Private client law in Canada: overview

A Q&A guide to private client law in Canada.

The Q&A gives a high level overview of tax; tax residence; inheritance tax; buying property; wills and estate management; succession regimes; intestacy; trusts; co-ownership; familial relationships; minority and capacity, and proposals for reform.

To compare answers across multiple jurisdictions, visit the Private client Country Q&A tool.

The Q&A is part of the multi-jurisdictional guide to private client law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateclient-mjg.

Margaret R O'Sullivan, O’Sullivan Estate Lawyers Professional Corporation
Contents

Taxation

Tax year and payment dates

1. When does the official tax year start and finish in your jurisdiction and what are the tax payment dates/deadlines?

Canada's constitutional system is a federal one. Income tax is imposed by the federal government as well as by the provincial and territorial governments. Unless specifically stated otherwise, the answers in this chapter relate to federal laws and when applicable, the laws of the Province of Ontario.

The tax year for individuals (including estates) and inter vivos (lifetime) trusts is the calendar year. The tax year for testamentary trusts is the period for which the accounts of the trust are made up for tax purposes.

Taxes are due as follows:

  • Individuals: 30 April of the following year.

  • Individuals deceased between October of the taxation year and May of the following year: the day that is six months after the day of death, otherwise 30 April of the year following death.

  • Trusts: the day that is 90 days after the end of the year.

Taxes for self-employed individuals and trusts are payable in quarterly instalments. The instalments are payable on 15 March, 15 June, 15 September and 15 December in each taxation year. Each instalment is one-quarter of either:

  • The estimated tax payable for the year.

  • The taxpayer's instalment base for the immediately preceding taxation year.

The final instalment is the remainder of the tax and is payable on the due date.

Domicile and residence

2. What concepts determine tax liability in your jurisdiction (for example, domicile and residence)? In what context(s) are they relevant and how do they impact on a taxpayer?

Domicile

The concept of domicile is not relevant for taxation in Canada.

Residence

The primary basis for taxation in Canada is the residence of the taxpayer. Residence in Canada is generally determined by factual criteria.

An individual is resident in Canada if Canada is the place where the individual, in the settled routine of their life, regularly, normally or customarily lives. In addition, an individual who sojourns (that is, temporarily resides) in Canada for 183 or more days during a year is deemed to be resident in Canada throughout that year (Income Tax Act (Canada)) (Tax Act).

A taxpayer who is resident in Canada under Canadian domestic law and is also resident in another country may be deemed by a tax treaty to be resident in only one country for tax purposes.

Taxation on exit

3. Does your jurisdiction impose any tax when a person leaves (for example, an exit tax)? Are there any other consequences of leaving (particularly with regard to individuals domiciled in your jurisdiction)?

An individual who ceases to be resident in Canada is deemed to dispose of and reclaim the property they own (subject to exceptions including for certain Canadian real estate, business property and registered plans) at fair market value (FMV). The resulting capital gain is subject to tax in Canada. Payment of the departure tax can be delayed by posting security to the Canada Revenue Agency (CRA). A subsequent loss on the property can offset the gain.

Temporary residents

4. Does your jurisdiction have any particular tax rules affecting temporary residents?

The deemed disposition and reacquisition on emigration (see Question 3) does not apply to property held by individuals who have been resident in Canada for a period or periods totalling five years or less in the ten years preceding departure, if such property was acquired before the time when the individual last became resident in Canada or was inherited.

A person who becomes a Canadian resident under certain conditions may avoid Canadian tax on foreign investments for up to five years by forming an immigration trust. Income and capital gains in the immigration trust accrues tax-free for up to 60 months. Such trusts settled in foreign jurisdictions (including low-tax offshore jurisdictions) with foreign trustees who hold the foreign investment assets can benefit from significant tax savings depending on comparative tax rates.

Temporary residents are subject to tax on their worldwide income if they meet the residence tests (see Question 2).

Taxes on the gains and income of foreign nationals

5. How are gains on real estate or other assets owned by a foreign national taxed? What are the relevant tax rates?

Non-residents are subject to tax in Canada on gains realised on the disposition of taxable Canadian property (TCP). TCP is generally limited to:

  • Real property situated in Canada.

  • Assets used in a business carried on in Canada.

  • A share of a private corporation, an interest in a trust or an interest in a partnership, more than 50% of the value of which was derived from real or immovable property situated in Canada, Canadian resource property, or timber resource property, at any time in the 60-month period before the disposition of such shares or other interests.

  • Units of a mutual fund trust and listed shares of a corporation, where at any time during the 60-month period preceding the disposition, a 25% ownership threshold is exceeded and more than 50% of the value of the units or shares was derived from real or immovable property situated in Canada, Canadian resource property, or timber resource property.

Non-residents are subject to tax in Canada on dispositions of TCP at the same rates as Canadian residents. Capital gains are effectively taxed at half the normal rate, that is, 24.77% in Ontario and 24.99% in Québec (marginal rate in the highest bracket for 2013). Recapture of depreciation is fully taxed at 49.53% in Ontario and 49.97% in Québec. Such gains may be exempt under a tax treaty.

