Frequently Asked Questions

Answer: In entering business one should give consideration to whether you will operate as a proprietorship, a partnership or as an incorporated entity. The expense of incorporation may make sense in certain circumstances particularly if the benefits of limited liability or lower tax rates for income left within the company are applicable to your situation. We will work with you, your financial advisors and your accounting professionals to help you arrive at the decision which is right for you.

Answer: The figures in the tables reflect the average amount of money that Canadians at various income levels spend to raise a child. Economic research on family spending shows that there is no single fixed cost of raising a child. In general, families of similar size and income spend the same proportion of after-tax income on children. So the cost of raising a child depends on how much income, and how many children the family has.

The guidelines help ensure that all families in similar circumstances (that is, living in the same province or territory and with the same income and number of children) pay the same basic amount of child support before adjustments are made. The amounts are also intended to ensure that paying parents can still support themselves. The tables take into account the taxes payable and therefore gross income is used to apply them.

The amounts vary by province and territory to account for differences in provincial and territorial income tax rates. The amounts in the child support tables were updated on May 1, 2006 to reflect more recent tax rules.

Answer: A receiving parent’s income is considered when you are:

1. Deciding special expenses;

2. If you or the other parent claims undue hardship;

3. When you and the other parent split or share custody;

4. When a child is at or over the age of majority and you are not using the guidelines as if the child was under the age of majority;

5. If the paying parent earns more than $150,000 a year;

6. If one of you has acted in place of a parent to the other parent’s child.

Answer: The Divorce Act recognizes that there are special circumstances when the amount in the guidelines may not be appropriate.

For example, if the paying parent transferred the family home, without being compensated, to the other parent so the children would not have to move, the amount in the guidelines may not be fair.  Both parents would have to agree that this is the case or a court would have to rule on the matter.

Answer: The guidelines set the paying parent’s contribution in accordance with the average proportion of income that a person at that income level spends on his or her children. In other words, the guidelines ask “what would a parent with this income usually spend on his or her children?” and set the support payment accordingly. The parent’s financial contribution is set according to his or her own income.

The receiving parent is expected to contribute a similar share of his or her income to meet the costs of raising the child. The standards of living of the child and the receiving parent are inseparable because the child resides in his or her household. This approach allows the children to continue to share in increases or decreases in their parents’ income, just as they would have if the two parents had continued to live together.

Answer: Under the law, you have an ongoing obligation to financially support your children even if you have new family responsibilities.

But the guidelines also recognize that, in some situations, the amount of child support in the tables, combined with other circumstances, could create undue hardship for either parent or for the children. Having a second family to support is an example of a situation that could cause undue hardship. However, you cannot reduce your obligations to your first family unless a comparison of both households shows that the second family would have a lower standard of living if the support payments were not reduced. In comparing household standards of living, the court considers the income of all household members as well as the number of people in each household. If undue hardship has been proved, the court can adjust the child support amount.

A. Under the common law, as the owner of property, you would have complete freedom to dispose of it as you wish upon death. However, certain legislative provisions in the province enforce certain public policy concerns which could potentially conflict with your wishes.

For example, the Provision for Dependants Act ensures that a dependant spouse or children are provided for. Therefore, if you wish to disinherit certain individuals, you should be aware that where inadequate provision has been made for the proper maintenance and support of a dependent, the court may make an order for adequate provision out of your estate.

Likewise, the Marital Property Act will operate to grant a spouse the deceased partner’s interest in the marital home, as well as a one-half interest in all other marital property. These provisions are effective irrespective of whether or not it is held in one spouses’ name alone.

In addition, if there has been a family breakdown and separation, and a domestic contract is in force, it is important to recognize that the obligations incurred by virtue of that agreement cannot be avoided by means of a will.

Another relevant statute is the Family Services Act, which indicates that a Court may order that the liability for support continues after the death of the testatrix and becomes a debt of his or her estate for such period as is fixed in the order.

