Friday, 23 May 2014
Fairy Tales Film festival
Courtney Aarbo Fuldauer LLP is a proud and long time sponsor of the Fairy Tales Film Festival. The Film festival start this evening, please come down to the Plaza Theatre to join in the excitement http://www.fairytalesfilmfest.com/
Why do I need a Will?
What happens if I die without a Will?
By Anthony Pranata
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I would like to clarify
what I have recently discovered to be a common misconception regarding Wills. A
number of clients have informed me of their concern to have a Will drafted as
soon as possible because they did not want to die without a Will and leave all
their assets in the pockets of the government. I fully advocate the importance
of having a Will, but rest assured that if you die without a Will, the
government is not going to swoop in and take all of your stuff, unless you have
no living heirs.
The legislation that
governs the distribution of intestate estates (ie. estates of people who die
without a Will) can be found in sections 58 through 70 of the Wills and Succession Act, SA 2010, c
W-12.2. http://canlii.ca/t/8ntp One of the good things about this portion of the Wills and Succession Act is that a person’s intestate estate is
distributed in a way that that person may have reasonably distributed it anyway
had he/she drafted a Will. That is to say, Alberta law dictates the
distribution of an intestate estate in a very “common sense” way.
The following are common
scenarios that might occur in a situation where someone dies without a Will:
a) If
the deceased has a surviving spouse or adult interdependent partner (ex. common
law spouse) with NO children, 100% of the deceased’s estate would go to the
deceased’s spouse/adult interdependent partner.
b) If
the deceased has a surviving spouse or adult interdependent partner WITH
children, and all of the deceased’s children are also children of the surviving
spouse/adult interdependent partner, then 100% of the deceased’s estate would still
go to the deceased’s spouse/adult interdependent partner.
c) If
the deceased has no surviving spouse or adult interdependent partner but has children,
and all of the children were alive at the time the deceased died, the
deceased’s estate would be split equally between his/her children.
d) If
the deceased has no surviving spouse or adult interdependent partner but has 2
children for example, but only 1 was alive at the time the deceased died, 100%
of the deceased’s estate would go to the child still alive UNLESS the deceased
child has children of his/her own.
e) If
the deceased has no surviving spouse or adult interdependent partner but has 2
children for example, but only 1 was alive at the time the deceased died, and
the deceased child has 3 children of his/her own, 50% of the deceased’s estate would
go the living child and the other 50% of the deceased’s estate would be split
equally amongst the deceased child’s children (ie. the deceased’s
grandchildren). That is, each of the 3 grandchildren would get 1/3 of 50% of
the deceased’s estate.
f) If
the deceased has no surviving spouse or adult interdependent partner or
children or grandchildren, the deceased’s estate would be split equally between
his/her parents, or to the survivor of them if only one parent is alive.
g) If
the deceased has no surviving parents, then the deceased’s estate would be
split equally amongst the children of the parents (ie. the deceased’s siblings
and half-siblings).
The above examples are
only SOME of the possible scenarios that may occur and is by no means an
exhaustive list. You will need to refer to the Wills and Succession Act or consult a lawyer if you require
information on an intestate estate situation that is not addressed above.
It is possible that the
government will get your money, but it would be rare. Under the terms of Unclaimed Personal Property and Vested Property Act, C. U‑1.5
there are provisions that the government may get the money, but you really
would have to have no know heirs. http://canlii.ca/t/81wh
Even though the law has
measures to deal with intestate estates, I highly caution against relying on
the Wills and Succession Act to
dictate the distribution of your intestate estate in lieu of preparing a Will,
especially if the legislation would dictate a distribution contrary to what you
would have otherwise wanted. For example, if you have no surviving spouse or
adult interdependent partner but you have 3 adult children, and you only have a
good relationship with 1 of your children, you may want to give the majority or
entirety of your estate to that one adult child. This would have to be
specified in a Will. If you do not have a Will when you pass away, your 3 adult
children would share equally in your estate.