When a non-resident disposes of TCP, the non-resident must obtain a clearance certificate for the disposition, otherwise the buyer is liable to pay 25% (and in some cases 50%) of the purchase price to the Canadian tax authorities, and can withhold that amount on closing. The certificate protects the Canadian government's ability to collect capital gains tax from non-residents. The tax authorities issue the certificate after the non-resident pays 25% of the gain and any tax on recapture (as or on account of tax) or provides security.

There is an exemption from the requirement to obtain a clearance certificate where the property disposed of is listed on a recognised stock exchange or is protected under a tax treaty.

 
6. How is income received by a foreign national taxed? Is there a withholding tax? What are the income tax rates?

The principal sources of income of non-residents that are subject to tax in Canada are:

  • Income from a business carried on in Canada.

  • Income from an office or employment performed in Canada.

  • Certain types of passive income, such as dividends paid by a Canadian corporation or rent from Canadian real estate.

Employment and business income is taxed at regular graduated Canadian tax rates. For individuals, the combined federal/provincial marginal tax rate at the top end of the rate schedule for 2013 is up to approximately 50% on taxable income above Can$135,000 less applicable tax credits. Surtaxes of a province can result in elevated effective tax rates.

A person resident (or deemed resident) in Canada who makes a payment to a non-resident in respect of most types of passive income (including dividends, rent and royalties) is generally required to withhold tax equal to 25% of the gross amount of the payment. Interest that is participating debt interest and interest paid or credited by a Canadian resident to a non-arm's length non-resident person is also subject to withholding tax. Conversely, interest other than participating debt interest paid by a Canadian resident to an arm's length non-resident person is exempt from withholding tax.

The 25% withholding rate can be reduced or eliminated under an applicable tax treaty.

Inheritance tax and lifetime gifts

7. What is the basis of the inheritance tax or gift tax regime (or alternative regime if relevant)?

Unlike most jurisdictions, Canada does not have inheritance tax or gift tax. Instead, Canada introduced capital gains tax in 1972, recommended by the report of the Royal Commission on Taxation (the Carter Commission Report), which aimed to create a comprehensive tax base to fund social programmes. On the making of a gift by, or on the death of, a taxpayer, the capital property owned by that taxpayer is deemed to have been disposed of at that time for proceeds equal to the fair market value of the property. As a result, there is either a capital gain or a capital loss, and in the case of depreciable property, either recapture of capital cost allowance or a terminal loss.

The beneficiary normally acquires the property at a cost corresponding to the deemed proceeds of disposition.

 
8. What are the inheritance tax or gift tax rates (or alternative rates if relevant)?

Canada does not have an inheritance or gift tax. The gain that may be triggered on death is taxed at the normal rate for capital gains. In 2013, 50% of capital gains are included in income upon actual disposition or deemed disposition. A principal residence qualifies for an exemption for capital gains and there is a lifetime exemption (Can$800,000 commencing in 2014) for capital gains on certain qualified business-use property.

When capital property is transferred to a deceased's spouse or common-law partner as a consequence of death, and both the deceased and his or her spouse or common-law partner were resident in Canada immediately before the death of the deceased, the property is deemed to be transferred at its tax cost, so that there is no resulting capital gain. The representative of the deceased can elect out of this spousal rollover (for example, to absorb capital losses or terminal losses in the deceased's terminal year).

The spousal rollover is also available if property is transferred to a trust in favour of a spouse or a common law partner that meets certain conditions, which may allow for some income-splitting.

 
9. Does the inheritance tax or gift tax regime apply to foreign owners of real estate and other assets?

The deemed disposition on death (and the resulting capital gain or loss) applies to non-residents who own TCP (see Question 5).

 
10. Are there any other taxes on death or on lifetime gifts?

After a testator's death or upon an intestacy, a probate application or equivalent court process is often necessary to proceed with the administration of the estate. In this process, probate fees are generally imposed by each Canadian province and territory in the form of a flat fee, or a tax based on a percentage of estate assets. While in past years Ontario provincial probate tax rate was the highest at approximately 1.5%, Nova Scotia's now exceeds Ontario's, with a rate of approximately 1.645% on a large estate as of April 2013. This represents an increase of over 30% since 2000 on a Can$5 million estate and significantly greater than equivalent fees in other Atlantic provinces. Compare these high rates with other Canadian jurisdictions such as Alberta and the Northwest Territories, where fees are capped at a maximum of Can$400. In Québec, probate fees can be avoided entirely through the use of a Québec notarial will.

Particularly in those provinces with a high probate fee structure, the planning technique of creating a second, non-probate will governing private company shares and other assets which do not require a court grant of probate to administer may be available to minimise probate fees and tax.

In Ontario, new sections of the Estate Administration Tax Act will institute new requirements, including a detailed list of assets and their values on probate or equivalent and other tax enforcement measures such as audits, reassessments and penalties. The Ontario government has indefinitely deferred the legislation's original implementation date of 1 January 2013.

