, hard working people - including even lawyers I know - have no wills! Or they last updated their wills 40 years ago when they had far fewer assets, and their family members were far less numerous. It's got me thinking about what an unpleasant thought mortality is for many of us. 

The default operation of the law is a very poor guide as to where your estate should go, and for who should be appointed to administer it. Wills are quick and relatively inexpensive to have professionally prepared, and a carefully drafted will minimizes later family beneficiary conflict - you need one. 

2. Appoint Several Simultaneously Acting Executors

Picking the right executor for your will may be more important than picking the right beneficiaries. People often spend months debating who should or should not receive that prized china tea cup in a will, but take about five minutes (literally) to determine who should act as executor and estate trustee in a very onerous and complex role. 

Your executor is THE key player who will determine whether your estate is distributed hassle free, or with acrimony and litigation lawyer involvement. While many think that appointing several people to simultaneously act as executor will permit spitting the workload and ensure all those important to them have the “honour" of being executor, the reality is that being executor is a thankless job where nothing may get done if it proceeds by committee. 

Picking someone (and only one person) who is relatively impartial (and ideally not a major beneficiary, but who is compensated for his or her effort), has some financial abilities, and has people skills, is the usually the best strategy. 

3. Appoint No Alternate Executors

No where else in the legal world do we draft binding documents that only take effect many decades in the future, when factual realities may have changed dramatically. Thus planning for changing contingencies means having one or more backup executors. The person you name today might be dead, or incapacitated, or unable to be located, or just plain not willing to act 30 years from now. So you need a backup. And all executors you name should preferably be younger than you are to hedge your bets that you won’t run our of executors.

4. Distribute your Actual Assets Rather than Shares

As much as you might want to leave your house to one person, and everything else to another person, be aware that the legal result of you not having that house 20 years down the road when you die will be that the person who was supposed to get the house will receive nothing, and the person who you intended to receive everything else will receive 100% of your estate, including possibly all of the proceeds of sale of your house if you invested the money! 

So try not to give “specific bequests” in your will of anything more than nominal value, just use “shares” where you split up your estate into slices of the same pie. Some can receive a bigger slice than others, but this way everyone gets dessert. 

5. Completely Exclude Anyone who is Deserving from your Will

The more people you "cut out" of your will who might usually be expecting a gift, the more you heighten the chances of one of them challenging the will. You definitely don't need to treat everyone equally (at least under Canadian common law in Ontario), but if you have three children, and you give two of them $100,000 each, and the third one nothing, you are asking for trouble. Even if you have good reasons for doing so. 

If you are planning to cut someone out totally, don’t leave them the insulting $1 of times gone by, just explain briefly why you are doing it so they don’t later claim you simply forgot them, or had a clouded mind at the time of your will drafting. But do anticipate that even with these good reasons, you might be creating a lot of hassle for your executor and beneficiaries because of the estate litigation risk that is being created. 

Far better to give someone substantially less than others similarly placed - like $25,000 rather than $100,000 - because it will blunt the litigation urge. 

5 Things to Never Do if Stopped by Police on a Highway

Most of my criminal defence practice covers about 300 kilometres of Canada’s busiest highway, running from the Quebec-Ontario border in the east to Belleville in the west. While my work often involves helping individuals who live in the communities like Cornwall, Brockville and Kingston that are arrayed along that Eastern Ontario stretch of the Highway 401 (is there anyone who actually calls it by its official Macdonald-Cartier Freeway name?), it’s especially common for me to assist those who who were just passing through - often on their way to or from Montreal or Toronto, and points further east and west. They might get stopped by police along that all so busy corridor for one minor reason or another, but then things escalate.

If you’re ever stopped, I can offer you my top 5 things to never do if stopped by police on the highway. 

1. Lie to the Police

Yes, I know this one seems obvious. But police stops are stressful experiences. We can all do stupid things. We might not be thinking clearly. Often, you’ll have done nothing wrong, but lying to police can constitute the criminal offence of obstructing justice. So don’t give a false name. Don’t give a false birthdate. Don’t lie about where you are going, or what you are doing. 