Drafting a Will provides
other significant advantages:
a) Designate Executor (personal representative)
-- You can designate a personal representative to manage your estate when you
die. This is likely going to be someone that you highly trust as that person
will have full access to your sensitive financial information. Without a Will, the
person who ends up being entitled to administer your estate may not be someone
that you would have wanted to gain access to your financial information.
b) Designate Guardian -- You can designate
a guardian for your children. Most often your primary choice is going to be
your wife/husband/partner, but it would be wise for you to choose an alternate
guardian in the event you and your partner die in a common accident. Choosing
an alternate guardian is normally a conversation you would have with your
partner while taking into account a variety of factors, not the least of which
is who you believe would be the best person/couple to raise your children in
accordance with your own beliefs and values. However, without a Will, you will
not be able to dictate who gets guardianship of your children. In the best case
scenario, your children will go to the person/couple you would have otherwise
chosen. However, in (one of) the worst case scenario(s), there will be a
massive fight amongst your family members as to who would be the most suitable
guardian. If they cannot come to an agreement, they would have to make an
application to court for the court to decide who would be the most suitable
guardian. Further, the legal fees incurred in this application would likely be
taken out of your own estate which is money that would have otherwise gone to
your children. Though there may only be a small percentage of families who
would put up this much of a fight over guardianship of your children, the fact
remains that such a hassle is easily avoidable by drafting a Will.
c) Designate personal items -- Many people
have possessions that have low market value but high sentimental value. For
example, a necklace passed down from generation to generation may not be worth
very much if you try to sell it at a jewelry store, but is still very important
to you because of all of the adventures that necklace has experienced. Most
people prefer to leave their sentimental items to a particular person, whether
it be their child, one of their relatives, or even a close friend. This is
something that, again, can only be accomplished with a Will. Without a Will,
all of your belongings, including your sentimental items, would be distributed
to the person(s) entitled to your property in accordance with the Wills and Succession Act, which may not
be the person you would have wanted to have such a keepsake.
d) Cost and Clarity -- A Will is at least
just as much for your loved ones as it is for yourself. If you die without a
Will, or for that matter, if you die with a Will that has been poorly drafted,
any inconvenience by reason of such is suffered by your loved ones, not you.
Without a Will, your loved ones are the ones who are going to have to expend
the time and energy to apply to court to be your estate’s administrator and
your children’s guardians. With a poorly drafted Will, your loved ones are the
ones who are going to have to rack their brain to interpret your Will and
determine how you wanted to distribute your estate upon your death. These are
all things you can avoid with a properly drafted Will.
The above are several examples
of why you should draft a Will instead of leaving your estate to be distributed
as an intestate estate in accordance with the Wills and Succession Act. With a Will, you can dictate the
distribution of your estate in your own terms without having to worry about
whether the law on intestate estates will distribute your property in a manner
you want.
For more information,
please contact the law office of Courtney Aarbo Fuldauer LLP at:
Address: 3rd Floor, 1131
Kensington Road NW, Calgary, AB, T2N 3P4
Phone: 403-571-5120
Email: info@courtneyaarbo.ca
To visit our Will and Estate Planning page:
http://www.courtneyaarbo.ca/wills.php
http://www.courtneyaarbo.ca/wills.php
The Wills and Succession Act of Alberta:
https://www.canlii.org/en/ab/laws/stat/sa-2010-c-w-12.2/latest/sa-2010-c-w-12.2.html
*The
information contained in this blog is not legal advice. It should not be
construed as legal advice and should not be relied upon as such. If you require
legal assistance, please contact a lawyer*
Thursday, 22 May 2014
Employment Law -- case comment
HUMAN
RIGHTS UPDATE - EMPLOYMENT LAW
One
of the most interesting decisions I have come across in the past year has been
the decision of Fair v. Hamilton-Wentworth District School Board
2013 H.R.T.O. 440. http://canlii.ca/t/fq6vhThe Ontario Human
Rights Tribunal found that the employer had breached its obligations under the
Ontario Human Rights code by terminating employee’s employment in 2003. She was not accommodated and instead was
terminated. The Tribunal ordered that
the non-union employee be reinstated to employment despite the fact that she
had been away from the workplace for approximately a decade.
It
is true that the Ontario legislation specifically provides for reinstatement,
but it is extraordinarily unusual for employees to be reinstated in a non-union
workplace. In fact, the writer has never
seen the exercise of this remedy outside of a unionized workplace. Why? I
suspect that it would be very difficult for both the employee and employer to
be reintegrated without the assistance a union.
In what position would she be placed? Her old position? There are no bumping rights in employee law
as opposed to the world of labour law.
If the employer were to remove the prior employee and that employee had
been there for ten years then they would on the hook for a severance package, a severance package for a 10 year employee.
The
case is very interesting but it seems unlikely to catch on as a remedy
generally within this area of the law.
