Canada: The Private Wealth & Private Client Review, 7th Edition, Chapter: "Canada" (Law Business Research, September 2018)

I INTRODUCTION

i The current Canadian wealth situation

The current Canadian political, economic and social environment in 2018 is a mix of good and bad news. The only constant is change, which is moving at a progressively fast pace, with unpredictable and often unnerving results, and there is a general sense of apprehension about the future. The good news, however, is that the economy is generally stable, markets are good, corporate profits are strong and unemployment is at one of its lowest levels ever.

For the wealth management industry, times have never been better. An increasing percentage of the big six banks' revenues are now derived from wealth management, and the sector is experiencing strong income growth. Wealth management has an increasingly high profile among Canadians. One can barely surf the web, pick up a newspaper, watch TV or walk past an electronic billboard without seeing some aspect of wealth management services featured. More money than ever is being pumped into the area by financial institutions and select professional firms where consolidation is occurring.

On the legislative side, some aspects of the US tax reform have come as good news for Canadians with US connections. The increase in the US estate tax exclusion amount to US$11.2 million for 2018, indexed to inflation, means that exposure to US estate tax will impact only the wealthiest. However, this good news could be short lived owing to a sunset provision that provides that, unless there is further legislative action, after 31 December 2025 the exemption will revert back to the 2017 amount.

The Canadian government committed a major policy blunder in July 2017 when it introduced proposals and legislation aimed at what is termed unfair tax avoidance by business owners and shareholders of private corporations, including deferring tax and splitting income among family members, but backed down from the most egregious measures, much of which were ill-conceived and unworkable. One could say this climbdown was good news for the private wealth industry, but it has left a bad taste, and there are concerns as to what may still lie ahead.

More good news is that house prices are cooling and becoming more stable.

The bad news is that, at the time of writing, Canada's unrivalled and long-standing good relationship with its largest trading partner is under attack and in jeopardy as a result of President Trump's latest actions and pronouncements. If the North American Free Trade Agreement is terminated or severely compromised, resulting in a decline in Canada's real domestic product, an increase in consumer prices, and job losses, it will be harmful to the Canadian economy. How can any business or individual expect to manage this risk?

Meanwhile, government and consumer debt levels are at an all-time high. Most unsettling is that a rift has begun to emerge in Canadian society, as millennials believe they cannot aspire to the economic affluence of their parents, and middle-earners are under increasing pressure to make ends meet. Further, some perceived the government's actions as divisive when it proposed tax changes targeting business owners and shareholders of private corporations who the government claimed were not paying their fair share of tax and were abusing the system. But this approach backfired, as most businesses in Canada are small and are the largest component and backbone of the economy, who would have borne the brunt of the proposals, and are made up of middle-earners who have relied on an established tax policy of over 40 years to sustain their businesses, resulting in a policy U-turn. Nevertheless, as a result, a substantial blow has been dealt to every entrepreneurial business owner who now finds himself or herself in an environment where the entrepreneurial spirit is no longer hallowed, but instead treated punitively by officials in charge of government policy. It is certainly not a supportive and conducive environment to grow our economy and reward those who take risks.

Evidently, there is a sense of discordance and unease regarding these developments; but given the volatility and uncertainty of the world in 2018, there is equally potential for new opportunities arising.

ii Key factors in respect of private clients

Canada's constitutional system is a federal one, with a clear division of powers between different levels of government. Its primary legal heritage for all provinces and territories, with the exception of Quebec, is based on English common law; Quebec's is based on civil law.

From the private client perspective, Canada offers the stability of a highly developed legal and court system and charter-based human rights protections. Property law, including succession, is a matter of provincial jurisdiction. Many modern and innovative concepts affecting private clients have been pioneered or progressed ahead of other jurisdictions in Canadian law, including equalisation of property between spouses on marital breakdown and death in several Canadian provinces recognising marriage as an equal economic partnership, recognition of common law spouses' and same-sex spouses' property and support rights, and same-sex marriage. Many Canadian jurisdictions have modern laws governing incapacity and substitute

decision-making to take into account the need for a modern infrastructure to deal with an increasingly ageing population. Canada's multiculturalism and relatively 'open-door' immigration policy, which is required to maintain positive population growth, expand the Canadian economy and is increasingly geared to attracting more entrepreneurs and skilled workers, have together created and contributed to a dynamic, sophisticated, diverse and innovative Canadian culture.

