A Review of the New Power of Attorney Legislation in New Brunswick

Posted on 1 September 2020 by Tim Culbert

1. Introduction

People often make Powers of Attorney to deal with financial (property) and healthcare decisions in the event they become incapacitated by reason of age, accident or other mental infirmity. However, it is surprising how many people do not understand what a power of attorney is for and what are the repercussions creating same. Many frequently asked questions surround powers of attorney, such as: does a power of attorney continue after death?; Is a power of attorney the same as an executor under a Will? Are there different kinds of powers of attorney?

While many provinces have specific legislation related to appointing an enduring power of attorney and the attorney’s duties after appointment, New Brunswick’s power of attorney legislation only recently came into force on July 1, 2020. Indeed, it was the last province in Canada to do so. Prior to this legislation coming into force, lawyers drafting powers of attorney relied on the common law and other statutes for guidance on issues, such as: does this person have capacity to make a power of attorney?; Who can legally act as a power of attorney?; What duties does an Attorney of a power of attorney have to the Grantor?

https://www.cbc.ca/news/canada/new-brunswick/nb-power-of-attorney-legislation-1.4174868

Under the common law, a person has capacity to grant an enduring power of attorney if he or she: a. Is able to understand the basic nature and purpose of the enduring power of attorney; and b. understands the consequences of same (i.e. the Attorney of the power of attorney can make potentially all financial and healthcare decisions for that person, which could cause loss of funds, or decisions that may not be exactly what the Grantor of the power of attorney would make under the circumstances).

The duties of the power of attorney were laid out in various cases in New Brunswick. For example, in LeBouthillier Estate v. Selosse (Appeal by LeBouthillier), 2014 NBCA 68 (QL), B.R. Bell J.A. (as he then was) for the New Brunswick Court of Appeal, outlined the relevant jurisprudence confirming an attorney acting under a power of attorney has a fiduciary duty to the Grantor, meaning the attorney must act in good faith and only in the best interests of the Grantor.

Yet it is difficult to explain with clarity the concept of fiduciary duty to a client without having some specific examples and details about what a power of attorney can and cannot do. Even if the Attorney understands her duties at the time of discussion, she may find herself in trouble later on without some specific guidelines. (for example, see previous post here on misuse of Powers of Attorney).

Add to this the fact that different statutes applied to different aspects of common powers of attorney (i.e. the Infirm Persons Act for personal care provisions and the Property Act for property matters), one can easily understand why powers of attorney could go wrong in executing their duties. (see for example Trites v. Trites and Jones, 2017 NBQB 085, wherein Mr. Justice Rideout of the Court of Queen’s Bench in Moncton ordered the Applicant’s wife and daughter to return two 2016 Toyota RAV4s, which the wife purchased with funds she transferred from her husband’s bank account as his Power Of Attorney.)

2. The Enduring Powers of Attorney Act SNB 2019, c 30

The new Enduring Powers of Attorney Act (the “Act”) provides much needed guidance for legal counsel as well as Grantors and Attorneys on different aspects of creating and using powers of attorney. For example, section 2(1) sets out the required capacity for an individual to make a power of attorney:

Capacity

2(1)A person has capacity with respect to a matter or an act if the person is able to

(a) understand the information that is relevant to decisions with respect to the matter or act, and

(b) appreciate the reasonably foreseeable consequences of decisions with respect to the matter or act.

2(2)A person is presumed to have capacity unless it is determined otherwise.

Although this section essentially codifies the common law requirements for capacity, it is helpful to have this information in one location as a reference point. It is also helpful to clarify that capacity is presumed unless determined otherwise.

