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 global guide to private client law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateclient-guide.
Tax year and payment dates
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 and inter vivos (lifetime) trusts is the calendar year. As of 2016, the tax year for testamentary trusts (with a few exceptions) is also the calendar year.
Taxes are due as follows:
Individuals: 30 April of the following year.
Individuals deceased between 1 November and 31 December: 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 tax year.
Taxes for individuals and inter vivos trusts are payable in quarterly instalments. As of 2016, taxes for testamentary trusts are also 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
The concept of domicile is not relevant for taxation in Canada.
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 under the domestic law of that country may be deemed by a tax treaty to be resident in only one country for tax purposes.
Taxation on exit
An individual who ceases to be resident in Canada is deemed to dispose of and reacquire 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).
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.
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
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, 26.76% in Ontario and 26.66% in Québec (marginal rate in the highest bracket for 2016). Recapture of depreciation is fully taxed at 53.53% in Ontario and 53.31% 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.
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 in Ontario, the combined federal/provincial marginal tax rate at the top end of the rate schedule for 2016 is 53.53% on taxable income above approximately Can$225,000 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
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 FMV 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.
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 2016, 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 for capital gains which is Can$824,176 for 2016 on certain qualified business-use property, such as shares of certain private companies.
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.
The deemed disposition on death (and the resulting capital gain or loss) applies to non-residents who own TCP (see Question 5).
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. 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, from 1 January 2015, applicants are required to file an Estate Information Return, which requires applicants to provide a detailed list of assets and their values. New tax enforcement powers, such as audits, reassessments, and penalties, are available to the government to ensure compliance.
There are no other taxes on death.
On a lifetime gift of property, the donor is deemed to receive proceeds of disposition equal to FMV 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
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 the federal government. 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.
The harmonised sales tax rate in Ontario in 2016 is 13%.
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 one and a half times the equity of the corporation with any disallowed interest treated as a dividend.
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
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
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.
Wills and estate administration
Governing law and formalities
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).
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.
Validity of foreign wills and foreign grants of probate
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
Administering the estate
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.
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.
Establishing title and gathering in assets (including any particular considerations for non-resident executors)?
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).
In Ontario, legislative measures enacted under the Estate Administration Tax Act in 2012 came into force on 1 January 2015 with little forewarning, together with a new regulation under the Act. The changes ushered in a new reporting regime that is triggered by applying for and receiving a certificate of appointment of estate trustee. Estate representatives must now, in addition to the paperwork relating to the certificate, complete and file an estate information return with the Ministry of Finance within 90 calendar days of the court issuing the certificate of appointment. Most significantly, the return (a prescribed form available from the Ministry) requires detailed information about each estate asset and its fair market date of death value. The estate representative must be able to corroborate the reported asset values. Penalties include fines and even imprisonment for failing to file a return or where the information filed was false or misleading. Amending returns must be filed within 30 days of discovering a prior return was incorrect or incomplete. The Ministry has broad audit powers in conducting its review of the returns, including assessment of further tax if the estate date of death value is determined to be higher than originally reported.
Once probate has been granted, the resulting certificate, grant or other like document is used by the personal representative to deal with third party institutions and entities in the process of transferring title to the personal representative and gathering in the assets.
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. 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 multiple 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.
In addition, the personal representative must file any prior-year income tax returns that are due or overdue and the terminal tax return. Overdue prior-year income tax returns and the associated tax should be filed and paid as soon as possible to avoid further penalties and interest. The terminal tax return and associated tax is due on 30 April of the year following death if the deceased died between 1 January and 31 October and on the day that is six months after the date of death if the deceased died between 1 November and 31 December. If the estate of the deceased earns any income, an estate tax return and any associated tax may also be required to be filed and paid.
Distributing the estate
Before distributing the estate, the personal representatives should consider:
Obtaining clearance certificates from the CRA in respect of taxes of the deceased and of the estate. If property is distributed without a clearance certificate, the personal representatives are personally liable for any unpaid taxes, penalties, and interest.
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).
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).
The validity of a will can be challenged on the basis of the following:
Non-compliance with formality requirements.
Lack of mental capacity.
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.