II TAX

i Personal taxation

Federal and provincial income tax

Canada taxes Canadian residents on their worldwide income from all sources, and non-residents on certain Canadian-source income, subject to international tax treaties. Income for Canadian tax purposes includes income from employment, business, property, 50 per cent of capital gains, and various other income sources, less certain deductions.

Canada is a federal state consisting of 10 provinces and three territories. The provinces and territories also tax income generally on the same basis as the federal government, except for Quebec, and increased federal tax applies to certain income not earned in a province or territory. Canadian tax is levied at graduated rates of up to approximately 54 per cent in combined federal and provincial rates on taxable income, less applicable tax credits.

Canada taxes non-residents on income earned in Canada, notably income from business or employment in Canada, and from certain taxable Canadian property, including Canadian real estate. A withholding tax of 25 per cent is deducted from certain income payable to non-residents, subject to international tax treaties that reduce the applicable rates.

Capital gains regime

Unlike most jurisdictions, Canada has no gift or inheritance tax. Instead, it levies taxes on capital gains. As of 2018, 50 per cent of capital gains are included in income upon actual disposition or deemed disposition. There is an exemption for capital gains on a principal residence and a lifetime exemption for capital gains on qualified small business corporation shares (C$848,252 in 2018) and on qualified farm or fishing property (C$1 million in 2018).

The basic tax unit is the individual. Limited opportunities exist for income splitting, including through the use of trusts. Tax on capital gains may be deferred on certain transfers of property, for example, between spouses, or on rollovers into private corporations in exchange for shares.

ii Developments relating to personal taxation

Provincial tax brackets for high earners

The combined provincial and federal tax rates for high earners in 2018 range from 44.5 per cent in Nunavut to 54 per cent in Nova Scotia. The highest tax rate in 2018 in Ontario is 53.53 per cent. In 2015, Alberta introduced graduated tax rates for taxpayers. Prior to the new rates, all Albertans paid tax based on a flat provincial tax rate of 10 per cent. As of 1 October 2015, the highest combined provincial and federal tax rate for Albertans has been 48 per cent.

2017 tax amendments in planning with private corporations

As part of the 2017 federal budget's commitment to address what it termed unfair tax-planning strategies using private corporations, the federal government released a consultation paper called 'Tax Planning Using Private Corporations' and proposed legislation that addressed advantages that were not available to most Canadians, such as income 'sprinkling' to lower-tax rate family members using private corporations; accumulating earnings that had been taxed at a low tax rate inside private corporations; multiplying the lifetime capital gains exemption; and converting a private corporation's regular income into capital gains to take advantage of the lower rate on capital gains. Owing to a strong reaction from Canadian small businesses and the professional community, the government significantly scaled back its 2017 proposals, enacting only the income sprinkling and passive income proposals, but not the capital gains proposals, which would have made it more difficult for business owners and farmers to pass on their businesses to their children.

Revised federal legislation on the taxation of trusts

Certain estates and testamentary trusts are taxed at graduated rates applicable to individuals, while trusts established during a person's lifetime are generally taxed at the top of marginal tax rates applicable to individuals. In 2016, graduated rates for certain estates and testamentary trusts were eliminated. Now, the top marginal rate is applied to testamentary trusts and certain estates. However, graduated rates will continue to be available to 'graduated rate estates' for 36 months and to certain testamentary trusts having disabled beneficiaries who are eligible for the federal disability tax credit. In addition, the taxation year end for testamentary trusts is now 31 December and testamentary trusts are required to make instalment payments of income tax.

Residence of trusts for tax purposes

The Supreme Court of Canada in 2012 clarified the law on the factual tax residence of a trust in Fundy Settlement v. Canada.2 The Supreme Court of Canada held that the residence of a trust is where the central management and control of the trust occurs, a significant change from the former focus on a trustee's residence. Discovery Trust v. Canada3 was the first decision to apply the test that was articulated in Fundy Settlement. In Discovery Trust, the court held that the beneficiaries' involvement in the administration of the trust did not result in the trust being resident in the province in which the beneficiaries resided, as the trustee still made all decisions with respect to the administration of the trust. Instead, the court held that the trust was resident in the province in which the trustee resided. The CRA's position in determining the location of the central management and where control of a trust takes place includes a review of whether the control rests with the trustee or someone else.4

In addition to factual residence, trusts may also be subject to statutory deemed residence rules for Canadian tax purposes. Trusts that are not factually resident in Canada may be deemed resident in Canada for certain tax purposes, including computing the trust's income. Deemed residence may apply to a trust if it has a Canadian-resident contributor or beneficiary.