Section 4, dealing with the validity of a power of attorney, is one of the more notable sections in the new Act because it adds new requirements for counsel to ensure that a power of attorney is valid. This section reads as follows:

Validity

4(1)An enduring power of attorney is valid if

(a) the grantor had the capacity to make it,

(b) it is in writing and is signed and dated by the grantor or, in the circumstances described in subsection (2), by another person,

(c) in the case of an enduring power of attorney in which an attorney for property is appointed or an attorney for property and an attorney for personal care are appointed,

(i) it is signed and dated in the presence of a lawyer, and

(ii) it includes or is accompanied by a written statement by the lawyer declaring that the lawyer

(A) is a practising member of the Law Society of New Brunswick,

(B) reviewed the provisions of the enduring power of attorney with the grantor,

(C) was present when the enduring power of attorney was signed by the grantor or, in the circumstances described in subsection (2), by another person, and

(D) is of the opinion that the grantor had the capacity to make the enduring power of attorney, and

(d) in the case of an enduring power of attorney in which only an attorney for personal care is appointed, it meets the requirements of paragraph (c) or it is signed and dated in the presence of two witnesses, both of whom are adults and neither of whom is the attorney or the spouse, common-law partner or child of the attorney, and it is signed by the two witnesses.

4(2)An enduring power of attorney may be signed and dated by a person on behalf of the grantor if

(a) the grantor is unable to sign and date the enduring power of attorney,

(b) the person signs and dates the enduring power of attorney at the direction and in the presence of the grantor, and

Section 4(1) adds the requirements for lawyers witnessing the signing of powers of attorney to include statements confirming they have turned their mind to the issue of capacity and confirmed in writing that a Grantor has the requisite capacity as set out in section 2(1). While these details should be confirmed each time a lawyer witnesses the signing of a power of attorney anyway, this section helps ensure these tasks are completed, or the power of attorney would be invalid. Section 4(2) is also interesting, as it allows a grantor of a power of attorney to appoint someone else to sign the power of attorney on his/her behalf. It will be interesting to view the future circumstances under which this section is used.

Another interesting section deals with individuals who are prohibited from acting as powers of attorneys:

Prohibited attorneys

6(1)A grantor shall not appoint the following persons as an attorney:

(a) a person who has been convicted of an offence involving dishonesty, unless the enduring power of attorney states that the grantor is aware of the conviction;

(b) a person who provides health care services or support services to the grantor for compensation, unless the person is the spouse, the common-law partner or a relative of the grantor; or

6(2)A grantor shall not appoint an undischarged bankrupt as an attorney for property.

6(3)If a person who is not an adult is appointed as an attorney, the person may only act when the person becomes an adult.

One final section worth noting is section 12, which deals with the duties of attorneys:

Duties of attorneys

12(1)An attorney shall

(a) act honestly and in good faith,

(b) exercise reasonable care, and

12(2)When making a decision on behalf of a grantor who lacks the capacity to make the decision, the attorney shall consult with the grantor, if it is reasonable to do so, and

(a) make the decision in accordance with any relevant instructions given by the grantor when the grantor had capacity,

(b) in the absence of any instructions, make the decision in accordance with the current wishes of the grantor, if the wishes are reasonable,

(c) if the wishes of the grantor cannot be determined or are unreasonable, make the decision that the attorney believes the grantor would make if the grantor had the capacity to make the decision, taking into consideration the values and beliefs of the grantor, or

(d) if the attorney is unable to determine what decision the grantor would make, make the decision that the attorney believes to be in the best interests of the grantor.

12(3)For the purposes of paragraph (2)(a), if a grantor has given instructions that are inconsistent with previous instructions, the attorney shall make the decision in accordance with the most recent instructions.

12(4)When an attorney for property is acting on behalf of a grantor who has capacity with respect to property and financial affairs, the attorney shall consult with the grantor and act in accordance with the instructions of the grantor.

This section of the Act is particularly interesting, as it requires the Power of Attorney to consult with the Grantor of the Power of Attorney prior to making decisions (if possible).