2. Volunteer Information

No one has a legal duty to help the police, beyond providing very limited information mandated by law. If the police ask you about your name, you likely need to give it to them. If you are driving, you need to provide a driver’s licence, registration, proof of insurance, and limited other driving-related information if asked. But the police generally can’t force you to talk, regardless of whether you are the target of an investigation, a witness to an event, or just someone they casually encounter. 

3. Refuse to Provide Driving-related Information if Driving

Because driving a motor vehicle is a privilege, and not a right, the police can force you to talk about your driving. Beyond providing documents, if you’re involved in an accident the police can demand your side of the story. For regulatory purposes, there’s no right to remain silent. This rules also applies to other regulated activities, like when a regulatory agency is investigating your fishing activities, your hunting activities, or your income tax return.

A regulatory investigation can’t gather information compelled from you predominantly for the purpose of incriminating and charging you. But that can be the end result. Federal and provincial legislation creates many “information demand” powers in the regulatory context, but not in the criminal context. So a lawful drug manufacturer can be forced to talk, but an illegal drug dealer can’t. 

4. Refuse to Provide a Breath Sample

Even if you’ve been drinking, you very well might not be over the legal limit of alcohol in blood concentration, or otherwise impaired. But if you refuse a police demand to provide a breath sample, what your blood-alcohol level really was becomes irrelevant. Refusing to provide a sample is as serious of an offence as impaired driving or over .08.

There is a mandatory minimum fine upon conviction for refusing to blow, meaning you’re guaranteed to acquire a criminal record. So don’t worry about whether the demand for a sample is legal or not - let your lawyer worry about that later - just cooperate. That advice applies to all police activity. A search could be illegal, an arrest could be illegal, these are all things your lawyer might be able to raise later at your trial, and the illegality might very well lead to your acquittal. But don’t try to figure them out the lawfulness at the time of the events. Just let the police do their thing. 

5. Agree to a Search of Your Vehicle or Person

I get that there can be lots of psychological pressure to agree to a polite request “to take a peek in your trunk, just for a minute” even if you have 10 kilos of neatly packaged powder cocaine sitting in that trunk (true story, it happened on the Trans Canada Highway, and the driver did indeed say something to the effect of “No, I don’t mind of all, go ahead”). Either the police have the power to search, or they don’t. Sometimes they can lawfully search incident to arrest for evidence related to the offence they have reasonable and probable grounds to arrest for. At other times they will need a search warrant to conduct such a search. You should never try to obstruct their searching; but you shouldn’t consent to it.

5 Things to Never Do if you Hope to Successfully Appeal Your Income Tax Assessment

Every year around this time, I receive an increasing number of calls from prospective clients who have received assessments, requests for further information, or notices of audit from the Canada Revenue Agency. While all this correspondence needs to be dealt with in a timely manner, it's the assessments and reassessments that are the most sensitive because of the strict rules on how they can be challenged. Here are my top five things you should never do you if you hope to successfully contest your income tax (re)assessment.

1. Be Late in Objecting to the CRA

You only have 90 days from the date of the Canada Revenue Agency's Assessment or Reassessment to file an objection. While under exceptional circumstances you might be able to get an extension of that time, you can’t just ignore the deadline, or wait until you have gathered together all the information you think you might needed. Even if your objection is imperfect, file it anyway. You can always add additional information later. 

2. Miss Your Appeal Deadline with the Tax Court of Canada

If you lose your internal objection to the CRA, you’ll only have another 90 days within which to file your appeal to the Tax Court of Canada. The Court is completely independent of the CRA (unlike the internal objection procedure), but there are still strict (but different) rules on how you must craft, present and file your dispute of your (re)assessment. 

3. Hope Your Accountant or Tax Preparer Can Represent you Before The Tax Court

While you can appoint an accountant or tax preparer to represent you at the objection stage with the CRA, only a lawyer can represent you before the Tax Court. It can be any lawyer in Canada - there is no special sub-class of tax lawyers - but be aware that very few lawyers do work before the Tax Court because it has its own rules of procedure that are different from all other courts in Canada. The judges even wear purple sashes, which are very distinct from the usual red sashes of most courts in Canada. 

