Progressive Legal Counsel
Progressive Legal Counsel
Welcome to the COVID-19 and The Law updates page of Hummingbird Lawyers LLP. Click on one of the yellow links to see the updates of each department.
Prospective buyers looking to buy pre-construction homes during the pandemic are facing new challenges and uncertainties when it comes to knowing when their desired home will be move-in ready.
Along with a host of other issues, COVID has brought with it supply shortages and demands for labour and materials which has inevitably delayed the progress of real estate development. These unforeseeable delays leave little to no recourse for purchasers. If developments are being affected by these delays, the builder has the right to extend the dates for occupancy through claiming ‘Unavoidable Delay’ – an option that does not require the consent of the purchaser.
Under Tarion, builders can trigger the ‘Unavoidable Delay’ clause citing the pandemic, which pauses the clock on remaining critical dates in the purchaser’s Tarion Addendum (listed in every pre-construction Agreement of Purchase and Sale).
Unlike a normal delay due to the fault of the builder where the purchaser is entitled to $150.00/day up to a maximum of $7,500.00, the Unavoidable Delay clause does not require the builder to pay delayed occupancy compensation if they follow the Tarion guidelines. Interestingly, a builder can claim this delay without any approval process from Tarion. It is entirely possible for abuse of process should a builder be seeking extra time to complete the project. If and when a Purchaser submits a claim for delayed compensation with Tarion, it can then be reviewed.
Under the guidelines, the builder is required to complete two steps:
Step 1: The builder needs to issue a notice to the purchaser at the earlier of: (a) either the next critical date, or (b) 20 days from when the Builder knows or reasonably ought to know that an unavoidable delay has commenced. At this time, they must give the reason for the delay and an approximate length of the delay (which is usually speculative).
Step 2: Once the builder knows or reasonably ought to know that the Unavoidable Delay has concluded, they must issue a second notice to the purchaser no later than 20 days following the conclusions of the delay. This notice will set out a new set of critical dates.
The Critical Dates listed in the Addendum can only be extended by the period of Unavoidable Delay, (i.e. the period of time between the direct impacts of the pandemic itself and a Remobilization Period). The Remobilization Period is any additional delay due to the after-effects caused by the pandemic, such as delays of returning to work, backlog of work to be done by trades, supply disruptions, etc.
The calculation for the extension sets out maximum extension only, meaning, the Vendor can extend by less than this total if the Purchaser has at least 10 days’ notice before the next critical date.
Important to note is that if the builder fails to issue these notices correctly, the notices could be deemed ineffective, and the original critical dates would be reinstated.
From what we have seen, builders may be reluctant to send out the notice of new critical dates too soon, as these new dates are based on an estimate, with the hopes that there are no further unforeseeable delays. If the builder errs and need more time, they cannot issue another notice. In this case, the fault of the additional delay would fall onto the builder, therefore allowing the purchaser to be eligible for delayed compensation costs.
Navigating the real estate development space in the time of COVID can be confusing. Speaking to a lawyer with deep knowledge in the Tarion warranty process can help bring needed guidance to the purchaser in terms of understanding their rights and responsibilities.
For more information, please visit Tarion Statement of Critical Dates and Tarion.
August 6, 2021
Azra Manori
Tarion Warranty Corporation reinstated builder repair periods, warranty claim submissions and reconciliations on August 27 ending their suspension because of the Provincial Emergency order.
That due between March 16 and September 11, 2020, have a September 11, 2020 deadline to submit them.
During this time, Tarion will provide information and guidance to help homeowners across the province.
If you have questions, call the Customer Service team at 1-877-982-7466 or covid19@tarion.com.
August 28, 2020
Andrew Fortis
What you need to know:
In essence, residential real estate transactions move forward. However, business is not all as usual. Social distancing is our new normal.
To mitigate health risks, remote signing has become a crucial tool. Through the use of video conferencing, you are able to virtually meet with your lawyer to review and sign the documents necessary to close your purchase and/or sale.
For more information about remote signing options for your residential purchase and/or sale closing, contact one of our real estate lawyers today.
April 4, 2020
Date: Recorded on April 1st 2020 at 4PM
Speaker: Andrew Fortis
Andrew is certified by the Law Society of Ontario as a Specialist in Real Property and is the Practice Lead for Real Estate and Corporate & Commercial Law at Hummingbird Lawyers LLP.
April 1, 2020
Andrew Fortis
Standard liability waivers may not cover Covid-19 infections contracted while in an apartment, condominium or student residence.
Talk to Hummingbird Lawyers LLP for the latest advice on protecting your company against potential legal issues resulting from the Coronavirus.
Liability Waiver Update for Shared Residences
July 10, 2020
Mitchell Singer
Ontario moratorium on commercial rent evictions may be coming soon to assist small businesses. Landlords are encouraged to apply for CECRA if eligible.
June 10, 2020
While COVID-19 has impacted everyone in one way or another, small businesses on the hook on commercial leases are one of the hardest hit sectors during the COVID-19 pandemic.