There are no other taxes on death.

On a lifetime gift of property, the donor is deemed to receive proceeds of disposition equal to fair market value and the donee is deemed to have acquired it at a cost equal to that value. The gift may therefore result in a capital gain taxable at regular rates.

Taxes on buying real estate and other assets

11. Are there any other taxes that a foreign national must consider when buying real estate and other assets in your jurisdiction?

Purchase and gift taxes

Sales tax (federal and provincial) may apply when assets/property are purchased in Canada. A supply-side tax of 5% on most goods and services, including those made in Canada and imported, and certain property, is levied by Canada. This goods and services tax applies at all stages of production, subject to an input tax credit for tax paid at an earlier stage. Businesses are responsible for collecting and remitting the tax. The tax has been harmonised with provincial sales tax in five provinces, with combined rates between 13% and 15%. Land transfer tax and other property taxes may apply if land or other interests in real estate are being transferred.

Annual rates

The harmonised sales tax rate in Ontario in 2013 is 13%.

Wealth taxes

Capital tax has been, or will soon be, eliminated in all provinces.

 
12. What tax-advantageous real estate holding structures are available in your jurisdiction for non-resident individuals?

If a non-resident individual holds Canadian property that constitutes TCP (see Question 5) through a non-Canadian corporation, the gain on the disposition of the shares of the corporation is exempt from tax in Canada under many of Canada's tax treaties. The corporation can elect to pay tax on rental income associated with such property on a net basis.

Canada's corporate tax rates are substantially lower than its personal tax rates. Accordingly, if a non-resident individual holds TCP through a Canadian corporation or a non-resident corporation, a sale of the property by the corporation is taxed at a lower rate. Branch tax may apply (subject to treaty reduction) to a non-resident corporation if such property was used in carrying on business in Canada. A Canadian corporation is subject to withholding tax (subject to treaty reduction) on dividends to the non-resident individual. Higher personal tax rates apply to ownership by individuals and trusts. Partnerships are treated as flow through entities.

Canada has thin capitalisation rules applicable to Canadian corporations incurring debt directly or through a partnership (and non-resident corporations electing to pay tax on a net basis). These preclude deduction of interest on related party debt that exceeds two times the equity of the corporation (reduced to one and a half times the equity of the corporation effective from 1 January 2013 with any disallowed interest treated as a dividend). Trusts are not subject to those rules.

For land transfer tax purposes in certain provinces, real estate is often held through a nominee corporation which holds legal title.

Taxes on overseas real estate and other assets

13. How are residents in your jurisdiction with real estate or other assets overseas taxed?

Canadian residents are taxed on their worldwide income. Income and capital gains from foreign property are taxed in the same way as income and capital gains from Canadian property. Credits are generally provided for foreign taxes paid.

Canada has a foreign affiliate system. Under this system, the following types of active business income are not taxed in Canada when earned in or repatriated to Canada:

  • Income earned by a foreign affiliate resident.

  • Business income earned by carrying on business in a treaty country (or country with which Canada has signed a Tax Information Exchange Agreement (TIEA)).

Canada does tax passive income earned in a non-resident corporation that is a controlled foreign affiliate.

Canada also has foreign investment entity rules. Under these rules, income earned by a non-resident entity may be subject to tax in Canada. In certain circumstances, income earned by a non-resident trust is taxable in Canada.

International tax treaties

14. Is your jurisdiction a party to many double tax treaties with other jurisdictions?

Canada has an extensive network of treaties which in part aim to prevent double taxation, with about 90 treaties currently in force. A complete list of Canada's treaties is available at www.fin.gc.ca/treaties-conventions/in_force--eng.asp.

Due to differences in the internal taxation law of treaty nations, however, there may be matters not addressed in the treaties (such as mismatches in tax credits and timing). Canada's tax treaties feature tie-breaker rules regarding tax residency for treaty purposes, and reduce the withholding tax required from income relating to non-residents (often to 15% from 25%, and in certain cases to 0%).

Canada has also entered into several Tax Information Exchange Agreements (TIEAs). A list of Canada's TIEAs and information on the status of TIEA negotiations is available at www.fin.gc.ca/treaties-conventions/tieaaerf-eng.asp.

Negotiations between Canada and the United States are in process regarding an Inter-Governmental Agreement relating to the US Foreign Account Tax Compliance Act (FATCA), a US law which imposes strict reporting requirements to the US taxing authority including on financial institutions located in Canada. It is anticipated that Canada will finalise its negotiations with the US by July 2014 to avoid being subject to a 30% withholding tax on US source payments.

 

Wills and estate administration

Governing law and formalities

15. Is it essential for an owner of assets in your jurisdiction to make a will in your jurisdiction? Does the will have to be governed by the laws of your jurisdiction?

Although it is desirable, it is not essential for an owner of assets in Canada to make a will dealing with those assets. Without a will, the respective intestacy rules of each province and territory apply.