It may also be possible for non-beneficiaries to challenge the distribution of an estate (for example, when certain persons are excluded from a will or have been left inadequate shares of the estate assets pursuant to a will or under the intestacy rules). In all provinces, a dependant can claim support from the deceased’s estate, provided he or she stands in a certain relationship with the deceased (typically including a spouse, de facto spouse or minor child) and the deceased was providing him or her with support or had a support obligation at the time of death (see Question 24). The matrimonial property regimes of most provinces and territories also give a surviving spouse property rights on a first spouse’s death (see Question 24). In addition to the various provincial statutory claims that may alter the distribution of an estate from the original terms set out in a will or pursuant to the intestacy rules, certain persons may have other claims against a deceased’s property. Such claims may arise under legal principles that ensure fairness, such as under the legal doctrine of unjust enrichment and the equitable claim of proprietary estoppel, or where will provisions offend public policy.
Succession to property on death is generally 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. For aboriginal Canadians who are subject to the Indian Act, succession to property falls within the federal government's jurisdiction. However, certain First Nations have entered into self-governing agreements that permit enactment of individualised laws, including those relating to succession. These latter two scenarios are beyond the scope of this article.
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 circumscribed 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. Courts in 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, including with respect to a claim made by an adult independent child.
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
Real estate or other assets owned by foreign nationals
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.
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.
This is possible (see Question 24).
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. As of 2016, the graduated rates for individuals generally no longer apply to testamentary trusts, which are now taxed at the top marginal rate. An estate that qualifies as a "graduated rate estate" will be taxed at graduated rates for 36 months from the deceased's date of death, as will certain testamentary trusts for the benefit of persons eligible for the Disability Tax Credit.
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 FMV 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.
In Discovery Trust v Canada (National Revenue) (2015 NLTD(G) 86 CanLII), the court confirmed that the residency of a trust for provincial tax purposes is to be determined in accordance with the Supreme Court of Canada's decision in Fundy Settlement v Canada. The decision also provides a useful examination of some of the factors to be considered in determining whether the trustee maintained "central management and control" over the trust.
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 FMV. The result is that on immigration the cost basis of trust property is stepped up or down to FMV, and on emigration a capital gain or loss is realised.
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?
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. Of note, three provinces, being Manitoba, Saskatchewan and most recently Nova Scotia, have abolished rules against perpetuities entirely.
Accumulations are restricted in Ontario 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.
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.
British Columbia’s Family Law Act is the first Canadian family law statute to expressly address discretionary trust interests in the division of family property by categorising certain beneficial interests in property, which are held in discretionary trusts, as excluded property. The increase in value of the spouse’s beneficial interest in a discretionary trust will be subject to division on separation. Valuation of these interests on separation will continue to remain a live and litigious issue in this province and throughout Canada, as evidenced by recent reported decisions from several provinces.
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.
Charities are recognised in Canada and a common law definition of the term "charity" derived from English case law is used.
Under the Income Tax Act, a registered charity is defined to include both charitable organisations and charitable foundations that have been registered under the Act. There are two types of charitable foundation under the Act:
The governing law is the Income Tax Act. However, if a charity is established as some form of not-for-profit corporation (see Question 37), it will also generally be subject to the applicable federal or provincial legislation in that regard.
To access important advantages (such as tax-exempt status under the Income Tax Act and the ability to issue official donation receipts to donors for gifts (see Question 38), charities must first apply for and be granted registered charity status by the Canada Revenue Agency.
Generally, the two main ways in which individual donors can establish a charity are through either the incorporation of some type of a "not-for-profit" or "public benefit" corporation under provincial or federal legislation, or by settling a trust. Once established, the corporation or trustee(s) must apply to the Canada Revenue Agency for charitable registration.
The Canada Revenue Agency maintains a central public registry of charities and is the charity regulator at the federal level for tax purposes and for granting and maintaining charitable status. Charities are also subject to oversight and regulation in their respective province (for example, Ontario is regulated by the Public Guardian and Trustee).
Generally, an individual setting up a charity can make a gift of money or certain other property to the charity once registered, and can claim certain federal and provincial/territorial non-refundable tax credits upon filing an annual tax return, provided the individual has received an official donation receipt from the registered charity.
The tax credit is based on the eligible amount of the gift, as defined by the Income Tax Act. Generally, an individual can claim all or part of the eligible amount up to a maximum of 75% of the individual's net income for the year. Donations in excess of the annual limit can be carried forward and claimed in the five succeeding years.
A registered charity is exempt from paying income tax under Part I of the Income Tax Act.