3. Conclusions

The new Enduring Powers of Attorney Act is a helpful addition to New Brunswick’s legislative landscape. It should help lawyers, Grantors and Attorneys of Powers of Attorney in the future with ensuring the Grantor’s wishes are respected. It will hopefully reduce the amount of misuse of Powers of Attorney, which has unfortunately become a common issue today. Here are some helpful links for more information on this Act:

https://www2.gnb.ca/content/gnb/en/news/news_release.2019.11.0602.html (GNB Press Release regarding Act);
https://www2.gnb.ca/content/dam/gnb/Departments/ag-pg/PDF/en/LawReform/Notes43.pdf (Law Reform Notes 43 (April, 2020), including outline keys sections of the Act);
https://www.canlii.org/en/nb/laws/stat/snb-2019-c-30/latest/snb-2019-c-30.html (link to the Act itself)

Child Support: Can I just pay the child directly?

Posted on 8 March 2018 by Tim Culbert

Not a week goes by that I do not hear the question: “can I pay child support directly to him/her (the child)?”. This question is usually followed by a discussion of why he or she (the other parent) is not spending the child support on the child. In this parent’s theory, the other parent is using the child support funds to go on extravagant trips and other luxury items that are not related to the child’s care. Hence, “why can’t I just pay him/her directly? Then atleast I will know that the funds are going toward the intended purpose.”

The answer to this question is that courts rarely allow child support payments to be made directly to a child; it is the exception rather than the rule. Courts in Canada have stated that compelling reasons must exist for payments to be made directly to a child. In Mylrea v. Benoit, 2003 CanLII 1975 (ON SC), the Ontario Superior Court responded as follows to a father’s request to set up a trust to pay child support directly to the children:

[31] Mr. Mylrea requests the right to limit the amount of child support that goes directly to Ms. Benoit to the sum of $248.00 each month, with the balance to be paid into a trust account for the benefit of the children. Again, even if I were inclined to do that – and I am not in the least – authority prevents me from doing so. In Simon v. Simon (2000) 1999 CanLII 3818 (ON CA), 1 RFL (5^th) 119 (Ont.C.A.), MacPherson, J.A., in delivering the judgment of the court, said this (at page 134 of the Report):

——-

It may be that in some cases a court imposed trust to secure funds for a child’s future care and education would be appropriate. However, in my view, absent a good reason for imposing a trust, the court should not do so. The presumption should be that a custodial parent will do his or her best to provide for both the child’s immediate needs and his or her future care and education. Unless there is strong evidence establishing the need for a trust (e.g. the misuse of support payments by the custodial parent) I see no reason to interfere with the way in which the parent balances the present and future needs of the child in his or her custody.

(emphasis added)

In L. B. L. v. S. B., 2010 NBQB 339 (CanLII), Justice Walsh of the Court of Queen’s Bench of New Brunswick dealt with a situation where the payor mother was attempting to create her own system of child support payments to her child on the grounds that the father wasted funds meant for the child:

[65] On the totality of the evidence it is clear that the mother cannot stand the thought of paying child support directly to the father, despite the absence of any cogent evidence that the father was wasting the sums that he did receive through garnishment. By any means, by any claim, the mother has now sought to create her own system, to permit her to directly support or reward the children for her own purposes, to ignore the law’s requirements. The receipted claims she made in this case and the claims she has filed with Revenue Canada constitute clear evidence of her present approach. The irony is that the vast majority of the arrears that were terminated in May 2009 were for a period when the mother was having little, if any, contact with the children, and the children would appear to have forever lost this money owed to them (See: Beninger v. Beninger 2009 BCCA 145 (CanLII)).

[66] In these circumstances I apply Swiderski v. Dussault:

While D.B.S. [v. S.R.G. et. al., 2006 SCC 37 (CanLII)] at para. 109, opens the theoretical possibility that the payor parent can justify himself by showing total payments equivalent to the Guidelines amounts, this, I suggest, presupposes candour, openness and satisfactory proof of the amounts. None is present in this case.

