Canada

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New Developments
  • 2011 Federal Budget proposed legislative changes that include:
  • An anti-avoidance rule that prevents income-splitting with minors by taxing dividends is extended to be applicable to certain capital gains.
  • Revised proposals to tax foreign investment entities and non-resident trusts remain pending.
  • Alberta has passed a new Will and Succession Act S.A. 2010W-122. The Act is expected to be proclaimed in early 2012.
  • British Columbia has enacted a new Wills, Estates and Succession Act which is expected to come into force in 2011.
  • Also in British Columbia, a new Act, entitled the Adult Guardianship and Planning Statutes Amendment Act (AGPSAA) is expected to be proclaimed to be effective for 1 September 2011. The provisions of AGPSAA and the subsequent amendment acts revise various statutes and regulations that relate to planning for incapacity. Documents such as advance directives, representation agreements and enduring powers of attorney are those which will be affected by the changes taking effect on 1 September. The provisions dealing with adult guardianship (i.e. committeeships) have not yet been proclaimed into force.
  • 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 Canadian Charter 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 Civil Code 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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