On Friday April 24, Prime Minister Justin Trudeau recently announced a partnership with all provinces and territories to lower rent for small businesses affected by COVID-19 by 75 per cent. This government initiative is being implemented under a program referred to as the Canada Emergency Commercial Rent Assistance (CECRA) for small businesses.
Based on the current information available at this time, it appears commercial landlords have the onus of applying for the CECRA program, which includes a forgivable loan to qualifying commercial landlords to cover 50% of rent payments for the months of April, May and June.
To qualify for CECRA, both commercial landlords and tenants need to meet pre-established conditions as set out by the government. Part of the government’s requirement is the need for a Rent Forgiveness Agreement between the commercial landlord and the small business tenant. More information on the details of the program are available here.
The CECRA program is expected to be operational by mid-May. As with other newly announced COVID-19 programs, there are a number of details that have yet to be addressed by the respective federal and provincial governments. Further details of the CECRA program are expected to be announced soon.
Contact our Business and Corporate lawyers to assist with navigating the new CECRA program or any other commercial landlord and tenant issues during these uncertain times.
April 27, 2020
The Government of Canada established a series of programs to facilitate access to credit for Canadian businesses, including the Business Credit Availability Program and the Canada Emergency Business Account. Here is a summary description of these credit programs.
Hummingbird lawyers are here to help you navigate these programs and facilitate and expedite financing.
Dianne Prupas
dianne@hummingbirdlaw.com
April 7, 2020
Dianne Prupas
With the recent slow-down in business caused by the COVID-19 pandemic, a number of franchisees across Ontario have questions on their rights and obligations. Franchisees are reminded to review their contracts to see whether the COVID-19 pandemic gives franchisees the right to pay less fees or walk away from their contract completely. Franchisees are not advised to stop all payments, including rent and royalties, as doing so can be a breach of their contractual obligations. Although the COVID-19 pandemic has caused interruption to businesses across Ontario, it has provided for a unique opportunity for franchisees to negotiate with their franchisor, landlord, suppliers, insurers and lenders. Hummingbird Lawyers are here to help you explore your rights and obligations as a franchisee.
April 3, 2020
The Province of Ontario has extended the emergency order allowing Wills & Powers of Attorney to be witnessed by video until December 21st, 2020. If you need these documents, but do not want to meet in person, Hummingbird Lawyers can help.
November 21, 2020
As the Province of Ontario slowly takes steps to shake off the Covid-19 induced hibernation, the Temporary Suspension of the Limitations Period is set to end on September 14, 2020, pursuant to Ont. Reg. 457/20: Limitation Periods.
But what does it all mean?
It means that the temporary suspension acted like a stopwatch. Any limitation period or period of time within which a step must have been taken in a proceeding during the temporary suspension period under the Ont. Reg. 73/20 will resume running on September 14, 2020, and the period from March 16, 2020 to September 13, 2020 will not be counted. For ex. If a step had to be completed by March 30, 2020, being 14 days after the start of the Temporary Suspension on March 16, 2020, the time to complete such a step will run out 14 days after September 14, 2020.
August 27, 2020
Ioulia Vinogradova
In Ontario, pursuant to the Section 7 of the Estates Act R.S.O 1990 c. E.21 the Application for a Certificate of appointment of Estate Trustee with or without a Will must be filed with the Superior Court of Justice in the county or district in which the deceased resided at the time of death. During COVID-19 various Courts have various procedures in place. Please contact our Estates Team to guide you through this process during COVID-19.
April 28, 2020
Ioulia Vinogradova
On April 7, 2020, the Province of Ontario allowed for virtual witnessing of Wills and Powers of Attorney during the COVID-19 emergency as long as one of the two witnesses is a lawyer or a paralegal.
On April 22, 2020, virtual witnessing of Wills and Powers of Attorney can be done in counterparts. This allows each witness and the maker of the Will and Powers of Attorney to sign a separate identical copy of the documents, which together form the complete Will and Power of Attorney.
In response to this news, we are actively working to stay current with the procedural guidelines as part of the Hummingbird Virtual Estate Planning process. To know more about our process, contact a Wills & Estates lawyer today. For your estate planning needs, fill out our Personal Intake Form For Estate Planning to get started today.
April 27, 2020
Safety procedures put in place in an effort to limit the spread of COVID-19 have suspended many of the day-to-day activities. However, the natural order of things, for the most part, remains. Mothers continue to birth children, the days, and with them the seasons, continue to pass, and some die. The death of a loved one is never easy. During the current unprecedented times we live in, restrictions on social interaction may make the loss of a loved additionally hard.
If you are a relative, or a friend, of someone who died and have been named as an Estate Trustee in their Will, or if you wish to be named the Estate Trustee of an Estate, the Courts continue to accept applications for a Certificate of Appointment of Estate Trustee with or without a Will during COVID-19.
Please contact our Estates Team to guide you through this process during COVID-19.
Read more about probate.