There are at least two reasons why payors should not be able to create their own support regimes. The first is that the receiving parent usually has custody, and must be the one to make decisions about the child’s expenditures. A private unilateral scheme operated by the payor can be a method of control which undermines the authority of the custodial parent. The second reason is that the payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record-keeping …

(2009 BCCA 461 (CanLII),at paras. 38, 39) (emphasis added)

These cases stand for the proposition that child support is meant to maintain a child’s permanent home and to cover the incidentals that a custodial parent provides to a child (see Armaz v. van Erp, 2000 CanLII 22585 (ON SC) ). I often explain it this way to clients: just think of how much you might spend on the children or other incidentals if you were still living in the same home with the other parent. Wouldn’t it likely be more than you are spending right now? And regardless of whether these funds go directly toward the children or not, there are certain expenses the other parent must pay to keep the children’s quality of life similar to what they would have experienced if you were living with the children, correct?

As stated earlier, there are some exceptions to this rule, such as when the parents’ relationship is extremely acrimonious and the child lives away at school (see B. (T.T.) v. D. (P.H.), 2014 NBQB 164).

Are you a Landlord or a Tenant looking for information? Check out this site

Posted on 6 October 2017 by Tim Culbert

I attended a Continuing Legal Education session this week on Real Property Law and one of the presenters was the newly named “Chief Residential Tenancies Officer.” I must admit that I had no idea that the Office of the Rentalsman had been recently renamed as the Residential Tenancies Tribunal. The website for this tribunal has lots of information that can be helpful if you are a tenant or a residential landlord. What is especially helpful are the various forms and resources, which include Form 6 – Standard Form Residential Lease. I highly recommend that both landlords and tenants spend some time navigating this site and taking advantage of the many resources contained within the site. Here is a link to the site: https://www.snb.ca/RTT-TLL/E/RTT-TLL_E.asp

Amendments to Family Services Act in NB Considers Grandparents in Custody Matters

Posted on 28 July 2017 by Tim Culbert

The New Brunswick Government recently amended Section 129(3) of the Family Services Act to consider other parties, including grandparents’ access to their children. Section 129(3) of the Act used to state that “upon application the court may order that either parent or any person shall have access to a child”. The New Brunswick Court of Queen’s Bench referred to this section in cases such as, G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 regarding whether grandparents have rights to access their granchildren. In GG, supra, Madam Justice D’Entremont referred to Morecraft, which stated “[t]here is no automatic right of access to third parties“. In an earlier post (see here), I noted the difficulty the wording of section 129(3) posed to questions regarding grandparent’s access to their grandchildren.

On May 5, 2017, the New Brunswick Government passed the bill–An Act to Amend the Family Services Act. This Act essentially replaces the current section 129(3) with the following:

129(3)Repealed: 2017, c.22, s.1

129(3.1)On application, the court may order, on the basis of the best interests of the child, that either parent, a grandparent, another member of the child’s immediate family or any other person shall have access to a child, whether or not an order for custody has been made with respect to the child.

129(3.2)An order under subsection (3.1) shall be made subject to the terms and conditions that the court determines.

129(3.3)On application by a grandparent or another member of the child’s immediate family, other than a parent or guardian, the court shall take into consideration the willingness of each parent or guardian of the child to facilitate access and the need for making an order for access.

129(3.4)An order under subsection (3.1) may provide that access be exercised in the form of visits, oral or written communication or by any other means of communication.

129(3.5)The court may vary or discharge an order under subsection (3.1) at any time.

These amendments broaden the items a judge must consider when making an order for access to a child to “grandparents” and “another member of the child’s immediate family.” In addition, section 129(3.4) specifies that access may be through visits or other means of communication (likely email, Facetime, Skype, etc.) These are likely welcomed changes for grandparents who have, until now, not been explicitly mentioned. As stated in my post <a href=”https://www.purvisculbertlaw.ca/proposed-changes-to-family-services-act-in-new-brunswick-to-consider-role-of-grandparents/”>here</a>, however, how these amendments affect grandparent’s access to their grandchildren will depend on how courts in New Brunswick interpret and apply these provisions in future

Here are some links to more information on these amendments:

– Copy of An Act to Amend the Family Services Act: https://www.gnb.ca/legis/bill/pdf/58/3/Bill-49.pdf