New principal residence rules

In the Canadian system, capital gains are subject to taxation, and arise on the disposition of capital property. The capital gain is the difference between the property's adjusted cost base plus costs of disposal, and the proceeds of disposition. The adjusted cost is the actual cost of the property, subject to certain adjustments. Proceeds of disposition are, generally, the actual proceeds, but are subject to certain deeming provisions that will deem the proceeds to be equal to the fair market value of the property in respect of dispositions that are not at arm's length. A property is exempt from taxation on capital gains in the years that it is designated a principal residence.

As of 3 October 2016, both individuals and trusts must report the disposition of a principal residence and make a principal residence designation in the prescribed form and manner. The period in which the Canada Revenue Agency (CRA) can reassess beyond the normal reassessment period is indefinitely extended if the disposition of a property is not reported and a penalty applies for late filing. For dispositions on or after 3 October 2016, an individual who is a non-resident of Canada in the year of acquisition of a principal residence loses the bonus exemption year when calculating the principal residence exemption.

As of 2016, only certain eligible trusts may designate a property as a principal residence for any year of ownership after 2016. Eligible trusts include qualified disability trusts, alter ego trusts, spousal or common law partner trusts, joint spousal and joint common law partner trusts, and certain trusts for the exclusive benefit of the settlor during the settlor's lifetime. Eligible trusts also include 'orphan' trusts where: the settlor died before the start of the year; the eligible beneficiary is a minor child whose parents died before the start of the year and is a minor child of the settlor; and at least one beneficiary of the trust is a resident of Canada during the year and is a specified beneficiary of the trust for the year.

Non-resident speculation tax

To date, two Canadian provinces – Ontario and British Columbia – have enacted additional land transfer taxes that apply to foreign buyers. As of 21 April 2017, the Ontario government introduced a 15 per cent tax on the value of the consideration when a residential property in the Greater Golden Horseshoe area is purchased or acquired by individuals who are not citizens or permanent residents of Canada, foreign corporations, or taxable trustees of trusts involving foreign individual- or corporate trustees or beneficiaries. Residential property is defined as land that contains between one and six single family residences. The new Toronto non-resident speculation tax applies in addition to the generally applicable land transfer taxes payable on Toronto properties at rates of up to 5 per cent (2.5 per cent being the Ontario land transfer tax and an additional 2.5 per cent being the Toronto land transfer tax).

As of 2 August 2016, British Columbia enacted a similar 15 per cent property transfer tax payable by foreign individuals, corporations or taxable trustees (the Vancouver tax) in addition to the general property transfer tax of approximately 2.5 per cent on transfers of residential property located in the Metro Vancouver Regional District (the Vancouver District). The 2018 British Columbia budget introduced an increase to the Vancouver tax to 20 per cent, effective as of 21 February 2018, and a new annual speculation property tax was proposed, which will apply to Vancouver District properties at rates of up to 2 per cent of property value per year in addition to the general property tax that applies to all owners.

General anti-avoidance rule in respect of income tax

The Income Tax Act (the Tax Act) contains a general anti-avoidance rule (GAAR), which may be applied to deny a tax benefit otherwise available under the Tax Act where certain conditions are met. In considering whether the GAAR applies, a court will generally consider whether there was a tax benefit, whether the transaction (or series of transactions) giving rise to the tax benefit was an 'avoidance transaction' and whether the avoidance transaction giving rise to the tax benefit was abusive.

Whistle-blower rules, audit initiatives and compliance measures

The CRA has launched the Offshore Tax Informant Program, under which the CRA will enter into a contract to provide financial compensation to individuals who provide information that leads to the assessment and collection of additional federal taxes in excess of C$100,000, provided all recourse rights associated with the assessment have expired and where the non-compliant activity involves property located outside Canada or certain other foreign elements. Banks and other financial intermediaries are required to report international electronic funds transfers of C$10,000 and over, to the CRA. Such transfers are currently reported to Canada's Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). The CRA's Related Party Initiative is ongoing, under which individuals, including high net worth individuals (generally, with over C$50 million) or those with complex planning using many related entities, have been asked to provide detailed information and supporting documents about Canadian and foreign interests. Thresholds relating to value and complexity have been relaxed, and individuals not under audit are also being asked for such information. An aggressive tax planning reporting regime generally requires advisers to report to the CRA information concerning certain transactions on Form RC312 by 30 June of the following year. Reportable transactions or a reportable series of transactions will generally include an avoidance transaction or series of transactions for the purposes of GAAR if they feature two of the following: contingent fees, confidentiality protection or contractual protection. Where the form is not filed, the denial of tax benefits and possible penalties may result.