April 18, 2020
Ioulia Vinogradova
The province’s Minister of Long-Term Care said over the next 48 hours the province will be launching more “aggressive testing, screening and surveillance”. This will include limiting healthcare workers from moving between multiple sites.
April 16, 2020
Amy MacAlpine
Breaking news! Across Ontario, virtual witnessing of Wills and Powers of Attorney is allowed, as long as one of the two witnesses of your Will and Powers of Attorney is a lawyer or a paralegal.
In response to this news, we are actively working to stay current with the procedural guidelines as part of the Hummingbird Virtual Estate Planning process. To know more about our process, contact a Wills & Estates lawyer today. For your estate planning needs, fill out our Personal Intake Form For Estate Planning to get started today.
April 7, 2020
As the global impact of COVID-19 continues to evolve, the well-being of our clients, our employees, and the communities we serve remain our top priority. We here at Hummingbird Lawyers LLP, actively continue to monitor updates and recommendations from the World Health Organization (WHO), and provincial and federal public health agencies.
We understand that during these tumultuous times, many Canadians have questions about estate planning. In response to the high volume of requests for the preparation of wills received over the past week, we are now able to serve our clients completely remotely. Hummingbird has launched Hummingbird Virtual Estate Planning. This online service will give you the opportunity to have your Will, and Power of Attorney for Property, and Power of Attorney for Personal Care drafted and reviewed by a lawyer at Hummingbird Lawyers LLP virtually, without the requirement of attending our offices.
March 30, 2020
During his inaugural speech, John F. Kennedy encouraged Americans to somehow contribute to the public good. At this time of our fight against the coronavirus pandemic, the Ontario Government is encouraging everyone to maintain social distance. However, the Ontario Government has not amended the strict rule that for a Will to be valid two (2) witnesses must be in the physical presence of the Will-maker and each other at the time of signing of the Will. Join Hummingbird Lawyers in our support of the petition to Amend Ontario’s Succession Law Reform Act to allow virtual witnessing of wills.
March 30, 2020
Ioulia Vinogradova
One of the most concerning issues in family law, arising from the COVID-19 pandemic, is the anticipated sharp decline in the value of assets since the date of separation. In Ontario, married spouses equally share the wealth they have accumulated during their marriage. The wealth accumulated during the marriage by each spouse is called “net family property” (NFP). In order to calculate the NFP for each spouse, we look at the value of assets and debts, as crystallized on the date of separation. In very simple terms, and subject to some exceptions, the spouse who has a higher NFP (meaning, who has accumulated more wealth) is required to pay one-half of the difference between the parties’ respective NFPs to the spouse with a lower NFP.
Now imagine a case where the parties separated last July and they are trying to calculate the equalization payment using the value of their assets then. For jointly owned assets, both parties equally share the decline in the value of a property. However, that is not the case for solely owned assets. For instance, if the matrimonial home is the wife’s name alone, which was worth $1,000,000 in July 2019 but it is now valued at $850,000, then does that mean the husband receives one half of the value on the date of separation (that is, $500,000) or one half of the current date ($425,000)? It would seem unfair if the wife alone had to incur the loss in the value of her property, while the husband benefited from the pre-COVID valuation of the same property, wouldn’t it?
Luckily, section 5(6) of Ontario’s Family Law Act provides for unequal division of property in exceptional circumstances, such as unforeseeable fluctuations in the market after separation. However, for this section to apply, the asset owner (the wife in our example above), will have to meet a very high threshold test for an unequal division her NFP. The Ontario Court of Appeal has stated that the circumstances of the case must be so that an equal division of the net family properties would “shock the conscience of the court.” Section 5(6) was applied successfully in the case of Serra v. Serra after the 2008 market decline, which had significantly reduced the value of the husband’s textile business.
If you are currently considering a property settlement in your family law matter, make sure you consult with experts, such as evaluators, to understand the effects of the ongoing and future market fluctuation on the value of your assets. Also, speak with your family law lawyer to see if you can come up with creative solutions in how to structure a property settlement that can address your financial needs now, but also protect you from making a bad deal.
April 22, 2020
Ella Aiaseh
With the COVID-19 pandemic affecting an individual’s employment and earning ability, there has been a rise in discussions surrounding the variation of the support obligations for separated spouses who have an existing agreement or court order for child and/or spousal support. In most cases, a support payor or recipient is entitled to seek a variation to support based on a material change in circumstances. A loss of employment or a considerable decrease in income is considered a ‘material change in circumstances’ (unless expressly stated otherwise), allowing the support payor to seek a reduction in his or her monthly support obligation.
If you are a support payor who has experienced a loss of employment or a substantial decrease in income due to the COVID-19 pandemic, make sure you review your existing agreement or court order with your family law lawyer to see if a variation to the existing support payable is appropriate in your case. It will be helpful to ensure that you have all the relevant documentation regarding your loss of employment or reduction in income, as well as the documentation relating to any governmental funding you have applied for or received. Having such documentation prepared will allow your lawyer to engage in meaningful negotiations with your previous spouse (or his/her lawyer).