– Link to status of the bills in NB Legislature: https://www1.gnb.ca/legis/bill/print-e.asp?legi=58&num=3&page=4

– Link to current version of the Family Services Act: https://www.canlii.org/en/nb/laws/stat/snb-1980-c-f-2.2/latest/snb-1980-c-f-2.2.html

Proposed Changes to Family Services Act in New Brunswick to consider role of Grandparents

Posted on 6 April 2017 by Tim Culbert

The New Brunswick Provincial Government recently announced that it intends to amend the Family Services Act to include consideration of grandparents in custody and access matters. Here is a link to the press-release for this announcement. Currently the Family Services Act allows “either or both parents or any person, either alone or jointly, with another” to be granted custody of a child. (emphasis mine)

The “any person” has been used in the past to include grandparents, but as you may recall, I wrote in a previous post about the difficulties grandparents face in seeking access to their grandchildren (https://www.purvisculbertlaw.ca/do-grandparents-have-access-rights-to-their-granchildren/. ) Essentially, parents are–rightfully so I might add–the primary decision makers for their children. Therefore, absent serious reasons for replacing a parent’s role as primary decision maker (i.e. abuse, neglect), access decisions typically flow through the parents. If parents do not wish for their children to see their grandparents, then it is difficult for Courts to order access.

One key question about the proposed changes will be: Just how will the Provincial Government include reference to grandparents in the Family Services Act? The answer to this question will help determine how beneficial the amendments will be for grandparents involved in custody disputes. As noted in my earlier post, courts apply the “best interests of the child” test to custody matters, so how further inclusion of grandparents in the equation will affect the outcome of custody disputes will depend on how the changes require judges to consider grandparents more than they do already! (see G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 mentioned in prior post).

Overall, however, this is a welcomed announcement for grandparents. The proof will be in the details and the implementation of the proposed changes.

5 tips for home buyers prior to closing!

Posted on 27 March 2017 by Tim Culbert

In the 1986 movie, the Money Pit, a young couple move into a home that is terribly dilapidated. While falling down stairways and leaking bathtubs in this movie are enjoyable for comedic value, no one enjoys these things when they happen to you!

A home is the single largest purchase most people will ever make. Therefore, it is important to take the time to investigate your purchase prior to closing and not be pressured by lawyers, real estate agents or family members. Also, you should be careful not to fall in love with a home (too much) prior to proper inspection. You may be excited about your new home, but if you choose to waive your inspection, miss defects, or close on an “as is where is basis,” disaster may follow. For example, in Anderson v. Lawrence, 2013 NBQB 21, Justice Morrison of the Court of Queen’s Bench of New Brunswick heard the home purchasers’ claim against the vendors’ for negligent and fraudulent misrepresentation. The purchasers suffered serious water damage in their basement and the ceilings in the main floor of the house caused by a leaky roof.

The purchasers had viewed the property prior to purchase and saw water in the basement and detected a musty smell, but were assured by the vendors and a real estate agent that the problems had been solved. There were also issues with the septic system. Finally, the purchasers received 17 acres of land rather than 34 acres, as the vendors represented.

The Court in Anderson, supra held that the vendors both negligently and fraudulently misrepresented the water leakage and the size of the land. As a result, the Court ordered the plaintiffs were entitled to $24,339.49 for costs of repairs and $13,070 for the value of the missing 17 acres of land in addition to interest and legal costs.

This case is a helpful lesson to purchasers of homes to be extremely critical before committing to a purchase. It’s easy to end up with your own version of a money pit! Here are some helpful tips to assist you with the purchase of your home:

1. Hire a licensed property inspector. The cost ranges from $200-$500, but will be worth every penny if your inspector finds issues that you may not be able to see with your own eyes;

2. Use checklists to evaluate the condition of the home. Here is a link to a helpful checklist that you may wish to use to evaluate the condition of the home. As stated in the checklist, it should not be relied upon nor be a replacement for a certified home inspection. We make no representations or warranties about the accuracy of the information either, but believe it is a helpful starting point;

3. Attend the inspection with your licensed inspector. Make sure you attend the home with your inspector and ask lots of questions;

4. Read the inspection report carefully and discuss with you inspector, legal counsel and real estate agent;

5. Research the inspector. Not all inspectors are created equally. Take the time to ask potential inspectors questions about their experience, qualifications, costs, etc.