Answer: Choosing an executor may be one of your most important decisions. Your executor must be both competent and honest. Preferably, she or he should live in the jurisdiction where your assets are located.

If you don’t have a lot of assets, and are giving most or all of these to your spouse, your spouse is a good choice. Adult children may also be a good choice, because of their familiarity with the assets of the estate, and the likelihood that they may not charge fees for their service.

Friends and business associates may be a good choice, provided that they have the ability, integrity, and some knowledge of the assets and the beneficiaries. The requirements of friendship are not necessarily the qualities of a good executor. Executors may be required to run the family business, or possess investment knowledge. Depending on the complexity of your estate, these are crucial considerations.

Age may also be a factor where there are long-term trust arrangements to be put in place. For example, where there are infant children involved, it may not be wise to appoint an executor who is significantly older than yourself.

When the estate is complicated, or contemplates long-term arrangements, you might consider appointing a trust company, which would have the necessary continuity and expertise to administer the estate. This is a more costly alternative, but may very well be warranted.

Answer: The trust is a very flexible instrument which has a variety of uses. You may establish a trust while you are living, which is called an inter vivos trust. However, in the context of Wills, these are referred to as testamentary trusts.

The trust is an excellent way of providing benefits to an individual, while protecting the assets themselves from the beneficiary. For example, if you wish to benefit your son, but feel his age or level of maturity is such that he is incapable of handling the funds wisely, assets may be placed in trust until he reaches a certain age.

The trust is also a useful instrument with respect to taxation issues.

Answer: If you do not have a will, you are considered to be “intestate”. If you die intestate, the scheme for distribution set out in certain legislation will come into effect. Specifically, the Devolution of Estates Act governs this issue.

Therefore, if you were to die without a will, or part of your will was invalid, or your will failed to deal with all of your assets, your estate would be divided among the surviving members of your family according to specific proportions based on their degree of relationship to you.

Dying intestate can lead to problems ranging from the taxation of your estate to decisions regarding the guardianship and care of dependant children often leading to the need for direction from our courts which can become unnecessarily expensive.

Answer: You definitely need a will if you want to have your assets distributed in a manner that differs from the scheme set out in the Act or if you have dependant children.

You may also benefit from a structuring which lessens tax consequences that might otherwise occur on death. These considerations also apply if you have the potential of gaining significant assets through business, by inheritance, or otherwise.

Another factor is whether or not a person has personal bequests. That is, personal items like family heirlooms, coin collections, jewelry, or such things that you want to give to particular people.

If you possess a valid will, and become married afterward, the will is void. Ironically enough, if you become divorced, your will stays in effect, and your former spouse will receive all of the bequests to which he was entitled under that will. Therefore, if you are either getting married or getting divorced, you should be thinking about having an updated will done.

Answer: Prior to 2001 land was tracked in the province of New Brunswick in accordance with the Land Registry Act, then in 2001 the Land Titles Act was put into place for our Province. Under the Land Registry system land was tracked by the name of the owner of the property whereas under the Land Titles system land is tracked by an assigned property identifier number (PID). Much of the terminology under the Land Registry System has changed under the Land Titles System.

Establishing the Land Titles System is the first in a series of steps which will eventually allow the Province of New Brunswick to deal with the registration of land and all things related to it in a paperless manner.

When purchasing land in New Brunswick it is important that you know which system will apply to your transaction and which system the subject property is presently in as this may affect your legal fees.

Answer: Municipal issues can range from quasi-criminal offences to working with the city in real estate and or commercial developments. in any of these cases our lawyers have dealt with the city’s representatives and the legislation that govern municipal law and can help make your issue easier.

Answer: If you have been served with documents pertaining to a legal matter you should see a lawyer as soon as possible. The matter you are dealing with may have time deadlines and if a lawyer is going to help you he or she may wish to obtain documentation from the Crown prior to advising you. Do not delay in contacting your lawyer in a criminal matter.