4. Fail to Sufficiently Explain Why the CRA is Wrong

As the taxpayer, the Income Tax Act puts the full burden of proof and argument on you to dispute any CRA assessment or reassessment. The CRA is presumed to be right, and it is up to you to prove them wrong. This burden is completely the opposite of criminal proceedings, where the burden always falls on the police and Crown. It doesn’t matter if you think this unfair, this is the way Parliament set up the tax system. 

5. Fail to Produce Compelling Evidence to Prove Your Case

Talk is cheap. What courts and the CRA objections branch like to see are documents. So saying you’re entitled to all sorts of deductions without any proof of your expenses, or saying all that money that flowed through your bank account isn’t taxable income even though you have no alternate explanation of where it came from, or arguing that your 10 million dollar mansion was acquired just by clipping coupons, without any proof of where you got the money to pay for it, won’t fly without hard proof.

Survive Working with a Barrister in Canada: 4 Things You Need to Know

In Canada, barristers are simply lawyers who go to court. Unlike in England, they're part of the same law societies as solicitors. While we've never worn white horsehair wigs unlike many other commonwealth jurisdictions - I've heard they were too difficult to obtain in Canadian colonial times - we do sometimes wear black robes that have a habit of getting caught on door handles as we attempt to swish imperiously in and out of rooms. 

Your life working with a barrister can be productive, or it can be miserable. In this post I'll explain to you the four steps you need to follow to make the relationship the former, and not the latter.

It doesn't matter if you're being dragged kicking and screaming to court in response to a criminal charge, are embroiled in a small claims or Superior Court of Justice civil suit, are trapped in family law proceedings, or maybe you need to initiate a court application to clarify your rights over real estate or the interpretation of a will. Unless you're planning to do the case yourself - and in over two decades of practice I've seen few positive outcomes for those who try the DIY route - you'll be stuck working with a barrister.

Step One - Be Sure You Need a Barrister

Clarify at the start of the relationship why you need the barrister. Many people come to see me thinking they might benefit from a lawyer, but aren't quite sure what the lawyer can do for them. I always tell my clients that a little legal advice can be a bargain. But going to court unless you absolutely have to go is never a bargain. 

When you do speak to the barrister, explore upfront exactly how he or she might be able to help you. Don't accept vague answers from a barrister about his or her plans to help you. Instead, push the barrister to explain step by step what his or her plan is for you. 

You might not really need a barrister. And it could be worth a free five minute phone call or a one hour paid consultation in order to find that out. Even if you pay up front for a bit of advice on your matter, possibly including asking the barrister to write you a formal legal opinion about the likely prospects of success of your case in court, it will still be way, way cheaper than spending money on court legal fees once litigation has started.

You might need a psychologist or family therapist or credit counsellor or accountant more than a barrister. If you have a neighbour dispute, you should weigh the expense of a real estate agent versus a barrister. Family counsellors for marriage troubles are definitely cheaper than family lawyers. I'm not suggesting other professionals can definitely fix your problems, but they might provide a more graceful exit to them than would litigation.

However, sometimes going to court will be the only option. 

Step Two - Clarify the True Cost of the Barrister

Demand up front from the barrister a fair assessment of fees for your matter, and in turn be prepared and realistic about your ability to fund those fees. Push the barrister for a block flat fee if possible, even if it's only for specific stages of a case, as that will best control and predict your costs. 

If fees need to be hourly, make the barrister explain why. And don't make the mistake of thinking a lower hourly rate will necessarily lead to a lower cost of the case, since a cheaper by the hour barrister might have less experience, and consequently wind up spending more time on your case. 

Also don't be shocked by barrister fees. Many solicitors actually take home more money than barristers, but people don't complain about their seemingly "smaller" fees which are based on volume and where much of the work is being done by trained clerks. By comparison, barristers will be doing most of your work themselves, and court cases tend to suck up an enormous amount of lawyer time as compared to a simple real estate transaction which a lawyer might only personally spend one or two hours working on. 