She doesn’t want to go on access visits. Do I still need to send her?

Posted on 9 March 2017 by Tim Culbert

Like all family law issues, the question of whether to send a child on an access visit when the child expresses she does not want to go is fraught with difficulties. Courts have determined that the answer is ultimately fact specific. In Geremia v. Harb, 2007 CanLII 1893, Justice Quinn held that a custodial parent must do everything possible, even physically forcing the child, to ensure that the child attends access visits. He stated at follows at paragraph 44:

[44] Mr. Wilson argues that our law does not require a parent, who wishes to avoid a contempt citation, to physically force a child to go on an access visit. I respectfully disagree with that argument as a general legal principle. Whether a child should be physically forced by the custodial parent to go on an access visit depends upon the facts of the case. Certainly, the force used should not be such as to cause physical harm to the child. And, although the specter of emotional harm is far more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason. Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

(emphasis added)

At paragraph 38 in Germania, Quinn J. quoted Zuber J. in Singer v. Singer regarding situations where a parent is not actively denying access but the child does not wish to go and the parent is not forcing the child to go with the other parent:

[38] What about cases where the custodial parent insists that he or she did not wilfully refuse access to the other parent but, instead, the child refused to go on the access visit? Two cases were cited by Mr. Wilson on this issue. The first one is Singer v. Singer (1974), 17 R.F.L. 18 (H.C.J.), where a father complained that the mother refused to comply with the terms of an access order. Zuber J. commented, at p. 19: [Counsel] has cited me an American authority, but it sounds very sensible to me and I would be prepared to follow it, that the mere whim of a child, that the child’s preference cannot be the governing factor in these matters.

In L.C.M. v. B.A.C., 2010 NBQB 127 (CanLII), Walsh J. of the New Brunswick Court of Queen’s Bench quoted paragraph 44 of the Germania case and stated, “In my opinion those comments have application to the modified circumstances in the present case. It cannot be forgotten that S. is only 7 years old. ” However, Walsh J. noted that while the mother’s failure to send the child would normally be of great concern, given the father’s behaviour (unsubstantiated allegations of sexual misconduct) and the mother’s contributions to the alienated situation, an order for contempt was not appropriate. Walsh J. considered the best interests of the child and granted sole custody of the child to the mother but with unsupervised access to the father.

What stands out in these cases is that there are no “hard and fast” rules about whether to send a child on access visits or not. However, absent satisfactory reasons for not sending a child, Justice Quinn’s comments in Germania are instructive: “the job of a parent is to parent.” (emphasis added) In other words, both cases stand for the proposition that custodial parents should not refuse to send children on access visits based on the mere whims of the children in stating that they do not wish to go, unless there are substantiated reasons for refusing to do so. Another key takeaway from these cases is that parents who do not make reasonable attempts to ensure that children attend access visits may face allegations of contempt of court. (see for example, Cashman v. Cashman, 2014 ONSC 3581 (CanLII), distinguishing Germania but providing an instructive discussion of civil contempt in family law matters).

Do you know about the Family Law NB website?

Posted on 22 February 2017 by Tim Culbert

1. Access to Justice in Canada

Access to justice is a serious problem in Canada for several reasons:

1. many people cannot afford legal services;

2. not enough judges;

3. not enough courthouses;

4. need for streamlining of many legal processes.