A will made under the law of a foreign jurisdiction can apply to assets in Ontario. However, the terms of the will must be consistent with applicable law (see Question 18).

 
16. What are the formalities for making a will in your jurisdiction? Do they vary depending on the nationality, residence and/or domicile of the testator?

Each province and territory will have its own formal requirements for making a valid will. Under Ontario law, a will must be in writing and signed at its end by the testator. It is then valid if either:

  • It is signed by the testator in the presence of two witnesses who each sign the will in the presence of the testator.

  • The will is wholly in the handwriting of the testator (that is, a holograph will).

If a witness to the will is a beneficiary or a spouse of a beneficiary the gift to the witness may be invalidated, even though the will's execution will be valid.

A will is considered valid as to formality if it is made in compliance with the internal law of the place where one of the following applies:

  • The will was made.

  • The testator was then domiciled.

  • The testator then had their habitual residence.

  • The testator then was a national if there was in that place one body of law governing the will of nationals.

Redirecting entitlements

17. What rules apply if beneficiaries redirect their entitlements?

A beneficiary can disclaim a gift by will and an entitlement on intestacy. A disclaimer, and a release or surrender in certain circumstances, is not considered to be a disposition for tax purposes. Otherwise, a variation effected by agreement is considered to effect a disposition.

Validity of foreign wills and foreign grants of probate

18. To what extent are wills made in another jurisdiction recognised as valid/enforced in your jurisdiction? Does your jurisdiction recognise a foreign grant of probate (or its equivalent) or are further formalities required?

For the recognition of the validity of a will in respect of formal requirements, see Question 16.

A testator can generally choose the governing law regarding construction and interpretation of the will.

The material or essential validity of a will in respect of an:

  • Interest in immoveables such as land, is governed by the internal law of the place where the land is situated.

  • An interest in movables is governed by the internal law of the place where the testator was domiciled at the time of their death.

Validity of foreign grants of probate

As a practical matter in many cases, where a foreign grant of probate (or equivalent) has been obtained, it is necessary to obtain resealing (where the foreign grant was made in the UK, another province or territory of Canada or any British possession) or an ancillary grant in order to administer assets in each Canadian province or territory.

Death of foreign nationals

19. Are there any relevant practical estate administration issues if foreign nationals die in your jurisdiction?

There are no particular practical issues if foreign nationals die in Canada.

Administering the estate

20. Who is responsible for administering the estate and in whom does it initially vest?

Responsibility for administering

The personal representative is responsible for administering the estate.

The personal representatives are either executors, who are appointed by the will, or administrators, who are appointed by the court.

The role of the personal representatives is, subject to the terms of the will, to:

  • Collect in the assets of the deceased and manage them until distribution.

  • Pay the debts of the deceased from the estate.

  • Pay the taxes of the deceased and of the estate as well as the estate administration costs from the estate.

  • Distribute the remaining assets in accordance with the terms of the will (or the intestacy rules to the extent there is no applicable will).

Where trusts are created by the terms of a will, the same persons are commonly (but not necessarily) appointed as both executors and trustees.

Vesting

The deceased's estate vests in the personal representatives on the death of the deceased. Where there is a will, an executor's authority derives on death of the testator from the will and probate is the proof of that authority and that the will is valid.

 
21. What is the procedure on death in your jurisdiction for tax and other purposes in relation to:
  • Establishing title and gathering in assets (including any particular considerations for non-resident executors)?

  • Paying taxes?

  • Distributing?

Establishing title and gathering in assets

When a testator dies, the personal representative typically submits the will to probate or equivalent court process, where it is validated and the executors' appointment as legal representatives is confirmed. Through the probate process, the will and supporting documents, which may include a detailed asset listing, become public. In some provinces, particularly those with a high rate structure to probate a will, the technique of creating a second, non-probate will which governs private company shares and other assets which do not require probate to administer is often used to minimise probate fees and tax. In Ontario, probate of a will is called a certificate of appointment of estate trustee with a will (Certificate).

A Québec notarial will need not be submitted to probate in that province.

Procedure for paying taxes

Generally, probate fees are either levied in the form of a flat fee, or tax based on a percentage of estate assets. In Ontario, the tax is called estate administration tax (EAT) and is calculated at about approximately 1.5% of the gross value of the estate (deducting only amounts secured by mortgage and excluding real property situated outside Ontario), which amount is payable to obtain the certificate. Where a foreign probate is re-sealed or an ancillary grant is obtained, the tax is in respect of the property situated in Ontario. While Ontario once had the highest provincial probate tax rate, Nova Scotia's has surpassed it in recent years with a current rate of approximately 1.645% on a large estate as of April 2013. This is an increase of over 30% since 2000 on a Can$5 million estate and significantly greater than equivalent fees in other Atlantic provinces.

Since the increase in what is now the EAT in the early 1990s in Ontario, practitioners typically attempt to avoid or minimise payment of EAT. Strategies include:

  • Using dual wills (one will to deal with assets for which a Certificate is expected to be needed and one for assets for which a Certificate is expected not to be needed).