April 21, 2020
Ella Aiaseh
During these unprecedented and difficult times, when resources are limited and stress levels are high, your family law disputes may seem too expensive for your shrinking budget. One of the best ways to reduce the stress and resolve your disputes in a cost-efficient manner is through engaging in reasonable settlement discussions. But in order to successfully resolve your issues through settlement, you have to be prepared to make compromises on some issues and prioritize the issues that are most important to you. The first step to achieving this is educating yourself on the parameters of Ontario’s Family Law. The more you understand your rights and responsibilities in a family law dispute, the better you will be able to focus the discussions with your lawyer and the opposing party on topics that are most important to you.
The Avanti Foundation and the Law Foundation of Ontario have supported the development of an online information portal, called the Family Law Portal, assisting those who are going separation and divorce in Ontario to better understand their rights and responsibilities, the important decisions they need to make, the documents they need to collect, and how to prepare for the next steps. The Family Law Portal is a free, online, information portal available to any person and a great starting point for you to try to make sense of it all. Once you understand the issues that you are facing in your separation/divorce, then you can have more focused discussions with your lawyer and reach meaningful settlements with the opposing side. More focused discussions means less billable hours for your lawyer, and more money in your pockets.
Remember, there is more than one solution—other than, running to court—to your family law problems. The more informed you are, the more creative solutions will become clear to you. But keep in mind that the Family Law Portal is only an online information centre, and does not amount to legal advice. Each case is specific to its facts and each fact may make a difference. Once informed of your basic rights and obligations, make sure you review your options and creative solutions with a family law lawyer before entering into any agreements that you may regret later.
April 9, 2020
Ella Aiaseh
(Brampton, Guelph, Milton, Orangeville, Owen Sound, and Walkerton)
As of April 6, 2020, the court has provided additional directions on urgent matters.
All urgent hearings must be requested from the court, in letter not exceeding two pages, setting out the relief requested, why the matter is urgent, including a draft order and a confirmation that the matter can be dealt with by way of a conference, if approved.
These letters requesting an urgent hearing, are reviewed by a judge, who will determine that matter is urgent.
If not urgent, you will receive an endorsement by email. If determined to be urgent, then you will receive an endorsement, setting out the details for filing materials, timelines and other directions.
There is an electronic size limit of 10MB for material and parties have to undertake to pay all applicable court fees upon the court resuming regular operations.
Additional Matters (as of April 6, 2020):
1. Consent Motions
If you and the opposing party have reached an agreement, you can have the terms of the agreement converted into a court order by a consent motion. You have to include a consent order and the presiding judge, after reviewing the material will grant the order as requested or amended. The judge may deny to grant the order requested if there are deficiencies or due to other reasons, which will be explained in an endorsement.
2. Written Motions
If you and the opposing party agree to have certain issue(s) determined based on written materials only and without a case conference, then you can submit it electronically to the court.
A judge will review the materials and issue an endorsement/order on the motion.
3. Case Conferences
Available for one or two urgent or pressing issues identified by the parties.
The duration of the conference is limited to 30 minutes
The Case Conference briefs must be limited to 4 pages, plus limited attachments. Parties must include proof of service, identify the issues to be canvassed and provide draft orders. They must also provide at least 3 available dates and times for the hearing.
Counsel must also confirm that they have fully discussed the issues for the conference.
A judge will review the briefs and the materials and issue an endorsement by email regarding the time of and directions for the case conference.
In all of the non-urgent matter filings, parties have to keep in mind that the judges do not have access to the documents previously filed. Therefore, any relevant document must be included in the email. The electronic size limit is 10MB and the parties have to undertake to pay any applicable court fees upon the court resuming normal operations.
For more information on filing processes, please visit Ontario Courts.
April 6, 2020
Ella Aiaseh
(Barrie, Bracebridge, Cobourg, Durham, Lindsay, Newmarket, Peterborough)
As of April 6, 2020, the following matters may be heard virtually or in writing, as directed by the court.
The following matters may be heard virtually or in writing, as directed by the court:
On Consent – by way of 14B Motion, on issues regarding
April 6, 2020
Ella Aiaseh
Since their closure, the Ontario courts have been hearing urgent motions with respect to whether or not parents should be following their court ordered access during the COVID-19 pandemic. Since mid March, the Superior Court of Justice has heard multiple matters and have consistently provided the same message; the parties should be following their court ordered parenting plans at this time.
Ribeiro v. Wright was the first family law access case heard since the COVID-19 measures were put into place. In this Hamillton, Ontario case, Justice Pazaratz stated: “No matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.”
In Le v. Norris, we see this same messaging. The courts have consistently stated that a parent’s anxiety surrounding the COVID-19 crisis is not sufficient evidence to suspend an existing access order. In this case, Justice Conlan stated that the parties need to be responsible while still adhering to existing court orders. Justice Conlan then specifies that being responsible means being practical and having “some basic common sense.” Ultimately, Justice Conlan ordered that the parties must comply with the existing court ordered access “in all respects” and included a police enforcement clause to ensure that the parties complied.