To see Darryl's bio:
http://www.courtneyaarbo.ca/aarbo.php
To see our human rights page:
http://www.courtneyaarbo.ca/human_rights.php
Alberta Human Rights Commission:
http://www.albertahumanrights.ab.ca/
http://www.courtneyaarbo.ca/aarbo.php
To see our human rights page:
http://www.courtneyaarbo.ca/human_rights.php
Alberta Human Rights Commission:
http://www.albertahumanrights.ab.ca/
Tuesday, 20 May 2014
Privacy Law -- Labour Law Update
Employment
Law – Privacy Law
Case comment on:
Alberta (Information and Privacy
Commissioner) v. United Food and Commercial
Workers, Local 401 2013 S.C.C. 62 http://canlii.ca/t/g1vf6
During
a lawful strike lasting 305 days both the Union and the Employer videotaped and
photographed individuals crossing the picket line. The Union posted signs in the area of the
picketing stating that images of persons crossing the picket line might be placed
on a website. A number of people filmed
complained to the Alberta Information and Privacy Commissioner. The case ended up at the Supreme Court of
Canada. The issue was the general rule
that organizations cannot collect, use or disclose personal information without
consent. It was held that by imposing
restrictions on the ability of unions to communicate and persuade the public of
their cause, the act impaired the ability of the Union to use one of the most effective
bargaining strategies in the course of a lawful strike. This infringement of the right to freedom of
expression was deemed disproportionate to the government’s objective of
providing individuals with control over the personal information that they
expose by crossing a picket line and was therefore unconstitutional. The declaration in validity was suspended for twelve months to give the
Alberta Legislature time to decide how best to make the legislation
constitutional compliant.
It
is the writer’s opinion that privacy laws have gone too far in certain
circumstances. Although extremely important
to have privacy laws at one level, they seem to have been taken to extreme
measures in some contexts. The
information being collected in this case appears to have been collected in an
open and public space. The people were
being given notice of the fact that they were being recorded. It is not as if they were being filmed in
secret or on private property. It used
to be that filming or capturing images in the public was perfectly acceptable
and reasonable. There does not seem to
be any logic in extended these laws to covering situations where people are in
the public’s fear. Good decision by the
SCC.
Darryl A. Aarbo, Barrister and Solicitor
visit our employment law page
http://www.courtneyaarbo.ca/employment.php
visit Darryl's bio:
http://www.courtneyaarbo.ca/aarbo.php
Office of the Information and Privacy Commissioner of Alberta:
http://www.oipc.ab.ca/pages/home/default.aspx
http://www.courtneyaarbo.ca/employment.php
visit Darryl's bio:
http://www.courtneyaarbo.ca/aarbo.php
Office of the Information and Privacy Commissioner of Alberta:
http://www.oipc.ab.ca/pages/home/default.aspx
Friday, 16 May 2014
Human Rights Update -- Employment Law
HUMAN
RIGHTS UPDATE - EMPLOYMENT LAW
A
very interest case to come recently is Wilson
v. Solis Mexican Foods Inc. 2013 ONSC 5799. http://canlii.ca/t/g0nkm The Ontario Supreme Court exercised its jurisdiction under the Ontario Human Rights Code to award human
rights damages in a wrongful dismissal action.
After a back injury the employee was terminated after she requested a
gradual return to work. Instead she was
terminated. The Court held that the
termination of employment was due in whole or in part to Ms. Wilson’s back
injury and awarded $20,000.00 for discrimination on the basis of
disability. It is interesting and unique
because section 46.1 of the Ontario Code provides that a Court in a civil
proceeding may make an award with respect to the breach of the person’s human
rights. In that regard it does make
sense and it all seems perfectly reasonable, but it does demonstrate a further
evolution away from the decision in Honda
Canada v. Keays of the Supreme
Court of Canada. It is a decision that
does not make any practical sense with respect to this area of the law. One can only hope that the Alberta Courts
will follow suite and/or the Alberta legislature would also see the merit in
distancing itself from the principals set out in Honda Canada v. Keays. As
stated before in an earlier post, the Supreme Court of Canada decision was
likely correct at law, but not terribly practical for the modern funding of
human rights commissions. Surely it
could have found a way to allow more crossover between human rights and employment law.
by Darryl A. Aarbo, Courtney Aarbo Fuldauer LLP
http://www.courtneyaarbo.ca/aarbo.php
darrylaarbo@courtneyaarbo.ca
Link to Alberta Human Rights Commission:
http://www.albertahumanrights.ab.ca/
http://www.courtneyaarbo.ca/aarbo.php
darrylaarbo@courtneyaarbo.ca
Link to Alberta Human Rights Commission:
http://www.albertahumanrights.ab.ca/
Friday, 9 May 2014
You Tube and Copyright Law
Posting
Videos on YouTube – Copyright Infringement or Not?
The
“Mash-Up” Provision
Have you ever watched a YouTube video where the creator of
the video used a popular song as the background music? Have you ever wondered
whether the creator got permission from the artist of the song to use the song
in the YouTube video? Have you ever wondered what would happen if the song
artist decided to sue that video creator for “stealing” his/her song without
permission?