  • Using inter vivos trusts (particularly trusts satisfying certain requirements under the Tax Act, known as alter ego trusts and joint partner trusts).

  • Making inter vivos gifts.

  • Placing property in joint ownership (so that the right of survivorship applies).

In addition, designations can be made under insurance policies and various savings and pension plans so that the entitlements pass outside the estate.

Distributing the estate

Before distributing the estate, the personal representatives should consider:

  • Obtaining clearance certificates from the Canada Revenue Agency in respect of taxes of the deceased and of the estate.

  • Advertising for creditors.

  • Obtaining releases and/or indemnities from beneficiaries or, if satisfactory releases cannot be obtained, the personal representative can go through a process known as passing his or her accounts in the court (this may also be required to obtain a court order providing for the personal representative's remuneration).

 
22. Are there any time limits/restrictions/valuation issues that are particularly relevant to an estate with an element in another jurisdiction?

A clearance certificate is required where a Canadian estate makes a distribution to a non-resident beneficiary in satisfaction of the beneficiary's capital interest in the estate if the interest is TCP (see Question 5).

 
23. Is it possible for a beneficiary to challenge a will/the executors/the administrators?

The validity of a will can be challenged on the basis of the following:

  • Non-compliance with formality requirements.

  • Lack of mental capacity.

  • Undue influence.

  • Lack of knowledge and approval of the terms of the will.

  • Forgery or fraud.

The administration of the estate by personal representatives can be challenged by those with an interest in the estate. Where this occurs, it is usually dealt with in the passing of accounts procedure (see Question 21), which can be initiated by the beneficiaries as well as the personal representatives. Beneficiaries can file notices of objections to the accounts of the personal representatives which are determined by the court if not settled consensually.

 

Succession regimes

24. What is the succession regime in your jurisdiction (for example, is there a forced heirship regime)?

Succession to property on death is a matter within the jurisdiction of the provinces and territories in Canada. Of Canada's ten provinces and three territories, 12 are governed under the common law, and one, the province of Québec, under the civil law.

There is no forced heirship in Canada. In all provinces, a dependant can claim support from the deceased's estate by applying to the court if the will or intestacy rules did not make adequate provision for their support, provided the applicant stands in a certain relationship with the deceased (typically including a spouse, de facto spouse or minor child) and the deceased was supporting them or was under a legal obligation to do so at the time of death. The amount of support is determined circumstantially and through judicial discretion, usually taking into account needs and means. Some provinces, such as British Columbia, recognise a moral entitlement to share in a deceased's estate and will vary the distribution in a will or award support on this basis.

Several provincial matrimonial property regimes provide a surviving spouse with certain property rights on the first spouse's death. For example, in Ontario and in the case of married spouses, on the death of one of them, the survivor is also entitled to elect to take equalisation of net family property, in place of the provision made by the deceased's will or the intestacy rules. Generally, the equalisation of net family property entitles the survivor to an amount equal to one half of the increase in value of the spouses' property during the marriage, excluding gifts and inheritances. If such an equalisation claim is made, he or she usually loses entitlements, if any, under the deceased spouse's will and certain other benefits.

Forced heirship regimes

25. What are the main characteristics of the forced heirship regime, if any, in your jurisdiction?

Not applicable.

Real estate or other assets owned by foreign nationals

26. Are real estate or other assets owned by a foreign national subject to your succession laws or the laws of the foreign national's original country?

Succession to movables is generally determined by the internal law of the place of domicile of the deceased. Succession to immovables is generally determined by the internal law of the place where the property is located (its situs).

 
27. Do your courts apply the doctrine of renvoi in relation to succession to immovable property?

Where succession issues concern immovable property, Ontario courts apply the internal law of the place where the property is situated, including the case when conflict of laws rules of the place would apply Ontario law.

 

Intestacy

28. What different succession rules, if any, apply to the intestate?

Each Canadian province and territory provides for its own statutory scheme of property division on an intestacy: typically between the testator's surviving spouse and children, if any, failing which to other relatives as specified.

In some provinces, the surviving spouse is allotted a preferential share prior to dividing the estate between spouse and children. In this context, spouses are married spouses including same-sex married spouses and in some provinces and the territories also de facto spouses providing certain conditions are met.

In Ontario:

  • Where the deceased is survived by a married spouse and no issue, the spouse obtains the entire estate.

  • Where the deceased is survived by a married spouse and children (including the issue of a deceased child):

    • the spouse receives Can$200,000;

    • the spouse receives one half of the balance (where there is only one child) or one-third of the balance (where there are two or more children);

    • the children (or issue representing deceased children) share the rest equally.

  • Where the deceased is survived by children (or issue representing deceased children), and no spouse, the children share equally.

  • Where the deceased is not survived by a spouse or issue and is survived by one or both parents, the parents are entitled.

  • Where the deceased is not survived by a spouse, issue or parents, siblings share equally (with a child of a deceased sibling representing the deceased sibling).

  • Where none of the above survive the deceased, the deceased's estate is distributed "among the next of kin of equal degree of consanguinity to the intestate equally without representation".