iii Cross-border structuring

Immigration to Canada

Canada relies heavily on immigration and offers certain tax concessions to immigrants. These same concessions, along with the lack of gift and inheritance tax, make Canada an attractive destination. Upon immigration to Canada, an individual receives a 'step up' in the tax cost of his or her capital property (excluding taxable Canadian property), which eliminates Canadian tax liability for capital gains accrued to that point. In some cases, it may be possible to transfer a foreign-registered pension plan into a Canadian-registered retirement savings plan on a tax-free basis.

Non-resident trusts and immigration trusts

Certain non-resident trusts established by non-resident settlors, provided various conditions are met, may be exempt from Canadian taxes and can distribute trust capital to Canadian-resident beneficiaries tax-free, which provides tax planning opportunities where a non-resident's trust is situated in a low-tax jurisdiction. However, the opportunities for trust planning with non-resident trusts have been significantly curtailed by the revised Section 94 of the Tax Act, which deems certain trusts with Canadian-resident contributors or Canadian-resident beneficiaries to be Canadian resident and taxable on their worldwide income. Where a trust is deemed to be Canadian resident, Canadian-resident contributors and beneficiaries may be liable for the trust's Canadian income tax, along with the trust itself.

Previously, an immigration trust could be set up to benefit an immigrant to Canada and his or her family, and the income and capital gains in the immigration trust could accrue tax-free for up to 60 months following immigration. If the trust was settled in a foreign jurisdiction (including a low-tax offshore jurisdiction) with foreign trustees who held the foreign investment assets, there could be significant tax savings depending on the applicable tax rates. However, this planning opportunity was unexpectedly eliminated as a result of the 2014 federal budget. Immigration trusts, including those established prior to the legislative changes, are now subject to Canadian tax on their worldwide income, and the 60-month exemption from the deemed residence rule is eliminated.

Emigration from Canada

A taxpayer emigrating from Canada must pay a departure tax, which taxes gains on his or her property accrued during his or her Canadian residency, subject to exceptions including for certain Canadian situs property and retirement plans. Payment of the departure tax may be deferred upon providing security to the CRA.

Tax treaties

Canada is party to many bilateral tax treaties, which in part aim to prevent double taxation of income. Among other benefits, Canada's tax treaties generally include tiebreaker rules for determining tax residency for treaty purposes and reduce the amount of withholding tax otherwise payable by taxpayers who are entitled to benefit under such treaties. Often, the withholding tax is reduced to 15 per cent from 25 per cent and in certain cases to zero per cent. Owing, however, to variations in the internal taxation laws of treaty nations, there can be mismatches in tax credits and timing that are not addressed in the treaties. In 2014, Canada ratified an intergovernmental agreement (IGA) relating to the US Foreign Account Tax Compliance Act (FATCA), a US law that imposes strict reporting requirements to the US taxing authority, including on financial institutions located in Canada. Canada has also agreed to implement the Organisation for Economic Co-operation and Development (OECD)'s Common Reporting Standard (CRS), which is based on FATCA. As of 1 July 2017, financial institutions located in Canada are subject to the CRS and are required to provide the CRA with certain information pertaining to accounts and account holders.

Foreign investment entity and foreign trust rules

Foreign trust rules designed to more effectively tax Canadian residents' passive investment, including income arising through non-resident trusts, have been enacted, following numerous amendments to draft legislation over a protracted period. The non-resident trust rules deem a trust to be resident in Canada if there is a Canadian-resident contributor, broadly defined, or a Canadian-resident beneficiary, and require tax to be withheld on distributions from trusts deemed Canadian resident, subject to exceptions. An election may be made to treat a portion of the trust as non-resident that will not generally be taxable in Canada. New provisions for taxing offshore investment funds have also been enacted, along with transitional provisions for those who filed under proposed foreign investment entity rules that were never enacted. The 2018 federal budget proposed additional reporting requirements for certain non-resident trusts and draft legislation was released in August 2018. The proposed requirement is for these trusts to annually report the identities of all their settlors, trustees, beneficiaries and all persons who have the ability (either under the trust terms or as a result of related agreements) to exercise control over trustees' decisions regarding the income or capital of the trust, such as protectors of a trust. The proposed reporting requirements will apply to 2021 and subsequent taxation years.

