Whether it's a first relationship for a millennial or a second or subsequent relationship for others including baby boomers and seniors, these days more and more couples are choosing to live common law rather than marrying. According to a 2017 census, 21.3% of all couples in Canada were living common law in 2016 compared to 6.3% in 1981. There is also a rise in people living common law before marriage. According to the census, 39% of married people aged 25 to 64 lived common law for an average of 3.6 years prior to marrying. There may be a myriad of reasons for living common law depending on circumstances, but one myth that needs to be unraveled is the notion that it is simpler not to get married. Common law relationships have a unique set of considerations.
With the start of a new year and a new decade, we tend to focus more than usual on important personal goals and objectives. One goal to consider is creating a family contingency plan. Your plan can be short and simple, or lengthy and detailed. In brief, it entails creating a list of critical information of who, what and where. Who to call in an emergency, such as close relatives, key professionals including doctors, accountants, lawyers and other professional advisors. What you own, such as bank and investment accounts, retirement, pension and other plans, insurance, real estate, personal effects, including art, jewelry and other valuables and collectibles, and how assets are structured if there are any holding companies, trusts or other entities, and at which financial institutions property is held (including any safe deposit boxes), as well as any liabilities, such as mortgages, loans, lines of credit and credit cards.
In a previous blog, "The Movement to Transparency and the Erosion of Privacy" we wrote about the global move to greater transparency by government and taxing authorities which they claim is necessary to combat money laundering and tax evasion.As part of that agenda which the government asserts is necessary to ensure the effectiveness and integrity of the Canadian tax system, new income tax rules have been introduced which require trusts (with limited exceptions) to provide additional information. As well, certain trusts which may have had no reporting and disclosure obligations because they had no income will now be required to file a trust income tax and information return.
For those of us who live and work in a common law world, it is hard to imagine that we are by far the minority. Most of the world is governed by a civil law regime, customary law or religious law. Continental Europe, Russia, China, Japan, South America, Mexico and some of Africa are governed by civil law. The common law tradition is peculiarly English in origin, and most of its former colonies follow it, including in the U.S. (except Louisiana), Canada (except Quebec), Australia, New Zealand and India.
One of the benefits that a trust and estate lawyer like myself enjoys is that we deal with people of every background, age and personality type and often in very profound ways. In short, we encounter all the diversity that humanity can offer. We see many family situations which gives one perspective and a broad awareness, and we hold the confidence (and confidences) of many in our role as a trusted adviser. This includes dealing with the challenging mental health issues of our clients and their family members from a legal perspective in their estate planning, and offering solutions to often perplexing and thorny issues.
The psychology of wealth is emerging as a distinct area of academic study and research. With aging baby boomers, and the trillion dollar wealth transfer that is now beginning to take place, we need to know more about wealth, how it impacts families, and how to successfully transition wealth.The reality is that most of those who have wealth are new to it. It has been estimated that of wealth holders, 75%-85% are self-made and only 10% -15% are inheritors.
It is timely to consider the topic of medical assistance in dying. Since June 17, 2016, three years ago last week, Canadian law has recognized as a fundamental human right to be protected by our Charter of Rights and Freedoms the right to have assisted dying. On that date, Parliament amended the Criminal Code to legalize medical assistance in dying ("MAID").Canada joined a small but growing number of jurisdictions which allow either assisted suicide (where a person helps another to end their life but the patient takes their own life), such as prescribing life-ending medication, or voluntary euthanasia where a practitioner administers medication that causes a patient's death. Assisted dying is also allowed in Belgium, Colombia, Luxembourg, The Netherlands, Germany, Japan, Switzerland, several U.S. states and the State of Victoria, Australia, but only The Netherlands, Belgium, Columbia, Luxembourg and Canada and just last week, the State of Victoria have legalized voluntary euthanasia.
Much has been written in recent years about the role of the "trusted advisor". A trusted advisor plays a key role in achieving client goals in their best interests and is worth their weight in gold. To do so, a trusted advisor needs to be able to provide clients with sound advice based on experience but also on the ethical dimensions of their decisions.
In Canada, succession rights are often discussed in the framework of testamentary freedom - see for example our previous blog regarding testamentary freedom which discusses disinheriting a beneficiary such as a child who might expect to inherit. But in many parts of the world, a person not only cannot disinherit certain family members, it would not be accepted by society at large in such places that a person should be able to do so.
When it comes to spousal property division on death within the Canadian context, many different laws govern. Under constitutional law, property rights fall within provincial and territorial jurisdiction, and with ten provinces and three territories that means thirteen different jurisdictions, each with their own unique laws to govern what happens on death. What is interesting but also perplexing is how much these laws differ from each other, and as a result, how moving to a different Canadian jurisdiction can significantly impact rights on death arising out of marriage or a common law relationship. It is an issue that is not on the radar when a decision is made to move to a different Canadian jurisdiction, whether because of a new job, for retirement, or to be closer to family.