Settlements: Don't Forget the Tutorship Council!

January 1, 2008

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Anne Bélanger
Partner, Lawyer

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April 26, 2024

New rules will make it easier to transfer family businesses

The 2023 Federal Budget (the “Budget”), tabled on March 28, 2023, proposes amendments to certain provisions of the Income Tax Act (ITA) that would make “genuine” intergenerational business transfers no longer subject to the anti-avoidance rules of section 84.1 and allow the transferor to benefit from their capital gains exemption. To do so, the Budget establishes new general conditions that the parties must meet, as well as specific conditions that apply to “immediate” transfers, or those made over a period of no more than 36 months, and “gradual” transfers, or those that take five to ten years to complete. The general conditions that the parties must meet when disposing of a company may be summarized as follows: The vendor must be an individual other than a trust. Immediately prior to the transfer, the vendor, alone or with their spouse, must control the currently operating company. At the time of the transfer, the purchasing company must be controlled by one or more of the vendor’s children, who must be at least 18 years of age. The notion of “child” also includes stepchildren, grandchildren and nieces and nephews. The shares of the company being transferred must be qualified small business corporation (QSBC) shares or shares of the capital stock of a family-farm or family-fishing corporation (QFFP). The specific conditions relate to the transfer of control, economic interests and management of the company, and vary from case to case. FOR AN IMMEDIATE TRANSFER (36-MONTH TEST) In the case of immediate transfers, de jure control (being the holding of the majority of shares having voting rights), and de facto control (which includes the economic influence making effective control of the company likely), must be transferred at the time of sale. Voting and participating shares not transferred to the purchasing company at the time of sale must be transferred within the following 36 months, such that after this period, the transferor may hold only preferred shares, that is, non-voting or non-participating shares for an indefinite period (vs 10 years in the case of a gradual transfer). Also, the child, or at least one member of the group of children, must participate in the family business on a regular, significant and continuous basis for a minimum period of at least 36 months after the transfer is made. Lastly, the transferor must take reasonable steps to transfer the business’s administration and know-how and completely cease to manage the business before the 36th month after the transfer was made. FOR A GRADUAL TRANSFER (FIVE–TO–TEN–YEAR TEST) If the transfer is gradual, only de jure control must be transferred at the time of disposition. The balance of the voting and participating shares not transferred at the time of disposition must be transferred within 36 months of the first transfer. However, under the rules respecting gradual transfers, the transferor will only be bound to transfer de facto control of the business within 10 years of the initial transfer. In the case of a transfer of economic interests, the vendor is expected to significantly reduce the value of the equity and advance they have invested in the business within 10 years of the initial sale. The same requirement for a child’s active participation in the company and transfer of the management of the business apply, but this time for a period of 60 months after acquisition. PREVIOUS RULES (Bill C-208) The provisions of the 2023 Federal Budget have the effect of setting aside certain requirements of Bill C-208 applicable to the realization of a capital gain. Under Bill C-208, for the transferor to benefit from their capital gains exemption, the operating company and the purchasing company could not be amalgamated within 60 months of the sale. The bill also required that an independent assessment of the fair market value of the company’s shares be filed with the Canada Revenue Agency, along with an affidavit signed by the vendor. However, as of January 1, 2024, these criteria are no longer applicable. An assessment will no longer be required, although under section 69 of the ITA, the transfer will still have to be made at fair market value. The 2023 budget (reinforced by the 2024 Federal Budget) also introduces new rules for the alternative minimum tax, a temporary tax that the transferor in an intergenerational business transfer often has to pay. To avoid having this temporary tax becoming permanent, it’s important to understand the subtleties of these new rules. Our team of tax professionals will be happy to help you and answer any questions you may have about these new legislative changes.

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May 31, 2021

The Superior Court of Québec rules on de facto spouses and the right to use a residence during legal proceedings