This same messaging was applied to matters involving parents who are healthcare professionals. In Zee v. Quon, the mother worked at Sunnybrook Hospital in Toronto. The Father requested a court order to suspend the mother’s access. Justice Nakonechny expressed that the mother, as a healthcare professional, was well aware of the protocols in place and knows what precautions she needs to take. The court ordered that access was to continue during the COVID-19 pandemic.
Overall, the courts remind parents that it is in a child’s best interest to continue to have as much stability and predictability as is possible during this uncertain time. Therefore, courts are urging parents to follow their orders and continue with their schedules that have been in place, while ensuring that the chil(ren) remain safe.
The courts have also turned to the legal professionals during this unprecedented time and have requested that parents use their counsel to attempt to engage in meaningful conversations. Counsel and the parents should have a focus on trying to resolve the issues through counsel instead of using the limited court resources available at this time.
April 3, 2020
Adina Schild
With the Ontario government’s aggressive rollout program to administer covid-19 vaccines, co-parents are faced with an interesting family law issue.
When Co-Parents Disagree on Covid Vaccine
August 5, 2021
Adina Schild
With the continuing spread of COVID-19 and the uncertainty surrounding it, you may have questions about your legal rights and your ability to access the courts if you have a dispute that needs to be resolved by way of litigation.
These unprecedented times have disrupted the courts as we know them. Although the regular operation of courts in Ontario has been suspended, your claim is still important and requires attention.
If you are involved in a dispute and looking for a lawyer, Hummingbird Lawyers is here to assist you. Whether it be through litigation in the courts or guiding you through a negotiated dispute settlement, the Hummingbird Litigation team has got you covered.
Please contact our Litigation Department, to arrange a consultation with an experienced Hummingbird Litigator. You can also reach a lawyer in this department by contacting info@hummingbirdlaw.com. Hummingbird Lawyers is committed to serving you during these exceptional circumstances. We look forward to assisting you soon. Together we can get through this.
see FAQ About Dispute Litigation During COVID-19.
April 23, 2020
On March 20, the Ministry of the Attorney General advised that an Order in Council was made under s. 7.1 of the Emergency Management and Civil Protection Act suspending limitation periods and procedural time periods. The suspension is retroactive to March 16, 2020.
March 20, 2020
The economic impact of COVID-19 has forced many employers in Ontario to temporarily layoff their employees. How will courts treat this situation?
Read the article: Layoff In The Times Of COVID-19 And What It Means For You
April 21, 2020
Amiri Dear
The COVID-19 pandemic has created unprecedented challenges and uncertainties for employers around the globe. To help you navigate through the challenges posed by the COVID-19 outbreak, we have answered some of the most frequently asked questions concerning the current pandemic and its effect on employment law.
Employment FAQ During COVID-19
April 8, 2020
Amiri Dear
April 8, 2020
Amiri Dear
April 8, 2020
Amiri Dear
On April 1, 2020, Federal Finance Minister announced details of the Canada Emergency Wage Subsidy (CEWS), which introduces a 75% wage subsidy for qualifying businesses, for up to 3 months, retroactive to March 15, 2020. This subsidy is intended to help businesses faced with a 30% decline in business with support to either keep their workforce on payroll. The objective is to keep these workers off of Employment Insurance (EI) Benefits and the $2,000 monthly payments under the recently announced Canada Emergency Response Benefit (CERB).
The 75% CEWS is in addition to the 10% Small Business Wage Subsidy (SBWS), which was enacted into law on March 25.
Listing of the COVID-19 programs established by the Government of Canada.
If restructuring of your workforce is required, Hummingbird lawyers are available to work with you to discuss your options, including short term or longer term layoffs, selective terminations, and other measures available to help mitigate the impact of the business downturns related to the COVID-19 pandemic.
Dianne Prupas
Dianne@hummingbirdlaw.com
April 7, 2020
Amiri Dear
Effective April 6, 2020, the Canada Emergency Response Benefit is available to people who were both employed and self-employed and who have lost their jobs as a result of COVID-19. Apply here.
April 7, 2020
We are here to help you prepare your family and business for anything, even in light of the COVID-19 pandemic. Find out more about our Emergency Business Continuity Planning service.
April 2, 2020
New filing and payment dates for individuals, corporations, trusts and charities. Remember that it is no advantage to delay your filing if the CRA owes you a refund or you are entitled to other payments from the CRA. Your delay will only result in delay of those refunds or payments.
April 2, 2020
August 28, 2020 Andrew Fortis
April 4, 2020
April 1, 2020 Andrew Fortis
July 10, 2020 Mitchell Singer
June 10, 2020
April 27, 2020
April 7, 2020 Dianne Prupas
April 3, 2020 Jonathan Kiang
The Province of Ontario has extended the emergency order allowing Wills & Powers of Attorney to be witnessed by video until December 21st, 2020. If you need these documents, but do not want to meet in person, Hummingbird Lawyers can help.