Canadian taxpayers holding specified foreign property outside Canada with a cost amount of C$100,000 or more, are required to provide more detailed information about such property on a revised Form T1135, foreign income verification statement, including names of the countries and institutions where assets are held, foreign income earned on the assets, and a maximum cost amount of the assets in the year. If Form T1135 is filed late or contains certain errors or omissions, the normal reassessment period is extended for three years, and severe penalties apply for failure to file.

iv Regulatory issues

Regulation of banking and related industries

A significant portion of Canada's private wealth services are highly concentrated in the hands of six major Canadian national banks. In 2017, Bloomberg Markets magazine ranked four Canadian banks among the world's top-10 strongest banks with US$100 billion or more of assets. No other country dominated the list as Canada did. Banking is federally regulated by the Office of the Superintendent of Financial Institutions Canada, while the related investment industry, trust companies and insurance firms are regulated both federally and provincially. Canada's major banks are strongly capitalised and tend to have relatively conservative lending policies compared to other banking institutions.

In 1986, the federal government began to eliminate the four pillars of Canadian finance: Canada's traditional regulatory separation between banks, trust companies, insurance companies and investment companies. Numerous acquisitions of investment firms and trust companies by the six largest Canadian banks followed. In 1998, the proposed merger of two of the largest major Canadian banks was rejected by the federal government. In the past decade, Canada's major banks have expanded significantly into the United States. Canada's major banks offer an increasing array of services, including daily banking, investment services, financial planning and insurance, and wealth management, which tend to be fairly uniform among the banks.

For Canada, deregulation resulted in a flurry of mergers and acquisitions in the 1990s, leading to consolidation and the three largest insurance companies controlling about two-thirds of the domestic market.

v Issues affecting holders of active business interests

Corporate taxation

Canada's tax environment includes low corporate taxes levied at flat rates. The rates have been declining for small businesses' active business income between 2007 and 2017. The combined net federal and provincial corporate tax rates applicable to general corporations' active business income in 2018 range between 10.5 and 31 per cent, and a similar rate applies to income that is not earned in a province.

Preferential tax treatment is offered to a 'small business corporation', which benefits from a reduced combined federal and provincial tax rate of between 10 and 22 per cent on the first C$450,000 to C$600,000 of its active business income. A small business corporation is a Canadian-controlled private corporation (CCPC) carrying on active business in Canada. The small business income limit is reduced on a straight-line basis for CCPCs that alone or as members of an associated group have taxable capital employed in Canada of between C$10 million and C$15 million in the previous year. Taxable capital is generally comprised of the corporation's retained earnings, surpluses and advances.

The 2018 federal budget proposed an additional means to reduce the small business deduction in the case of corporations that have more than C$50,000 per year of passive investment income. This proposal follows the 2017 taxation changes that target corporations that accumulate income that had benefited from the low small business tax rate. The 2018 federal budget proposed to reduce the small business limit for CCPCs and associated corporations on a straight-line basis for CCPCs that earn between C$50,000 and C$150,000 of investment income such that the small business limit would be completely eliminated where a corporation earns C$150,000 of investment income per year. The new business limit reduction is expected to operate in reference to the business limit reduction for excess taxable capital, the effective reduction being the greater of the two. For this purpose, the 2018 federal budget proposed a definition of investment income or 'adjusted aggregate investment income' (AAII). Generally, AAII will exclude taxable capital gains from the sale of active investments and investment income that is incidental to the business. These exclusions are included for the purpose of protecting investment interests in Canadian innovation industry.

Shares of a small business corporation are eligible for a lifetime capital gains exemption of C$800,000 in total, indexed for inflation from 2014 (C$848,252 in 2018), as are certain qualified farm and fishing properties (capital gains exemption being C$1 million in 2018).