You may have come to the logical conclusion that it is not
worth it for pop stars like Justin Bieber and Miley Cyrus to crack down on that
artistic YouTube video creator who decided to use “Baby” and “Wrecking Ball” in
his video, and you are probably right. However, from a legal perspective, even
if those artists wanted to crack down on the video creator, the video creator
would have many defences available to him against these superstars.
Generally speaking, you cannot use a substantial portion of copyrighted
work in your own work without the permission of the owner of the copyrighted
work. However, copyright law is full of exceptions, one of which being the
exception of non-commercial user-generated content. This exception is
enumerated in section 29.21 of the Copyright
Act, RSC 1985, c. C-42 (a new piece of legislation that was introduced into
the Copyright Act in 2012) – this
provision is sometimes referred to as the “mash-up” provision. This provision
states that it is not an infringement of copyright to use even a substantial
amount of a copyrighted work in your own new work provided that:
- The copyrighted work has already been published (ie. made available to the public);
- Your new work was created
for non-commercial purposes;
- The source of the copyrighted
work is mentioned in the new work if it is reasonable in the circumstances
to do so;
- The creator of the new
work had no reason to believe that the copyrighted work was itself an
infringement on another party’s copyright; and
- The use of, and dissemination
of, the new work does not have a substantial adverse effect on the
copyrighted work.
If the above conditions are met, the YouTube video creator
would not have to worry about million dollar lawsuits from Hollywood pop stars.
However, if the video were to become YouTube famous and the video creator
started raking in royalties as a result, he might want to consider giving
Justin Bieber’s and Miley Cyrus’ agent a call to see if he can get a license
from them.
For more information, please contact the law office of
Courtney Aarbo Fuldauer LLP at:
Address: 3rd Floor, 1131 Kensington Road NW, Calgary,
AB, T2N 3P4
Phone: (403) 571-5120
Email: info@courtneyaarbo.ca
Canadian Intellectual Property Office:
http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home
http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home
*The information contained in
this blog is not legal advice. It should not be construed as legal advice and
should not be relied upon as such. If you require legal assistance, please
contact a lawyer*
Friday, 2 May 2014
Should I hire a Employment Lawyer to Review my Severance Package
Should I Hire an Employment Lawyer to
Review your Severance Package?
We get a lot of calls from
people who have been terminated from their employment wondering if they should
hire a lawyer to review their severance package. A severance package can be a
very important legal arrangement with lasting consequences for a person’s
career and financial well-being.
Assessing a severance package
requires a proper intake interview to determine all of the relevant variables
and factors that should go into a severance package. I have yet to see anything
on the Internet that can provide this advice in a meaningful way to a person
due to the number of variables. This does not mean that the lawyer has to
undertake a detailed analysis of case law in every circumstance. Most experienced
employment law lawyers can provide an opinion relatively quickly after a proper
intake interview. In other words, the lawyer can usually render an initial
verbal opinion at the end of an initial consultation. It is normally a
preliminary opinion without the aid of legal research, but a range can be
provided with some accuracy if you get an experienced employment law lawyer.
The Internet is one of the
greatest inventions of our age, but it does give people the false sense of
security that they can become an expert in any field instantly by reading a
couple of articles on the Internet on a particular topic. Unless and until we
get to the point where information can be downloaded instantly into the human
brain like in the movie The Matrix then there will be value added to hiring
professionals to obtain advice in medicine, accounting, law and just about any other discipline.
Because of the nuances in the
law and the interconnected legal relationship between an employee and employer
it is impossible to advise a client as to whether it is appropriate to hire a
lawyer to further negotiate a severance package until the intake interview is
completed. Sometimes the package on offer is reasonable. Sometimes it is most appropriate for the
employee him or herself to return to the employer to ask for some additional
monies or components to the severance package. Sometimes it is faster and most appropriate for
the lawyer to counter offer.
If a lawyer is hired to
negotiate a severance package then there is no guarantee that that lawyer can
improve the offer. Nevertheless, hiring
a lawyer does send a message to the employer that the employee is serious about
his or her concerns and is taking a professional approach to dealing with the
concerns. Termination can be a difficult process for both the employee and the
person terminating. In smaller or midsize companies the person doing the
terminating and negotiating on behalf of the employer may have worked with that
person in a close capacity for many years. Hiring a lawyer by the employee often results
in the employer hiring a lawyer to represent its interests. Hiring lawyers to negotiate the package
allows the parties to remove any distractions and focus on the issues in an
efficient and meaningful way.