November 21, 2020
As the Province of Ontario slowly takes steps to shake off the Covid-19 induced hibernation, the Temporary Suspension of the Limitations Period is set to end on September 14, 2020, pursuant to Ont. Reg. 457/20: Limitation Periods.
But what does it all mean?
It means that the temporary suspension acted like a stopwatch. Any limitation period or period of time within which a step must have been taken in a proceeding during the temporary suspension period under the Ont. Reg. 73/20 will resume running on September 14, 2020, and the period from March 16, 2020 to September 13, 2020 will not be counted. For ex. If a step had to be completed by March 30, 2020, being 14 days after the start of the Temporary Suspension on March 16, 2020, the time to complete such a step will run out 14 days after September 14, 2020.
August 27, 2020
Ioulia Vinogradova
In Ontario, pursuant to the Section 7 of the Estates Act R.S.O 1990 c. E.21 the Application for a Certificate of appointment of Estate Trustee with or without a Will must be filed with the Superior Court of Justice in the county or district in which the deceased resided at the time of death. During COVID-19 various Courts have various procedures in place. Please contact our Estates Team to guide you through this process during COVID-19.
April 28, 2020
Ioulia Vinogradova
On April 7, 2020, the Province of Ontario allowed for virtual witnessing of Wills and Powers of Attorney during the COVID-19 emergency as long as one of the two witnesses is a lawyer or a paralegal.
On April 22, 2020, virtual witnessing of Wills and Powers of Attorney can be done in counterparts. This allows each witness and the maker of the Will and Powers of Attorney to sign a separate identical copy of the documents, which together form the complete Will and Power of Attorney.
In response to this news, we are actively working to stay current with the procedural guidelines as part of the Hummingbird Virtual Estate Planning process. To know more about our process, contact a Wills & Estates lawyer today. For your estate planning needs, fill out our Personal Intake Form For Estate Planning to get started today.
April 27, 2020
Jonathan Kiang
Safety procedures put in place in an effort to limit the spread of COVID-19 have suspended many of the day-to-day activities. However, the natural order of things, for the most part, remains. Mothers continue to birth children, the days, and with them the seasons, continue to pass, and some die. The death of a loved one is never easy. During the current unprecedented times we live in, restrictions on social interaction may make the loss of a loved additionally hard.
If you are a relative, or a friend, of someone who died and have been named as an Estate Trustee in their Will, or if you wish to be named the Estate Trustee of an Estate, the Courts continue to accept applications for a Certificate of Appointment of Estate Trustee with or without a Will during COVID-19.
Please contact our Estates Team to guide you through this process during COVID-19.
April 18, 2020
Ioulia Vinogradova
The province’s Minister of Long-Term Care said over the next 48 hours the province will be launching more “aggressive testing, screening and surveillance”. This will include limiting healthcare workers from moving between multiple sites.
April 16, 2020
Amy MacAlpine
Breaking news! Across Ontario, virtual witnessing of Wills and Powers of Attorney is allowed, as long as one of the two witnesses of your Will and Powers of Attorney is a lawyer or a paralegal.
In response to this news, we are actively working to stay current with the procedural guidelines as part of the Hummingbird Virtual Estate Planning process. To know more about our process, contact a Wills & Estates lawyer today. For your estate planning needs, fill out our Personal Intake Form For Estate Planning to get started today.
April 7, 2020
Jonathan Kiang
As the global impact of COVID-19 continues to evolve, the well-being of our clients, our employees, and the communities we serve remain our top priority. We here at Hummingbird Lawyers LLP, actively continue to monitor updates and recommendations from the World Health Organization (WHO), and provincial and federal public health agencies.
We understand that during these tumultuous times, many Canadians have questions about estate planning. In response to the high volume of requests for the preparation of wills received over the past week, we are now able to serve our clients completely remotely. Hummingbird has launched Hummingbird Virtual Estate Planning. This online service will give you the opportunity to have your Will, and Power of Attorney for Property, and Power of Attorney for Personal Care drafted and reviewed by a lawyer at Hummingbird Lawyers LLP virtually, without the requirement of attending our offices.
March 30, 2020
Jonathan Kiang
During his inaugural speech, John F. Kennedy encouraged Americans to somehow contribute to the public good. At this time of our fight against the coronavirus pandemic, the Ontario Government is encouraging everyone to maintain social distance. However, the Ontario Government has not amended the strict rule that for a Will to be valid two (2) witnesses must be in the physical presence of the Will-maker and each other at the time of signing of the Will. Join Hummingbird Lawyers in our support of the petition to Amend Ontario’s Succession Law Reform Act to allow virtual witnessing of wills.
March 30, 2020
Ioulia Vinogradova
One of the most concerning issues in family law, arising from the COVID-19 pandemic, is the anticipated sharp decline in the value of assets since the date of separation. In Ontario, married spouses equally share the wealth they have accumulated during their marriage. The wealth accumulated during the marriage by each spouse is called “net family property” (NFP). In order to calculate the NFP for each spouse, we look at the value of assets and debts, as crystallized on the date of separation. In very simple terms, and subject to some exceptions, the spouse who has a higher NFP (meaning, who has accumulated more wealth) is required to pay one-half of the difference between the parties’ respective NFPs to the spouse with a lower NFP.