Other benefits of charitable registration include:
The ability to issue official donation receipts for received gifts, which may reduce a donor's payable annual income tax.
Eligibility to receive gifts from other registered charities (for example, private foundations).
Exemption from applying goods and services tax/harmonised sales tax to certain goods and services provided by the charity.
Partial rebates in certain situations for goods and services tax/harmonised sale tax paid by the charity.
Charities established in other jurisdictions outside Canada are unable to access these benefits.
Ownership and familial relationships
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.
In Bradford v Lyell, a Saskatchewan court recently held that where an inter vivos transfer of a condo property into joint ownership by a grandmother to her granddaughter was found to be intended as a gift of the right of survivorship at the time of the transfer, both the legal and equitable title vested when the joint title was created such that the gift was complete at that time, and the grandmother was unable to later change her mind in her will. This entitled the granddaughter to the beneficial ownership of the property upon the grandmother's death.
The Ontario Court of Appeal’s decisions in Sawdon Estate and Mroz v Mroz have added further outcomes to gratuitous transfers of property into joint ownership. In Sawdon, the court found that evidence of intention regarding the transfer may not only show that the presumption of a resulting trust has been rebutted, but also that a transfer of personal property into joint names created a trust of the beneficial right of survivorship for certain beneficiaries in addition to the surviving joint owners (two of the deceased's children) such that the property passed outside the deceased's estate and was divided equally among all five of the deceased's children.
In Mroz, the court reviewed a mother’s transfer of her home into joint ownership with her daughter where the mother’s will directed that the proceeds of sale from the home be used to fund legacies to her grandchildren. Based on the findings of the trial judge regarding the mother’s intentions at the time of the transfer, the court held that the daughter had not rebutted the presumption of resulting trust, held the property as trustee and the property was to be dealt with in accordance with her mother’s will. Mroz was distinguished from Sawdon given that the trust obligation in Sawdon arose at the time of the transfer (it was inter vivos) and in Mroz the trust obligation was not to arise until after the mother’s death. It appears from these two decisions that trust obligations must take effect prior to a joint owner’s death for the result in Sawdon to occur.
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.
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 Vanasse v 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.
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.
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.
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.
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.
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.
This is not a relevant term in Ontario law (see Question 41).
The age of majority is a matter within provincial and territorial jurisdiction. 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 generally 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
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
The western provinces of British Columbia (whose new legislation, the Wills Estates and Succession Act, came into effect on 31 March 2014) and Alberta (whose new Wills and Succession Act came into effect on 1 February 2012) have recently modernised their succession laws, which affects private client law in these jurisdictions. There are additional pending proposals in Alberta that have not yet come into force.
The Uniform Law Conference of Canada (ULCC), 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 and British Columbia initiated a public consultation in this regard in 2014.
In August 2015, the ULCC also adopted the Recognition of Substitute Decision-Making Documents Act (Uniform Act). The Uniform Act was a joint project of the ULCC and the Uniform Law Commission of the United States (ULC), which was undertaken to promote cross-border portability and utility of substitute decision-making documents for property and personal care. It will now be up to each Canadian province and territory to consider adopting and implementing the Uniform Act. The ULC adopted its version of the Uniform Act in July 2014 and likewise the US states can consider enacting it internally.
On 11 January 2016, the Law Commission of Ontario released its Interim Report on Legal Capacity, Decision-Making and Guardianship for public feedback. It sets out a timely and fundamental review of Ontario's laws on these matters, and makes many significant recommendations for reform, including measures to:
Increase public education.
Restructure the adjudication and dispute resolution processes.
Increase the accountability of those acting under power of attorney documents.
Modernise the assisted decision-making framework.
Canadian Legal Information Institute
Description. The Canadian Legal Information Institute provides a link to the Income Tax Act and other referenced legislation, as well as some referenced court decisions. The website is available in both French and English.
Department of Finance Canada
Description. The website provides a list of Canadian tax treaties. It is available in both French and English.
Tax Information Exchange Agreements (TIEA)
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
Description. The website provides a searchable database for the referenced Supreme Court of Canada cases. It is available in both French and English.
Margaret R O' Sullivan
O'Sullivan Estate Lawyers Professional Corporation
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 domestic, cross-border and multi-jurisdictional matters.
- Past Deputy Chair and past 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.
- 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, 2015; The International Comparative Legal Guide to: Private Client 2016, Global Legal Group, 2015.