In a judgment handed down on February 16, 2021, in a case involving former de facto spouses, the Superior Court dismissed an interlocutory injunction filed by the plaintiff seeking the eviction of the defendant from what had been their common residence. After having lived together in a de facto union for 32 years, the parties separated. The plaintiff, sole owner of the family residence, left the residence while the defendant continued to live there. The parties’ adult children were financially independent and no longer lived in the residence. After a few weeks of separation, the plaintiff decided to put the residence up for sale and asked the defendant to leave the residence in preparation for a buyer who had shown interest to take possession of it. The defendant refused, which led to the plaintiff’s application for an interlocutory injunction to evict the defendant from the residence. The defendant simultaneously instituted proceedings against the plaintiff for unjust enrichment. Prima facie case In the case of a mandatory interlocutory injunction, the burden of proof that the plaintiff must meet is what the Court describes as a “strong prima facie case.”01 One of the reasons for this is that there are few situations where a plaintiff will not obtain relief at a trial on the merits. TDhe significant consequences of a mandatory interlocutory injunction on the defendant do indeed require that the judge conduct such an analysis. In this regard, the plaintiff argued that he was the sole owner of the residence, as evidenced by the title. The defendant raised the issue of unjust enrichment resulting from the family obligations that she had had to bear, leaving her unable to work while the plaintiff was free to invest in his increasingly successful career. She also raised the financial arrangements that the parties had made during their life together. Defendant argued that since the beginning of their relationship, they had reached an agreement on the partition of accumulated assets. The defendant considered that the combining of the parties’ efforts and assets during their life together also applied to the residence from which the plaintiff was trying to evict her. According to the defendant, it had always been clear that she was a co-owner of the residence, although no title made mention of this. According to the Court, [translation] “the parties’ family arrangement as part of a long-term, traditional, de facto union”2 precluded the plaintiff’s claim to a unilateral right to make decisions about the family residence. Irreparable prejudice On the issue of irreparable prejudice, the Court found that it was not plausible that the residence would lose value simply because it could not be sold immediately. Moreover, should there be any prejudice, it could not be described as irreparable. On the contrary, for the Court, it was rather the defendant who would suffer serious and irreparable prejudice, and the sale of the house before the hearing on the merits would preclude her from proposing to acquire the plaintiff’s share in the house should the Court find that she was entitled to a portion of its value. Balance of convenience The Court concluded that the balance of convenience favoured the defendant. The only inconvenience for the plaintiff was a financial one. The inconvenience for the defendant, who has no assets or income and suffers from multiple sclerosis, would be much more serious, as she would have to move during winter, probably at a significant distance from the environment that she had become accustomed to living in for the past 30 years. Conclusion This Superior Court judgment dismissing the plaintiff’s injunction in the context of a de facto union will certainly be significant for the advancement of the rights of de facto spouses, as it allows a former de facto spouse without minor children to stay in a residence for which she has no title of ownership at the time of the interlocutory injunction. In 2013, the Supreme Court ruled on the much-publicized Eric and Lola case, and the majority opted to maintain the status quo; that is, no right to obtain support and no right to the partitioning of assets that a de facto spouse does not own.3 However, many de facto spouses may find themselves in precarious situations after a separation. What Laroche c. Couillard teaches is how important agreements made during de facto unions are, and that such agreements are valid even if the relationship ends. This decision on interlocutory injunction will certainly be useful for other former de facto spouses who find themselves in a similar situation after their separation. The residence that de facto spouses live in during their life together is often a substantial asset, and protecting it is advantageous. Thus, consulting a family law lawyer can help avoid ambiguous situations at the end of a relationship and protect the rights of the parties beforehand. Lavery’s Family, Estate and Personal Law team is at your disposal to assist you in your projects and in finding solutions to protect your rights. We would be happy to discuss our legal service offerings with you to help you determine which one is best for you. R. v. Canadian Broadcasting Corp.,2018 SCC 5, para. 15. Laroche c. Couillard, 200-17-031680-200, February 16, 2021, para. 21. Quebec (Attorney General) v. A., 2013 SCC 5.; Caroline Harnois, “Eric and Lola: The Supreme Court rules on the rights of de facto spouses in Quebec” (2013), Lavery Lawyers – Publications

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March 11, 2021

COVID-19: Anticipating Capital Gains, Wealth, Gift and Inheritance Taxes

The deficits being generated by the emergency measures that the federal and provincial governments have implemented since March 2020 are a reminder of the magnitude of our governments’ pre-crisis deficits. This situation will inevitably lead to a greater tax burden for businesses and individuals at some point. Despite the unprecedented nature of these circumstances and the difficult financial situations that organizations find themselves in, steps can be taken now to mitigate repercussions. For several years, there has been increasing speculation about the capital gains inclusion rate being increased. Rumours also abound about the potential creation of an inheritance tax, which would undoubtedly be accompanied by a gift tax and a wealth tax. In this context, it is becoming ever more plausible that the federal government will finally increase the capital gains inclusion rate and tax the value of inheritances and gifts as early as the next budget, which has been postponed because of the ongoing crisis. An annual wealth tax on high net worth individuals could likewise be in the pipeline. As is now customary, the measures would apply as of midnight the night before the budget is tabled, closing the door to most tax planning strategies to reduce the impact of such measures. In the face of this situation, several steps can be taken as of now as, for instance: Crystallization of unrealized capital gains using a business corporation, partnership or trust; Gifts of money or property to family members or trusts; Termination of Canadian tax residency in favour of a lower-tax jurisdiction. The majority of tax planning strategies aiming to reduce or postpone the impact of such measures can be reversed should the anticipated measures not be adopted. In the event that governments do not increase the tax burden straightaway or opt for other, difficult-to-predict measures, well-planned transactions, such as realizing an accumulated gain on certain assets, making a direct gift, or making a gift through a trust, will ensure that additional taxes need not be paid. If you would like more information, our taxation team is available to help you.