If you can't afford the fees, tell that to the barrister upfront. There may be less expensive ways of proceeding available, even if they're not the preferred ways of proceeding. Don't mislead yourself about being able to afford a potentially very costly case because you think it will settle. You always need to plan for the worst case scenario when it comes to litigation. 

Regardless of whether the fees are block or hourly, don't let the barrister be vague about how extras like "disbursements" can drive up those fees. Establish at the start if there are likely to be significant disbursements like transcript costs, expert witness fees, or printing and binding fees. 

A rule of thumb is that criminal cases tend to be cheaper than civil cases - even small claims - because they simply take up less barrister in-court and preparation time, settle at earlier stages, and involve fewer pre-trial proceedings. You'll usually be able to get a block fee from a barrister for a criminal case, but civil cases will usually be hourly because they're less predictable. 

Costs of appeals for civil or criminal cases depend upon the complexity of the trial; a four week trial with 500 exhibits is going to cost more to appeal than a one day trial with five exhibits. But you may be able to get a block fee quote for an appeal - all the appeals I take on are done as block fees. 

Step Three - Work Collaboratively with the Barrister

Press the barrister from the start of the relationship on what he or she needs from you. You giving the barrister appropriate help from the get go will make the relationship far more successful and cheaper for you. 

Does the barrister want a factual chronology? A list of witnesses together with their addresses and phone numbers? Copies of possible court exhibits, including photos? You won't be able to anticipate all barrister needs, so ask. If you're having trouble getting direct answers on needs from the barrister, press the barrister's law clerks for what kinds of things they usually collect for cases. You need to work collaboratively with the barrister. 

Your physical health is a collaborative endeavour with your family doctor. Same with your legal health where your barrister is concerned. 

If the barrister seems completely disinterested in your opinions, and your collaboration, find another barrister. 

Don't make the mistake of thinking that your only obligation in working with a barrister is paying the bills. Really your barrister is more of an interpreter, and negotiator and intermediary between you and the court; your barrister isn't your replacement or doppelgänger. Making your barrister relationship the most result and cost effective possible requires your full participation in the case.

Step Four - Continuously Evaluate What Would be an Acceptable End Result

Evaluate in advance of retaining the barrister, and continuously reevaluate during the course of your barrister-client relationship, what would amount to an acceptable court result or end game for you. Don't enter the relationship with vague notions of "total victory" as even if your barrister gets you to that point, you might might no longer be capable of recognizing what victory looks like after you've been in the court process for too long. So be realistic in your court outcome expectations, and continually examine the options you're presented with for getting off the litigation treadmill. 

I'm not saying you can't aim higher than the minimum acceptable result, just that you need to consider your options from the start. It might take you weeks of careful reflection to figure out what result you really want. You'll have the necessary time to reflect if you consider things from day one of the barrister-client process. You might only have 24 hours to decide on a deal once a firm offer is made. If you really didn't "do it" in a criminal case, then make clear up front to your barrister that the only acceptable result to you is full exoneration. That way he won't waste his time trying to negotiate a deal for you, but rather will first try to convince the Crown to drop the charges, and second will simply prepare to take your case to trial. 

In civil cases, an acceptable result might be more intangible. One crucial factor you must consider is that you don't want to spend more on barrister fees than you save in settlement payments. As much as you don't want to give the other side a penny of your hard earned money, a good barrister will be frank with you about when your legal costs will outweigh your potential civil windfall.

For instance, if you hire a lawyer to sue someone in small claims court for $5000 in damages, get a judgment for $4000, get $750 in court costs, and pay $5000 in legal fees, and you'll be $250 poorer than when you started. But get a judgment for $20,000 with $3000 in court costs, and you'll be $18,000 ahead on that same $5000 amount of legal fees. So for civil matters, you need to be really careful in evaluating how much your case is worth - regardless of whether you're the plaintiff or defendant. 

If any barrister you're considering retaining seems reluctant or evasive to ballpark what kind of legal fees you might be facing at different stages of your case, and will only reveal his or her hourly rate, find another barrister.