Now imagine a case where the parties separated last July and they are trying to calculate the equalization payment using the value of their assets then. For jointly owned assets, both parties equally share the decline in the value of a property. However, that is not the case for solely owned assets. For instance, if the matrimonial home is the wife’s name alone, which was worth $1,000,000 in July 2019 but it is now valued at $850,000, then does that mean the husband receives one half of the value on the date of separation (that is, $500,000) or one half of the current date ($425,000)? It would seem unfair if the wife alone had to incur the loss in the value of her property, while the husband benefited from the pre-COVID valuation of the same property, wouldn’t it?
Luckily, section 5(6) of Ontario’s Family Law Act provides for unequal division of property in exceptional circumstances, such as unforeseeable fluctuations in the market after separation. However, for this section to apply, the asset owner (the wife in our example above), will have to meet a very high threshold test for an unequal division her NFP. The Ontario Court of Appeal has stated that the circumstances of the case must be so that an equal division of the net family properties would “shock the conscience of the court.” Section 5(6) was applied successfully in the case of Serra v. Serra after the 2008 market decline, which had significantly reduced the value of the husband’s textile business.
If you are currently considering a property settlement in your family law matter, make sure you consult with experts, such as evaluators, to understand the effects of the ongoing and future market fluctuation on the value of your assets. Also, speak with your family law lawyer to see if you can come up with creative solutions in how to structure a property settlement that can address your financial needs now, but also protect you from making a bad deal.
April 22, 2020
Ella Aiaseh
With the COVID-19 pandemic affecting an individual’s employment and earning ability, there has been a rise in discussions surrounding the variation of the support obligations for separated spouses who have an existing agreement or court order for child and/or spousal support. In most cases, a support payor or recipient is entitled to seek a variation to support based on a material change in circumstances. A loss of employment or a considerable decrease in income is considered a ‘material change in circumstances’ (unless expressly stated otherwise), allowing the support payor to seek a reduction in his or her monthly support obligation.
If you are a support payor who has experienced a loss of employment or a substantial decrease in income due to the COVID-19 pandemic, make sure you review your existing agreement or court order with your family law lawyer to see if a variation to the existing support payable is appropriate in your case. It will be helpful to ensure that you have all the relevant documentation regarding your loss of employment or reduction in income, as well as the documentation relating to any governmental funding you have applied for or received. Having such documentation prepared will allow your lawyer to engage in meaningful negotiations with your previous spouse (or his/her lawyer).
April 21, 2020
Ella Aiaseh
During these unprecedented and difficult times, when resources are limited and stress levels are high, your family law disputes may seem too expensive for your shrinking budget. One of the best ways to reduce the stress and resolve your disputes in a cost-efficient manner is through engaging in reasonable settlement discussions. But in order to successfully resolve your issues through settlement, you have to be prepared to make compromises on some issues and prioritize the issues that are most important to you. The first step to achieving this is educating yourself on the parameters of Ontario’s Family Law. The more you understand your rights and responsibilities in a family law dispute, the better you will be able to focus the discussions with your lawyer and the opposing party on topics that are most important to you.
The Avanti Foundation and the Law Foundation of Ontario have supported the development of an online information portal, called the Family Law Portal, assisting those who are going separation and divorce in Ontario to better understand their rights and responsibilities, the important decisions they need to make, the documents they need to collect, and how to prepare for the next steps. The Family Law Portal is a free, online, information portal available to any person and a great starting point for you to try to make sense of it all. Once you understand the issues that you are facing in your separation/divorce, then you can have more focused discussions with your lawyer and reach meaningful settlements with the opposing side. More focused discussions means less billable hours for your lawyer, and more money in your pockets.
Remember, there is more than one solution—other than, running to court—to your family law problems. The more informed you are, the more creative solutions will become clear to you. But keep in mind that the Family Law Portal is only an online information centre, and does not amount to legal advice. Each case is specific to its facts and each fact may make a difference. Once informed of your basic rights and obligations, make sure you review your options and creative solutions with a family law lawyer before entering into any agreements that you may regret later.
April 9, 2020
Ella Aiaseh
(Brampton, Guelph, Milton, Orangeville, Owen Sound, and Walkerton)
As of April 6, 2020, the court has provided additional directions on urgent matters.
All urgent hearings must be requested from the court, in letter not exceeding two pages, setting out the relief requested, why the matter is urgent, including a draft order and a confirmation that the matter can be dealt with by way of a conference, if approved.
These letters requesting an urgent hearing, are reviewed by a judge, who will determine that matter is urgent.
If not urgent, you will receive an endorsement by email. If determined to be urgent, then you will receive an endorsement, setting out the details for filing materials, timelines and other directions.
There is an electronic size limit of 10MB for material and parties have to undertake to pay all applicable court fees upon the court resuming regular operations.
