Bucket List of Top 5 Legal Things You Should Do Before You Die

I like those bucket list books as much as anyone. 100 places to see before you die. 100 foods to try before you die. 100 adventures to have before you die. 

We might like the lists as much for proving to ourselves we've actually done a few (maybe very few) of those things, as we do for their giving us new ideas of places, food and things to do! 

I've never heard of a bucket list of legal things to do before you die. So I'm giving you my top five legal things you should do before you die list. And unlike those other lists, for these you really do need to get through all of them - even if it takes you a few years. It's never too late. 

1. Make a Will

Even if you don't think you've got much in the way of property or dependants, no one knows better how things should be taken care of after you pass than you do. Everyone needs a will. And I do mean everyone. 

2. Make a Continuing Power of Attorney for Property

With people living longer and longer, there's an ever increasing risk that you might become mentally incapable long before you die. You need someone other than the government who is empowered to look after your property, including being able to use your assets to pay for your care.

3. Make a Power of Attorney for Personal Care

You know best what kinds of medical decisions you would like to be made about your life, and a power of attorney for personal care in Ontario (sometimes called by other names elsewhere) is the only way to pass on those wishes if you're incapacitated.

4. Update Your Life Insurance Beneficiaries

Contrary to what many people think, life insurance does not pass through a will if you've named particular beneficiaries in an insurance policy. If you're younger, life insurance might be your greatest asset, but your personal circumstances could have changed from the time you originally named beneficiaries. Make sure the person(s) you wish to receive your insurance payout really are the ones named in the policy. 

5. Ensure Someone Knows Where all Your Legal Documents Are  

While a few smart places (like Quebec) have government registries for wills, most (like Ontario) don't. So it won't matter how many of these things you've crossed off your bucket list if no one can find the documents you've created!

Ideally, you'll leave them with the lawyer who drafted them. But lawyers get old just like everyone else, and the documents could be difficult to track down. So make sure someone you trust - preferably your executor - knows where to find the documents, and absolutely don't leave them in a safety deposit box because no one may be able to access it without possession of the documents that you've locked in the box. 

Top 5 Things Never to Do in a Property Dispute

I’ve devoted much of my legal career to attempting to demystify the law for people. To convince them that lawyers don’t hold all the secrets to the black letter law arts, and that everyone can read and interpret the law - though getting a lawyer’s advice is always helpful. 

But there are unfortunately some areas of law that are a lot more impenetrable than others, usually because of two factors:

1. the amount of time the area of law has been in existence;
2. a lack of legislative codification.

Meaning 500 years of cumulative law is a lot more difficult to figure out than 50 years of law, and a well organized 500 pages of law that has been recently refined by the legislature is much easier to deal with than 50 separate statutes passed over the last 100 years

Real property law unfortunately falls into the just really complicated category of law that’s been around a very long time, and is spread over an awful lot of statutes. It’s especially too bad for it to be so complicated, as a very large number of Canadians will have reason to be involved with it over the course of their lifetimes in buying or selling property, as compared to other more niche areas of the law which might be easier to figure out, but where few people will ever need to understand them.

I find disputes over real property all too common, and they tend to take on a nasty tinge that only neighbours who aren’t related to each other, but are still stuck coexisting side by side, seem to be able to develop for each other. Perhaps it's the helpless feeling of being stuck next to someone, and perhaps even seeing them every day, but not being able to interact with them to resolve the issues involved.

Some of these disputes can be resolved without going to court, though I find some lawyer involvement is usually necessary to figure out what each party's rights truly are. Occasionally only a court can sort out who has which real property right, and what's the appropriate remedy to enforce those rights. 

Here are my top five things to never do in a property dispute. 

1. Lack evidence

In almost any legal dispute, the burden of proof is on the party making the argument for the remedy. So if you think you have a right to cross your neighbour’s backyard in order to get to your garage because all owners of your property for the past 40 years continuously have been doing just that, you better be sure of your evidence. Knowing you’re right, and being able to prove it, are not the same thing. 

2. Fail to get a survey

It's easy to think you know where the boundaries of your land are. But do you really?

Just because you think the property line is where the fence is, if you don’t have a recent survey prepared by a licensed surveyor, you need to get one done. Surveys are endlessly useful, not just in establishing boundaries, but also for determining where easements sit, how far an encroachment cuts into your property, or just generally as an aid to later selling your house because buyers can have confidence in knowing exactly what they are buying.

3. Fail to get a title search

It's also easy to think that you have absolute ownership over your property, but in fact none of us does other than the Crown. At best, we own “fee simple” which still means Crown title underlies our land (thus making things like expropriation possible). And sometimes there could be all sorts of other rights or charges registered on our land that we don’t know about. 