  • A court process for letters administration or equivalent provides for the appointment of estate trustees on intestacy.

 
29. Is it possible for beneficiaries to challenge the adequacy of their provision under the intestacy rules?

This is possible (see Question 24).

 

Trusts

30. Are trusts (or an alternative structure) recognised in your jurisdiction?

Type of trust and taxation

Trusts are recognised in Canada. In the Canadian provinces other than Québec, the trust is based on common law principles. In Québec, which is a civil law jurisdiction and therefore does not distinguish between legal and beneficial ownership, the trust constitutes a patrimony by appropriation (that is, a distinct patrimony appropriated to a particular purpose). None of the settlor, trustee or beneficiary have any real rights in the trust property. Instead, the trustee has the control and exclusive administration of trust property.

Trusts can be testamentary or inter vivos, personal or commercial.

Trusts are generally taxed as individuals. Inter vivos trusts are taxed at the highest marginal rate for individuals. Generally, the graduated rate schedule for individuals applies to certain will and testamentary trusts. It is uncertain, however, whether the current tax advantages of income-splitting trusts will continue to be available following the federal government's public consultation on eliminating the graduated taxation rates of testamentary trusts and certain estates, which is in process, and any possible resulting amendments to the Tax Act. It is proposed that the top federal marginal rate be applied to testamentary trusts and to estates after a reasonable period of administration of 36 months.

Transfer of property to a trust is usually a taxable disposition (there are exceptions for some kinds of trusts, such as spousal trusts, joint partner trusts and alter ego trusts, which permit rollover of capital property on a tax-deferred basis, as opposed to triggering capital gains provided certain conditions are met). A trust is only subject to tax on its income to the extent that the income is not paid or is not payable to a beneficiary. The capital of the trusts can normally be rolled out tax free to Canadian resident beneficiaries.

Trusts are generally deemed to dispose of and reacquire their capital property at fair market value every 21 years, unless all interests are vested indefeasibly.

Residence of trusts

A recent decision of the Supreme Court of Canada (Fundy Settlement v Canada, 2012 SCC 14, also known as Garron Family Trust and St Michael' s Trust Corp), has established that a trust is resident where its central management and control takes place, a significant change from the former focus on a trustee's residence. In certain circumstances, the Tax Act deems certain non-resident trusts to be resident in Canada, for example where a Canadian resident has transferred property to the trust.

 
31. Does your jurisdiction recognise trusts that are governed by another jurisdiction's laws and are created for foreign persons?

Canadian law recognises trusts created under the laws of another jurisdiction for foreign persons.

 
32. What are the tax consequences of trustees (for example, of an English trust) becoming resident in/leaving your jurisdiction?

A trust can be immigrated to or emigrated from Canada by changing the place where central management and control is exercised. This generally involves changing its trustees or changing the residence of the existing trustees.

On both immigration to and emigration of a trust from Canada, the taxation year of the trust ends and the trust is deemed to dispose of most of its property and reacquire it at fair market value. The result is that on immigration the cost basis of trust property is stepped up or down to fair market value, and on emigration a capital gain or loss is realised.

 
33. If your jurisdiction has its own trust law:
  • Does the law provide specifically for the creation of non-charitable purpose trusts?

  • Does the law restrict the perpetuity period within which gifts in trusts must vest, or the period during which income may be accumulated?

  • Can the trust document restrict the beneficiaries' rights to information about the trust?

Purpose trusts

In Ontario, statute provides that a specific non-charitable purpose trust takes effect as a power for 21 years.

Perpetuities and accumulations

The common law perpetuity rule applies, modified by a statutory "wait and see" rule in Ontario. Accumulations are restricted in this province by a statute based on the English Accumulations Act.

Beneficiaries' rights to information

It is unclear to what extent a beneficiary's right to information can be modified by the terms of the trust instrument. It would likely be held that the total exclusion of the trustees' obligation to account for their administrations of the trust would be ineffective as being contrary to the core principles of a trust.

 
34. Does the law in your jurisdiction recognise claims against trust assets by the spouse/civil partner of a settlor or beneficiary on the dissolution of the marriage/partnership?

In Ontario, on the termination of a marriage by separation, divorce or decree of nullity as well as on death, each party is, subject to the effect of any marriage contract, entitled to equalisation of the value of net family property. Net family property, in general terms, is the increase in value of the property owned by each party during the marriage, excluding property acquired by gift or inheritance after the marriage. Such property may include the value of an interest in a trust. The court has a wide range of powers, including making orders for transfer of property, to enable the entitlement to equalisation to be satisfied. Unless the trustees could be made parties, it is questionable what ability there would be to make a court order directly against trust assets.

In Ontario and some other provinces, equalisation applies on the death of a spouse, to enable the surviving spouse to obtain equalisation (see Question 24).

Equalisation of net family property in Ontario only applies to married spouses, including same-sex married spouses, although support obligations apply to both legal spouses, and to de facto spouses provided certain conditions are met.