Additional Matters (as of April 6, 2020):
1. Consent Motions
If you and the opposing party have reached an agreement, you can have the terms of the agreement converted into a court order by a consent motion. You have to include a consent order and the presiding judge, after reviewing the material will grant the order as requested or amended. The judge may deny to grant the order requested if there are deficiencies or due to other reasons, which will be explained in an endorsement.
2. Written Motions
If you and the opposing party agree to have certain issue(s) determined based on written materials only and without a case conference, then you can submit it electronically to the court.
A judge will review the materials and issue an endorsement/order on the motion.
3. Case Conferences
Available for one or two urgent or pressing issues identified by the parties.
The duration of the conference is limited to 30 minutes
The Case Conference briefs must be limited to 4 pages, plus limited attachments. Parties must include proof of service, identify the issues to be canvassed and provide draft orders. They must also provide at least 3 available dates and times for the hearing.
Counsel must also confirm that they have fully discussed the issues for the conference.
A judge will review the briefs and the materials and issue an endorsement by email regarding the time of and directions for the case conference.
In all of the non-urgent matter filings, parties have to keep in mind that the judges do not have access to the documents previously filed. Therefore, any relevant document must be included in the email. The electronic size limit is 10MB and the parties have to undertake to pay any applicable court fees upon the court resuming normal operations.
For more information on filing processes, please visit Ontario Courts.
April 6, 2020
Ella Aiaseh
(Barrie, Bracebridge, Cobourg, Durham, Lindsay, Newmarket, Peterborough)
As of April 6, 2020, the following matters may be heard virtually or in writing, as directed by the court.
The following matters may be heard virtually or in writing, as directed by the court:
On Consent – by way of 14B Motion, on issues regarding
April 6, 2020
Ella Aiaseh
Since their closure, the Ontario courts have been hearing urgent motions with respect to whether or not parents should be following their court ordered access during the COVID-19 pandemic. Since mid March, the Superior Court of Justice has heard multiple matters and have consistently provided the same message; the parties should be following their court ordered parenting plans at this time.
Ribeiro v. Wright was the first family law access case heard since the COVID-19 measures were put into place. In this Hamillton, Ontario case, Justice Pazaratz stated: “No matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.”
In Le v. Norris, we see this same messaging. The courts have consistently stated that a parent’s anxiety surrounding the COVID-19 crisis is not sufficient evidence to suspend an existing access order. In this case, Justice Conlan stated that the parties need to be responsible while still adhering to existing court orders. Justice Conlan then specifies that being responsible means being practical and having “some basic common sense.” Ultimately, Justice Conlan ordered that the parties must comply with the existing court ordered access “in all respects” and included a police enforcement clause to ensure that the parties complied.
This same messaging was applied to matters involving parents who are healthcare professionals. In Zee v. Quon, the mother worked at Sunnybrook Hospital in Toronto. The Father requested a court order to suspend the mother’s access. Justice Nakonechny expressed that the mother, as a healthcare professional, was well aware of the protocols in place and knows what precautions she needs to take. The court ordered that access was to continue during the COVID-19 pandemic.
Overall, the courts remind parents that it is in a child’s best interest to continue to have as much stability and predictability as is possible during this uncertain time. Therefore, courts are urging parents to follow their orders and continue with their schedules that have been in place, while ensuring that the chil(ren) remain safe.
The courts have also turned to the legal professionals during this unprecedented time and have requested that parents use their counsel to attempt to engage in meaningful conversations. Counsel and the parents should have a focus on trying to resolve the issues through counsel instead of using the limited court resources available at this time.
April 3, 2020
Adina Schild
With the Ontario government’s aggressive rollout program to administer covid-19 vaccines, co-parents are faced with an interesting family law issue.
When Co-Parents Disagree on Covid Vaccine
August 5, 2021
Adina Schild
April 23, 2020 Jonathan Barr
March 20, 2020 Jonathan Barr
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April 8, 2020 Amiri Dear
April 8, 2020 Amiri Dear
April 8, 2020 Amiri Dear
April 7, 2020 Amiri Dear
April 7, 2020 Mitchell Singer
April 2, 2020 Mitchell Singer
April 2, 2020 Mitchell Singer
Thank you for reading. Your health is important to us. At Hummingbird Lawyers LLP, we are committed to the quarantine and social distancing measures currently in place. We continue to be fully operational during this time as our entire firm is able to work remotely (including phone, fax, and email). Our staff have been working around the clock to ensure Canadians have access to our legal services from the comfort of their own homes. Please feel free to contact us if you have any questions, or if you need assistance with your legal matter.
Disclaimer – The information provided herein is for general informational and educational purposes only. It is not intended and should not be construed to constitute legal advice. The information contained herein may not be applicable in all situations and may not, after the date of its presentation, even reflect the most current authority. Nothing contained herein should be relied or acted upon without the benefit of legal advice based upon the particular facts and circumstances presented, and nothing herein should be construed otherwise.