But there are things worth fighting for, even if fees climb. For the control and survival of your business. To be able to continue to practice your profession. For the custody of your children. Just be realistic about what result you can live with, based on asking your barrister about the likely outcomes. But because your barrister may have hundreds of clients, don't expect him to be able to pry out of you what you really want, and to read your mind, if you don't tell him. 

HOW TO CLAIM CANADIAN CITIZENSHIP BY BIRTH OR DESCENT - A GUIDE ESPECIALLY OF INTEREST TO AMERICANS

In 2017 I’ve seen a huge uptake in potential client enquiries, especially from Americans, about confirming their proof of Canadian citizenship.

Canada has one of the world’s more liberal citizenship regimes, where you can be eligible for Canadian citizenship and acquire proof of that citizenship primarily by way of: (1) location of birth in Canada; (2) at least one parent being a Canadian citizen; or (3) by a naturalization application process after being accepted as a permanent resident.

THE SIMPLICITY OF CANADIAN BIRTHRIGHT CITIZENSHIP - JUS SOLI (RIGHT OF SOIL)

Lawyers love Latin, and citizenship law is no exception. Jus Soli is the technical legal term for citizenship acquired through birth. Only about 30 countries in the world - almost all of which are in North and South America - unconditionally grant citizenship to anyone born within their territories.

Lex Soli is the term used for the body of law governing if and how Jus Soli applies. Canada does have a narrow exception to Jus Soli in that if neither parent is a Canadian citizen or permanent resident, and either was employed at the time of birth by a foreign government or international organization in Canada, then you’re not entitled to Canadian citizenship even if you’re born in Canada. This is more than a theoretical exception, as Canadian-born Deepan Budlakoti found out when he was effectively rendered stateless through this process. 

A certified copy of your birth certificate from a Canadian province or territory is the main document you’ll need to submit with your application to claim Canadian Birthright Citizenship.

THE COMPLEXITY OF CANADIAN CITIZENSHIP BY DESCENT - JUS SANGUINIS (RIGHT OF BLOOD)

Citizenship by Descent - also known as Jus Sanguinis for Latin lovers - gets more complicated than Birthright Citizenship. There are several exceptions to Jus Sanguinis in Canada, and not just who you were born to but also your date of birth can be very important.

Generally the Citizenship Act grants Canadian citizenship to those born outside Canada to at least one Canadian parent, but the Act was recently changed to limit that citizenship by descent to one generation, meaning the children of children who so acquired citizenship by decent won’t also become Canadians automatically. Thus you’re a Canadian if one parent was a Canadian, but not if only a grandparent was a Canadian. 

While the “first generation” rule only came into force on 17 April 2009 and is not retroactive, chances are unfortunately slim to none of being able to claim back past that point. There have been lots of tweaks to the Citizenship Act over the years to address injustices inflicted on various classes of people (often women) losing their citizenship, as well as streamlining inconsistent rules saying things like births abroad needed to be registered by a certain age, or those born abroad needed to actually claim their citizenship by a particular age in order to preserve it. But for the most part, the Government of Canada seems to have already done all the cleanup it is going to do in restoring citizenships lost, and there is a worldwide trend towards making citizenship claims more and more challenging (including in many countries even if you were born there).

So basically if you have an ancestor who defended what is now Canada during the War of 1812, but who decided in 1815 that life really was better south of the border, don’t hold your breath over making a claim. And even an ancestor defending Canada during the Great War of 1914 is getting pretty remote.

For proof of citizenship by descent, in addition to a copy of your birth certificate from the country in which you were born listing the names of your Canadian parent(s), you’ll also need proof of at least one of them being Canadian such as their own birth certificates or their citizenship certificates.

You’ll also need certified translations of any documents in languages other than French or English. 