Only an up to date and probing title search, carried back sufficiently in time (rather than just looking at the last transaction) will truly tell you about the rights hovering over (and under) your property. 

4. Fail to make a title insurance claim

Title insurance is increasingly common, and could pay all your legal fees or damages if you wind up with a previously unknown title problem to your land after you’ve closed a purchase for which you bought residential or commercial title insurance at the same time.

There's a lot of paper produced at the time you buy real property, so it's understandable you might not have poked into that thick reporting package envelope your real estate lawyer sent you all those months or years ago. But go take a look. 

You might discover a few pages mentioning that you did indeed agree to buy a policy from one of the major providers like First Canadian Title or Stewart Title. There's no guarantee (like any insurance policy) that they'll cover your loss, but there is no downside to making a claim. 

My personal experience is that sometimes you'll get coverage, and sometimes you won't, with the results really depending on your factual situation as compared to the wording of your policy. It's often helpful to retain a lawyer to assist you in making a claim because of the complexity of property law, but it's not required. 

5. Fail to get legal advice prior to acting

A couple of hours of legal advice from a lawyer is a bargain compared with the dozens or even hundreds of hours that can be burned through in a court case if you proceed to do something on your land that it later turns out you had no right to do, like block a laneway, cut down trees, or erect a fence. 

I offer you this suggestion not out of self-interest - I make more off court cases than I do legal opinions - but rather because of the unfortunate real property difficulties I see people get themselves into time and time again, that can be very costly to dig out of, and that are completely avoidable with a little advice.

The Top Reason to Never Do Your Own Separation Agreement or Divorce & It's Not Because Lawyers Need All Your Money

The vast majority of family separations and divorces are settled out of court. Only about 1% of family cases in Canada actually get to trial. But building a solid family law settlement is somewhat analogous to building a sound house: you've got to start with a good foundation, and while you might be able to do a bit of wiring and plumbing yourself, foundations are best left to the professionals. 

DIY agreements live in the moment

Many of the family law cases I assist clients with in court as a barrister started years before I got involved. Couples with good intentions, full of emotions surrounding a separation, worked out agreements that seemed reasonable at the time, and committed them to paper. 

Usually those agreements took up only one or two pages for the couples to draft the key points that were important to them at the time. Sometimes they validated the agreements through obtaining consent court orders, and were reassured that because there was a court seal on their agreements, they must be legal and binding for all time. Sadly, they couldn’t be more wrong. 

If there’s something to potentially fight over you need a lawyer

If separating couples have no children, truly no assets, and very modest incomes, they may not need a lawyer because there really isn’t anything to fight over. Everyone else needs legal advice, and a lawyer to draft their separation agreement. Trust me on this. I’m a lawyer. Would I lie to you?

After the separation agreement is done, you might be able to do your own divorce (though the additional the cost of doing a divorce at the same time as the separation agreement is negligible). But it’s the separation agreement that’s the foundation for the post-marital house the former spouses will both be stuck inhabiting for a long time to come.

And the top reason is ...

The top reason to never do your own separation or divorce is because your mutual no-lawyers agreement won’t resist future discord between you and your former spouse. It won’t be resilient. And it won’t stand up in court. 

So long as you and your former spouse will get on well for decades to come, the DIY agreement may be just fine. But if you got on really well as a couple, you probably would not have split up to start with. Thus just as with marital relationships, post-marital relationships (including post-common law relationships) will have their ups and downs. I know I’m stating the obvious, and I’m not a psychologist, but my goal is to explain what I observe on a daily basis as part of my practice to be the adverse legal consequences of those ups and downs. 

When you’ve got an up, both parties might honour a DIY agreement, though its lack of detail may cause tensions because children’s holidays, or expenses, or division of family property really weren’t sorted out in sufficient detail after all. When there’s a down, the entire agreement may be repudiated, with one of the ex-spouses now claiming retroactive child support, retroactive spousal support, and a redivision of the family property right back to the time of separation. And they might win.

Beware current online separation agreement tools

As Canada’s former Director of E-Business Development, I love technology. I believe it to be the future of legal practice, and the best hope for improving lawyer-client engagement and court efficiency. But current online technology is decades away from being a substitute for sound legal advice from a licensed lawyer. 

There are now some amazing online family law tools available, most notably www.maysupportcalculator.ca/calculator which is great for figuring out likely amounts of child and spousal support; it’s a giveaway from the software creators of DivorceMate that all lawyers use. But online fill in the blanks separation agreements just won't cut it until artificial intelligence advances greatly.

If you wouldn’t dream of taking out your own appendix, then you shouldn't be trying to do your own separation agreement. DIY for either has huge risks of future complications, even if you survive the initial process. 

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.