Further, if a person has been
terminated from a large corporation with a sophisticated human resources
department and there is no personal connection between the involved parties
then that employer often appreciates the professionalism of dealing with a
lawyer, even if they do not retain its own lawyer during the negotiation phase.
Hiring a lawyer allows the
parties to focus in on the real and material issues in dispute between the
parties in an efficient manner without dealing with any irrelevant issues that
may unnecessarily complicate the process. I can tell you from years of experience that
no employer wants to pay more than it has to on the termination of an employee.
Further, unless there is an existing and valid contract that deals with the
termination then most employers go in low with any offers. Without a lawyer most employees accept the
first offer and therefore the employer saves money on the package itself and
any legal costs that may be incurred. This does not mean that they put their
best offer forward first. In my experienced most employers leave some room for
negotiation.
Finally, sometimes the
employers are simply not sophisticated in the area of employment law. They make
mistakes and they sometimes dig in their heels with offers that are
inappropriate or even illegal as they may violate employment standards
legislation. Sometimes these employers feel that they know better and make a
horrible offer and dig in their heels. The best advantage to having a lawyer in
this case is that employer will usually go get their own lawyer and that lawyer
will explain to the employer why their offer cannot be maintained law and a
more reasonable offer is forthcoming. The
size of the company does not determine this issue.
Finally, one aspect that
people almost always forget to negotiate on their own is the own
reference. A experienced lawyers knows what
and when to negotiate a reference.
For more information, please contact the law office of
Courtney Aarbo Fuldauer LLP, Barristers & Solicitors at:
Darryl A. Aarbo, Barrister & Solicitor
Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php
Darryl's email: darrylaarbo@courtneyaarbo.ca
Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php
Darryl's email: darrylaarbo@courtneyaarbo.ca
Employment Law page: http://www.courtneyaarbo.ca/employment.php
*The information contained in
this blog is not legal advice. It should not be construed as legal advice and
should not be relied upon as such. If you require legal assistance, please
contact a lawyer*
Family Law Information -- Separation, Judicial Separation and Irrecincilability
Family Law Information
from Experienced Family Law Lawyers:
What is the Difference
between a Separation, a Separation Agreement, a Judicial Separation and a
Declaration of Irreconcilability?
by Olivier Fuldauer
by Olivier Fuldauer
These
similar-sounding things are actually quite different. A separation describes the situation where one
spouse or both spouses (married or common law) decide not to live together as
spouses anymore and take some physical step to create the separation. This can
be moving to another room or another home altogether.
A Judicial Separation in Alberta means a type of court order
that can be obtained under the Matrimonial
Property Act that lets people apply to the court for a division of their
matrimonial property. It’s a fairly narrow concept that gets very limited use
because it is just one of several possible preconditions to making a court
application to divide matrimonial property. The Matrimonial Property Act only applies to married couples.
A Declaration of Irreconcilability is similar type of order
that the court can make under the Family Law Act. This order can apply to a
broader range of people, not just married people. A Declaration of
Irreconcilability states that the parties (married spouses, common law spouses
or adult interdependent partners) have no prospect of reconciling. The point of
this type of order is similar to the Judicial Separation order described in the
above paragraph. It is one of the possible preconditions to making a court
application to divide property under the Family
Law Act (married or not married people) or matrimonial property under the Matrimonial Property Act (married
people).
A Separation Agreement is a type of contract that is the
end-result of a negotiation. It is an agreement that can contain as much or as
little of what separating people want to agree to in writing. The beauty of
Separation Agreements is that they are flexible and legally enforceable,
particularly regarding division of property and spousal support.
To be effective under the Matrimonial Property Act, Separation Agreements must have been made
with legal advice. The legal advice should include advice on how favourable or unfavourable
the Separation Agreement is. An agreement between two people on how they want to
sort out their affairs without this legal advice has little or no legal effect.
For most people a Separation Agreement is an important goal
because it can give finality on division of property and spousal support. And
even though there is less finality on issues related to children, a Separation
Agreement still goes a long way toward setting the roadmap for the way forward
regarding parenting and child support.
Olivier Fuldauer, Barrister and Solicitor
Olivier's bio:http://www.courtneyaarbo.ca/fuldauer.php
Email Olivier: ofuldauer@courtneyaarbo.ca
Family Law Page: http://www.courtneyaarbo.ca/family_law.php
For more information, please contact the law office of
Courtney Aarbo Fuldauer LLP, Barristers & Solicitors at:
Address: 3rd
Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: 403-571-5120
*The information contained in this blog is not legal
advice. It should not be construed as legal advice and should not be relied
upon as such. If you require legal assistance, please contact a lawyer*
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