Unlike Birthright Citizenship, Citizenship by Descent can get very complicated. If you’re beyond the first generation born abroad, and a parent didn’t assert a claim before you, it’s unfortunately probably too late for you now even if born prior to 2009. But the only way to find out for sure would be to submit an application to Immigration, Refugees and Citizenship Canada - at a current cost of $75 in government processing fees, it’s a pretty modest investment, with the worst outcome being they say “no.” Here’s the government link: https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/proof-citizenship.html

WHY YOU NEED TO APPLY AS SOON & AS COMPLETELY AS POSSIBLE FOR PROOF OF CANADIAN CITIZENSHIP

Current Government of Canada processing times for proof of citizenship usually range from about five months to a year, depending on the complexity of your application. Even the slightest error in the documents you submit can result in your application being returned and you having to completely restart the process. Thus you should apply as soon and as completely as possible. You’ll find all the required government application forms online, including an estimate calculator for current processing delay times.

Obtaining proof of citizenship is something I tell my clients they can do for themselves. But if success on the first try and in as rapid a means as possible is important to you, consider using an immigration lawyer. Our fees (and the fees of most other lawyers who handle citizenship) aren’t especially high as compared to other kinds of more complicated immigration processes.

Our firm charges $2500 Canadian for the entire citizenship confirmation government process, plus disbursements (which are usually fairly minor). For those born beyond the first generation, because of the unlikelihood of success, we suggest you just try yourself if you really want to find out. But we don’t want to tell you it’s completely impossible, as there can be rare exceptions, and ultimately we’re not the decisions makers, only the Government of Canada can tell you for sure whether you qualify or not.

Gordon S. Campbell has served as legal counsel to the Department of Immigration, Refugees & Citizenship Canada as well as the Canada Border Service Agency, and litigated public law cases as high as the Supreme Court of Canada. He now helps individuals and businesses with their citizenship and immigration needs.

NO FEAR FAMILY LAW: TOP 3 TIPS ON HOW TO PREDICT FAMILY LAW COURT RESULTS

I'm not a fortune teller. I can't predict the future. But I can often predict family law outcomes, because the legal principles are so simple.

That's not true with every area of the law. Some practice areas are terribly complex. But not family law. It's the facts that get complicated - decades long decontructions of relationships - not the law.

"No Fear" Family Law aims to take away the fear of the unknown, and empower clients with knowledge of likley outcomes that usually aren't as bad as they fear. Here are three of my top likely outcome tips.

1. Shared custody - Custody will probably be shared if that is what the parents want, with no child support being payable. There are exceptions, but you may have a major fight on your hands to convince a court to give you an exception because of the fundamental principle that the best interests of the child involve maximizing contact with both parents.

Even where child support is payable, it will be according to a fixed table amount created by the legislature. Plug in numbers of children and parental income, and it spits out a number. Simple. What are known as "special and extraordinary expenses" - dentist, soccer, summer camp - are split as a percentage between the parents according to their respective incomes, even where no child support is being paid.

2. Equal split of property - Matrimonial property will be split evenly, except for property that was brought into the marriage. Again, there are some exceptions, but for long term relationships, splitting things down the middle is the norm since usually most of what couples have was acquired jointly, or at least shared jointly. Owning a business could introduce some complexity to this split, especially where both spouses have involvement in the business.

3. Spousal support depends on income disparity and length of relationship - Spousal support will only be payable where there is significant income disparity, and then only for about 3 years, unless it is a long term relationship in which case lifetime support may be payable, subject to a change of circumstances where the recipient spouse is later earning enough for self-support.

Unlike child support, there’s unfortunately no simple math formula for spousal support. Often about 20 to 25% of the payor’s pretax income is ordered in spousal support, but those payments will be tax deductible in the payor’s hands, and taxable in the recipient’s hands (child support is the opposite: taxed in the payor’s hands and not taxable in the recipient’s hands).

The major challenge in determining a fair level of spousal support is that income must be fairly established, as the claimant may focus on that one year with a very high income in the past, and the payor's income may have fallen dramatically because of the family breakup.

Although you might be hoping for different outcomes than my top 3 predicted family law outcomes, you'll have to fight very, very hard, have very compelling facts, and have considerable legal resources to achieve dramatically different results. But definitely details on how these results are implemented are very important to negotiate or have a court decide upon, and can vary greatly from case to case.

Read More About "No Fear" Family Law.