 
35. To what extent does the law of your jurisdiction allow trusts to be used to shelter assets from the creditors of a settlor or beneficiary?

Setting aside of trust settlements. A transfer at an undervalue (including settlement of a trust) can be set aside (Federal Bankruptcy and Insolvency Act) in certain circumstances.

Transferee dealing at arm's length with the debtor. The transfer can be set aside if all the following apply:

  • The transfer occurred within one year of the bankruptcy.

  • The debtor was insolvent at the time of the transfer or was made insolvent by it.

  • The debtor intended to defraud, defeat or delay a creditor.

Transferee not dealing at arm's length with the debtor. The transfer can be set aside if either:

  • The transfer occurred within one year of the bankruptcy.

  • The transfer occurred within five years of the bankruptcy and:

    • the debtor was insolvent at the time of the transfer or was made insolvent by it; or

    • the debtor intended to defraud, defeat or delay a creditor.

Every conveyance of property (including the settlement of a trust) is liable to be set aside if made with intent to "defeat, hinder, delay or defraud creditors or others" of their claims (Ontario Fraudulent Conveyances Act).

Subject to the above provisions, a trust can be used to shelter assets from the creditors of a beneficiary. Such a trust typically involves an interest determinable on insolvency, bankruptcy and other possible events or a discretionary interest, or a combination of these interests.

 

Ownership and familial relationships

Co-ownership

36. What are the laws regarding co-ownership and how do they impact on taxes, succession and estate administration?

Co-ownership consists of joint tenancy and tenancies in common. Joint tenancy usually involves a right of survivorship, so that on the death of one joint tenant, the right of survivorship to the property applies in favour of the surviving joint tenant(s), and the property does not pass into the estate of the deceased joint tenant.

The Supreme Court of Canada in two companion cases, Pecore v Pecore and Madsen Estate v Saylor (both decisions released simultaneously in 2007), clarified the common law presumptions of resulting trust and advancement, which are legal presumptions rebuttable on the civil standard of proof. The court clarified that a recipient of gratuitously transferred personal property is generally presumed to hold it on resulting trust for the donor (or the donor's estate in the case of a deceased donor). The presumption that the property so transferred is advanced to the donee which has historically applied to certain family relationships, now applies only to transfers between a parent and minor child (not from husband to wife or from parent to adult child). The court also canvassed issues of evidence. In Pecore, the court found that a father who had placed financial accounts into joint names with his daughter had an actual intention to gift these, whereas in Madsen the opposite result prevailed.

Tenants in common own "undivided shares", so that on the death of a tenant in common his or her interest passes to his or her estate.

Familial relationships

37. What matrimonial regimes in trust or succession law exist in your jurisdiction? Are the rights of cohabitees/civil partners in real estate or other assets protected by law?

In Ontario, equalisation of net family property applies on separation or termination of a marriage of married spouses which includes death (see Questions 24 and 34). The Ontario property division rules apply if the parties had their habitual residence in Ontario and support obligations (lifetime and on death) also apply to persons who have cohabited for at least three years. A matrimonial home cannot be disposed of in Ontario without spousal consent where spouses are married and a legal spouse cannot contract out of his or her possessory rights in a matrimonial home.

Canada recognises a limited subset of legal rights for unmarried de facto spouses. They are treated similarly to married spouses for various purposes, including taxation and certain government benefits, but substantial gaps remain with respect to property rights on relationship breakdown and death, although this varies by province. De facto spouses frequently make claims based on unjust enrichment.

The Supreme Court of Canada in Kerr v Baranow and Vanassev Seguin (both dated 2011) restated the principles of unjust enrichment and resulting trust that apply to de facto spouses on relationship breakdown. The requirements for a claim are enrichment of one spouse, the corresponding deprivation of another, and absence of a juristic reason (such as a contract). Remedies may consist of constructive trusts and monetary awards, including amounts relating to value received. In the appropriate circumstances, the claimant will be treated as a co-venturer in a joint family venture in order to share in the couple's mutual gains. Indicators of joint family venture include mutual effort, economic integration, intention and priority to the family. A link between contribution and wealth accumulated must also be present. A monetary award is not limited to a value-received approach, and in Vanasse the Court upheld a monetary remedy granted at trial to a partner who had cared for a young family as well as given up career opportunities during a 12-year relationship.

In British Columbia, a new Family Law Act came into force in early 2013 reforming property division in the province by granting equal status to married and de facto spouses (that is, common law couples who have lived together in a marriage-like relationship and have a child with each other regardless of the length of cohabitation) upon separation under the property and pension division provisions, a marked departure from the prior statutory regime.

 
38. Is there a form of recognised relationship for same-sex couples and how are they treated for tax and succession purposes?

There is no special relationship for same-sex couples, who are treated the same as different-sex couples. In 2005, Canada legalised same-sex marriage. As a result, a broad array of statutory and common law rights are now available to same-sex married spouses, including any rights to property division that may exist under provincial family law statutes and under tax legislation. Cohabitation of same-sex couples has the same legal consequences as cohabitation by different-sex couples.