Investment income earned in a CCPC is taxed at very high rates. For instance, in 2018, CCPCs in Nova Scotia and Prince Edward Island will pay income taxes on their investment income at the rate of 54.67 per cent, which is higher than the highest individual tax rate in those same provinces (54 per cent and 51.37 per cent, respectively). In other provinces, CCPCs' investment income is taxed at rates ranging between 50.67 per cent and 53.67 per cent. General corporations (non-CCPCs), who do not benefit from the small business deduction, pay taxes on their investment income at lower rates – at combined federal and provincial rates of up to 31 per cent in 2018.

For extracting corporate income by way of dividends, a gross-up, dividend tax credit (an enhanced tax credit in the case of dividends funded by the corporation's active business income that did not benefit from the small business tax rate) and a corporate refundable tax mechanism (in the case of corporations that earn investment income) is provided to avoid double taxation of income earned in the corporation that is subsequently paid to its individual shareholders, who are taxed at their marginal tax rates.

The 2017 tax amendments made significant changes to shareholder taxation. The changes make dividends received by individual shareholders taxable at the top marginal rates (these provisions being called a 'tax on split income' (TOSI)), unless the shareholders receiving the dividends can show substantial labour or capital contributions to the operations of the business of the corporation. For example, TOSI will not apply to the business owner's spouse aged 65 or older; shareholders over the age of 18 who make a substantial labour contribution to the corporation's business of at least 20 hours per week; and shareholders over the age of 25 who own 10 per cent or more interest in the corporation that earns less than 90 per cent of its income from the provision of services. Those shareholders who do not meet these 'bright line' tests will face a 'reasonableness' test review by the CRA.

There are generally two kinds of dividends that can be paid to individual shareholders of CCPCs: eligible and non-eligible dividends. Generally, eligible dividends are funded by the corporation's income that did not benefit from the small business tax rate. Eligible and non-eligible dividends are taxed at different rates in the hands of individual shareholders. For instance, in 2018 in Ontario, the highest individual tax rate on eligible dividends is about 39 per cent and that on non-eligible dividends is approximately 47 per cent. As part of the current tax integration rules, when a corporation pays a dividend to its shareholders, it may be able to receive a tax refund that is based on the corporation's notional refundable dividend tax on hand (RDTOH) account, which is calculated in reference to the corporation's investment income. The 2018 federal budget proposed to limit CCPCs' access to the RDTOH refund to the payment of non-eligible dividends, with an exception for that portion of the RDTOH that arises from the corporation's eligible portfolio income, which is proposed in the budget to be calculated as a new 'eligible RDTOH'. An existing RDTOH account will be redefined as 'non-eligible RDTOH' and it is proposed that companies will only be able to obtain refunds from the non-eligible RDTOH account upon the payment of non-eligible dividends, and a full refund from the non-eligible RDTOH account will need to be issued before a refund from the eligible RDTOH account can be accessed.

A tax-deferred transfer or rollover of certain eligible property to a taxable Canadian corporation for consideration, which must include shares of the corporation, is available, subject to certain conditions. The corporation may retain the shareholder's tax cost of the property or may elect a higher tax cost, within limits. Among other results, the corporation then assumes the tax liability relating to gains on the property, the payment of which is deferred to a later date.

Goods and services tax, provincial sales tax and harmonised sales tax

Federally, Canada levies a 5 per cent supply-side tax on most services and goods, including those made in Canada and imported, and certain property. The goods and services tax (GST) applies at all stages of production, subject to an input tax credit for tax paid at an earlier stage, and businesses are responsible for collecting and remitting the tax. The provinces and territories levy their own sales tax in addition to the GST. Five provinces have harmonised the GST with the provincial sales tax and this is known as harmonised sales tax. Combined, these taxes range from 5 per cent (in Alberta, Northwest Territories, Nunavut and Yukon) to 15 per cent (New Brunswick, Newfoundland and Labrador, Nova Scotia, and Prince Edward Island).

To read this Chapter in full, please click here.

Footnotes

1. Margaret R O'Sullivan is principal and Birute Luksenaite and Emma Hamilton are associate lawyers at O'Sullivan Estate Lawyers LLP.

2. Fundy Settlement v. Canada, 2012 SCC 14, [2012] 1 SCR 520.

3. Discovery Trust v. Canada, 2015 NLTD(G)86.

4. CRA, Income Tax Folio S6-F1-C1, Residence of a Trust or Estate, 24 November 2015.

Originally published by Law Business Research Ltd., September 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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