See for example, Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil and Family Justice: A Roadmap for Change”, online: (October 2013) Canadian Forum on Civil Justice <https://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf>

2. PLEIS Family Law NB Website

One way of increasing access to justice is the use of “self-help” resources and websites, which provide information and step-by-step guides on completing court forms and how to navigate the judicial system. One of my favorite such websites is the Public Legal Education and Information Service of New Brunswick (PLEIS) Website, which houses a plethora of useful information on various areas of the law. Here is a link to PLEIS’ main page. In addition to the links on the main page, PLEIS has a website dedicated to family law information. Here is a link to the PLEIS family law page. This website has “how-to” guides on filling out Court forms, videos from experienced family law practitioners and information about training sessions and courses available in your area. I have presented at a few of these sessions and bumped into course attendees years later, who mentioned how helpful they found the information.

While websites like the PLEIS website and the Family Law NB website should not be a complete substitute for competent legal advice, they may help you to gather information and narrow down issues before speaking to a lawyer. Also, I have had people attend my office with some of their divorce forms already filled out. This saves them time and money because our office staff can review these documents and make suggestions for revisions without having to start from scratch.

3. Social Media Options

I am a big believer in social media. If used correctly, one can personalize the information taken in and keep up to date on current events. I would highly recommend anyone interested in learning about Family Law (or any other area for that matter) should follow PLEIS on Facebook and Twitter for courses in your area and general information. Also, take a look around their website, as it is truly a wealth of information to get you started!

Tip of the Week: Incorporated business owners — have you remembered to file your annual return?

Posted on 17 February 2017 by Tim Culbert

As the sun begins to shine and we creep ever closer to spring (okay, I’m being optimistic), companies may be coming up on their corporate year ends. Don’t forget that you will receive a notice each year reminding you to fill out your annual return and to file it with Corporate Affairs. Many people confuse the Annual Return with “some sort of financial report” because it occurs around the same time of year as your corporate year end.

Section 85(1) 0f the Business Corporations Act requires the directors of a corporation to call an annual meeting of the shareholders each year not later than eighteen months after

(i) the date of its incorporation, or

(ii) the date of its certificate of amalgamation, in the case of an amalgamated corporation,

and subsequently not later than fifteen months after holding the last preceding annual meeting; and

(b) may at any time call a special meeting of shareholders.

The annual general meeting is when the directors should be reporting to the shareholders on the financial status of the corporation. Also, this is when the shareholders elect new directors or affirm past directors. Once you hold the annual general meeting, you are ready to file your annual return, which is basically an up to date statement of the company’s current directors and their contact information.

Section 187 of the Business Corporations Act, SNB 1981, c B-9.1 states that “A corporation shall, on or before the last day of the month following the anniversary month of the corporation, send to the Director (of Corporate affairs, not one of your own directors) without notice an annual return in the form provided by the Director signed by a director or an officer of the corporation and the Director shall file it.”

It’s easy when the summer months come around to stash the reminder notice from Corporate Affairs in a drawer and forget to file it. If this happens, your corporation will be labeled “intent to dissolve” after a period of time and you will have 60 days to file your return before the dissolution. It will cost you far more to re-establish the corporation than to file you annual return in the first place ($60 if you file online and $80 if you file in paper format). Here is the link to the New Brunswick Corporate Affairs website with the forms for filing your annual return.

Should you have any questions, pleas do not hesitate to contact us.

Tip of the Week! Budget early for costs related to property purchases

Posted on 5 August 2016 by Tim Culbert

The Real Property Transfer Tax Act requires purchasers of property to pay a one-time tax upon purchase of a property in New Brunswick. On April 1, 2016, the real property transfer tax increased from 0.5 per cent to one percent of the assessed value of a property or the actual purchase price, whichever is higher. This can result in significant increases in closing costs for purchasing a home. For example, transfer taxes on a home purchased for $150,00o would have been $750.00 prior to April 1, 2016. After this date, the transfer taxes would be double at $1,500. In addition to other closing costs (registration fees, title searches, etc), disbursements related to property purchases can feel unpredictable and overwhelming if you are purchasing a property for the first time.

TIP: Budget early for costs related to property purchases and take the time prior to committing to a purchase to speak with your lawyer about possible costs! This can help you avoid unnecessary stress leading up to what is likely the single most expensive investment most people will make–your home!