Québec also solemnises a civil union for same-sex or opposite-sex couples which confers similar rights to marriage.

 
39. How are the following terms defined in law:
  • Married?

  • Divorced?

  • Adopted?

  • Legitimate?

  • Civil partnership?

Married

This is defined as the lawful union, in accordance with the form prescribed by the federal Marriage Act, of two persons to the exclusion of all others. Consequently, persons of the same sex, as well as different sex, can marry.

Divorced

The dissolution of a marriage is by decree of the court, based on the breakdown of the marriage, under the federal Divorce Act. Typically, the breakdown is established by at least one year's separation.

Adopted

A child can be adopted under Ontario law according to a court order. The adopted child is treated as the child of the adopting parents and ceases to be considered the child of the natural parents.

Legitimate

This is no longer a relevant term in Ontario law, since there is no distinction in law between persons born out of wedlock and those born within wedlock.

Civil partnership

This is not a relevant term in Ontario law (see Question 38).

Minority

40. What rules apply during the period when an heir is a minor? Can a minor own assets and who can deal with those assets on the minor's behalf?

The age of majority in Ontario is 18 years.

If a minor becomes entitled to property on the death of another, the terms of the applicable will usually provide for a trust for the minor's benefit. If the entitlement arises on intestacy or the will does not include any trust provisions, the minor's property must be paid into court, where it is invested for the minor's benefit until he or she attains the age of majority or it may be paid to his or her legal guardian under court appointment. A government official, called the Children's Lawyer, is responsible for protecting minors' interests.

 

Capacity and power of attorney

41. What procedures apply when a person loses capacity? Does your jurisdiction recognise powers of attorney (or their equivalent) made under the law of other jurisdictions?

If a person who becomes incapable had created a power of attorney which survives incapacity, the attorneys, subject to the terms of the power, have authority to deal with the incapable person's property.

In Ontario, if there is no continuing power of attorney, a guardian of property can be appointed under a statutory procedure. This involves the office of a public official called the Public Guardian and Trustee. In the event of a dispute, the court can appoint a guardian of property.

In Ontario, a continuing power of attorney is valid relating to form if it complies with the internal law of the place where it was executed or where the grantor of the power was domiciled or habitually resident.

 

Proposals for reform

42. Are there any proposals to reform private client law in your jurisdiction?

The Uniform Law Conference of Canada, in August 2012, approved the Uniform Trustee Act, which is meant to serve as a model to the provinces and territories for the purpose of modernising trust law. It would reform both the common law and statutory rules relating to a variety of matters, including the duties and powers of trustees as well as trustee remuneration and the variation, termination and resettlement of trusts. Aside from certain mandatory provisions considered essential to the operation of trusts, a trust deed can exclude and override the operation of the Act's provisions which function as default rules where the trust deed is silent. Each province and territory must now individually consider adopting and implementing the Act.

 

Online resources

Canadian Legal Information Institute

W www.canlii.org/en

Description. The Canadian Legal Information Institute provides a link to the Income Tax Act and other referenced legislation. The website is available in both French and English.

Department of Finance Canada

W www.fin.gc.ca/treaties-conventions/in_force--eng.asp

Description. The website provides a list of Canadian tax treaties. It is available in both French and English.

Tax Information Exchange Agreements (TIEA)

W www.fin.gc.ca/treaties-conventions/tieaaerf-eng.asp

Description. The website provides TIEAs and information on the status of TIEA negotiations. It is available in both French and English.

Supreme Court of Canada

W http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do

Description. The website provides a searchable database for the referenced cases. It is available in both French and English.



Contributor profile

Margaret R O' Sullivan

O’Sullivan Estate Lawyers Professional Corporation

T +1 416 363 3700
F +1 416 363 9570
E mosullivan@osullivanlaw.com
W www.osullivanlaw.com

Professional qualifications. Ontario, Canada, Barrister & Solicitor, 1983

Areas of practice. Estates; trusts.

Recent transactions. Regularly advises on all aspects of estate planning; will and trust planning; incapacity planning; estate litigation; advising executors, trustees and beneficiaries; and the administration of trusts and estates, including cross-border and multi-jurisdictional matters.

Professional associations/memberships

  • Immediate past Deputy Chair and member of the Board of Directors and Council for the Society of Trust and Estate Practitioners (STEP) Worldwide.

  • Member of the Canadian Bar Association, the American Bar Association, the New York State Bar Association, the International Bar Association and the Canadian Tax Foundation.

  • Elected Fellow, American College of Trust and Estate Counsel, 1995.

Publications

  • Author of Engineering a Trust and Trust and Estate Management (Trust Institute of the Institute of Canadian Bankers).

  • Co-author of Chapter on Canada, International Succession Laws, Tottel, 2009.

  • Contributing author to Widdifield on Executors and Trustees, Carswell, 2002; The Private Wealth & Private Client Review, Law Business Research, 2013; The International Comparative Legal Guide to: Private Client 2013, Global Legal Group, 2012.


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