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April 1, 2020

The exercise of custody and access rights in the era of COVID‑19: “There will be no easy answers”

The Ontario Superior Court of Justice refuses to suspend a father’s access rights to his child and specifies the criteria for determining the urgency to intervene in family matters The global crisis we are going through brings its share of challenges and worries, including the protection of our loved ones. Several parents wonder about the protective measures to be taken and the advisability of maintaining the arrangements for shared custody or access with the non-custodial parent. Should these modalities be maintained despite the present crisis or, on the contrary, should they be suspended because of the social distancing requirements? The Ontario Superior Court of Justice rendered the first published Canadian judgment which sheds light on these important issues and bring guidance not only to Ontarian parents and lawyers but to those across the country, including in Quebec. Moreover, a judgment rendered recently in Quebec puts forward the principles established in the Ontario judgement. In Ribeiro v Wright1, the Ontario Superior Court of Justice was seized of an urgent motion brought by the Mother of a 9-year-old boy to suspend all in-person access with his father because of COVID-19. The mother was concerned that the father would not maintain social distancing for the child during periods of access while she and her family were practicing social isolation in their home for the duration of the COVID-19 crisis. She did not want her son leaving her house for any reason, including seeing his father. In his judgment of March 23, 2020, Justice A. Pazaratz of the Ontario Superior Court of Justice did not authorize this matter to proceed on an urgent basis but explained his reasons in detail. First of all, the Court insisted that the health, safety and well-being of children and families remained its foremost consideration during the COVID-19 crisis which is an extremely difficult and stressful period for everyone. Orders should be respected and complied with In the above-mentioned case, the Court stressed that there was an existing custody and access judgment. Justice Pazaratz insisted that there is a presumption that all judgments should be respected and complied with even during the COVID-19 crisis and that an existing judgment granting custody or access rights to parents reflects a determination that meaningful personal contact with both parents is in the child’s best interest. As a general rule, existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to, including strict social distancing. The Court indicated that in “many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset”. In the Court’s opinion, a general policy that children should never leave their primary residence, even to visit their other parent, would be inconsistent with a comprehensive analysis of the best interests of the child. In some cases, parents may have to forego temporarily their time with their child, for example in the following cases: When a parent is under self-isolation for a 14-day period as a result of recent travel; Because of personal illness or exposure to illness; Because of a parent’s personal risk factors (for example through employment); The Court insisted, however, that there would be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk, such as failure to comply with social distancing or to take reasonable health precautions. Justice Pazaratz acknowledged that each family will have its own unique issues and complications, that temporary changes may be required and that there will be no easy answers but “no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.” Justice Pazaratz called upon the parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings. The Court mentioned that despite extremely limited resources during this crisis, it would always prioritize cases involving children. If parents have concerns that COVID-19 creates an urgent issue in relation to custody and access arrangement, they may initiate an emergency motion but should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of access or custody time nor that it will necessarily result in an urgent hearing. The Court indicates that it will deal with COVID-19 custody and access issues on a case-by-case basis according to the following test which will be used to determine whether it is urgent for the Court to intervene: The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols; The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing, use of disinfectants, compliance with public safety directives, etc.; Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner; Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home. Justice Pazaratz dismissed the mother’s urgent motion as he was not satisfied that she had established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future. The judge concluded that “none of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.” The Superior Court of Quebec confirms that as a general rule the status quo must be maintained The judgment Droit de la famille - 204742 rendered on March 27, 2020, the Superior Court of Quebec applied essentially the same principles as those set out in the above-mentioned Ontario decision, namely that : The existing custody or access orders are maintained allowing the child to benefit from the presence of both parents; A parent wishing to suspend existing orders must establish: the urgency of his request; sufficient grounds; A parent's living environment that threatens the health or safety of the children, or presents symptoms of the disease, may constitute sufficient grounds; Both parents must comply with the health and safety directives; This decision indicates that for the Superior Court of Quebec, as for the Superior Court of Ontario, existing judgments on custody and access must be maintained, except when there is a concrete risk to the child’s health because of one of the parents’ behaviour or living environment, which may give an opening to a modification. Parental authority to be exercised jointly by both parents Furthermore, it is worth noting that in Quebec parental authority allows parents to jointly take decisions relating to their child even when they no longer live together, except in the rare cases where a parent is deprived of this right by a judgment of the court. Thus, regardless of the applicable custody arrangement, both parents must consult each other on any matter of importance relating to the child, in particular with regards to his health. Before making an important decision regarding the health of a child, a parent should consult with the other parent and discuss the best options under the circumstances. Professionals to help you see more clearly In summary, we are living in an exceptional situation that requires flexibility and understanding on the part of each parent while complying with the directives issued with respect to COVID-19. If you have any doubts or concerns about your child's situation, or if your discussions with the other parent prove fruitless, it may be helpful to consult with professionals to determine the best course of action in the circumstances. Our Family, Personal and Estate Law team remains available and fully functional to assist you, advise you and take the legal steps required in the best interest of your child. 2020 ONSC 1829, available online: http://canlii.ca/t/j60jj. 2020 QCCS 1051.

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