Canada

Canada is a federal country made up of ten provinces and three territories, the latter being subject to federal suzerainty but largely under local administration

STEP Canada website
STEP Canada branch page

NEW DEVELOPMENTS
  • 2010 Federal Budget proposed legislative changes that include:
  • Attribution of income from a deemed resident trust after 4 March 2010
  • Deferral of implementation of Foreign Investment Entities Rule to 2010
  • Changes to definition of taxable Canadian property to exclude shares of Canadian corporations unless Canadian real estate or resource based
  • British Columbia has enacted a new Wills, Estates and Succession Act, which is expected to come into force in 2011
  • On 1 April 2010, Nova Scotia enacted the Personal Directives Act allowing individuals to appoint a substitute decision maker for personal care issues and to set out instructions for their personal care. The Act also provides a hierarchy of statutory substitute decision makers. The Act replaces the Medical Consent Act.

1. Introduction

a. Constitutional structure

Canada is a federal country made up of ten provinces and three territories, the latter being subject to federal suzerainty but largely under local administration. All jurisdictions, except Quebec, follow a common law tradition.

The currency is the Canadian dollar (CAD).

b. Legal systems

i. Common law

Although contemporary trust law in common law Canada generally follows Commonwealth doctrinal tradition, it has been influenced by American law. Unjust enrichment decisions, the remedial constructive trust and fiduciary obligations law, as well as legislation in the area of trustee investment law (the modern portfolio theory), owe their inspiration to American ideas.

The CanadianCharter of Rights and Freedoms, part of the Constitution of Canada, applies only to persons, not to property. Consequently, it has not been applied in the field of trust law in common law Canada or to the operation of the Quebec fiducie.

ii. Quebec

French immigrants from Normandy in the 17th century brought to Quebec their language, religion and law, based on the Coutume de Paris, which contained no trust law. In 1888, legislation recognising a trust as a mode of property holding was introduced into the former civil code. Quebec, as a civil law jurisdiction, has no doctrine of estates. In 1994, a new codification was enacted – the CivilCode of Québec (Code) – when the Quebec legislature adopted different thinking with a fiducie based on the 19th-century concept of a patrimoine d’affectation (property dedicated to a mode of user, but owned by no one). Quebec is unique among civil law jurisdictions in possessing a complete trust concept.

Editorial board
Michael Cadesky TEP
Cadesky and Associates LLP, Toronto, Canada
Robert Carrothers TEP
Legacy Tax & Trust Lawyers, Vancouver, Canada
Grace Chow TEP
Cadesky and Associates LLP, Toronto, Canada
Elaine Blades TEP
Scotia Private Client Group, Toronto, Canada
Louise Houle TEP
Heenan Blaikie LLP, Montreal, Canada

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© 2011 Society of Trust & Estate Practitioners