Prospective Canadian immigrants must know exactly what to do after they receive an Invitation to Apply through Express Entry for permanent residence in Canada
Express Entry has long been a top immigration pathway for foreign nationals looking to come to Canada.
The popularity of this immigration pathway makes it crucial that people who receive an Invitation to Apply (ITA) know exactly what to do when completing their online application for Canadian permanent residence (PR).
In fact, Canada is aiming to welcome 305,900 immigrants between 2023 and 2025 through the Express Entry application management system, which manages immigration applications made through three programs: the Canadian Experience Class (CEC), the Federal Skilled Workers Program (FSWP) and the Federal Skilled Trades Program (FSTP).
Note: The total target of 305,900 immigrants over the next three years trails only Canada’s Provincial Nominee Program (PNP) target according to Canada’s latest Immigration Levels Plan (2023-2025)
Now that a basic understanding of Express Entry has been established, it is important that prospective Canadian immigrants understand the consequences of an incomplete Express Entry PR application and learn what they can do to ensure they do not make this mistake.
Consequences of an incomplete Express Entry application
If Immigration, Refugees and Citizenship Canada (IRCC) receives an incomplete application for PR in Canada, they will return the file to the applicant.
Upon receipt of a returned application, the applicant will need to completely restart their Express Entry journey. This is because IRCC’s policy dictates that Canadian immigration’s governing body will, under no circumstances, accept the same application back after it was returned due to incompletion.
Therefore, applicants who receive a returned application because it was incomplete must submit a new profile with IRCC to re-enter the Express Entry pool and hope that they get invited to apply for Canadian PR again.
In other words, losing out on a first opportunity to apply for Canadian PR (due to the submission of an incomplete application) after receiving an ITA could be detrimental to an immigrant’s future in this country. This is because the inherent unpredictability of Express Entry draws – which currently prioritize candidates based on often-fluctuating Comprehensive Ranking System (CRS) scores makes it hard for prospective immigrants to get a “second chance” at an ITA should they need to submit a completely new Express Entry profile after their first application was returned incomplete – www.cicnews.com
Insolvency filings in Canada nearing pre-pandemic
levels, bankruptcy office says
November 2022 saw the highest number of Canadian insolvencies since March 2020
The number of Canadians filing for insolvency is approaching pre-pandemic levels, according to numbers from the federal Office of the Superintendent of Bankruptcy.
Insolvency rates dropped during the start of the COVID-19 pandemic, but Michelle Statz, a Saskatchewan-based licensed insolvency trustee with Bromwich+Smith, says that November 2022 saw the highest number of insolvencies since March 2020, the month that saw COVID-19 lockdowns and the announcement of the initial Canada Emergency Response Benefit (CERB).
Statz says it’s the first time insolvency numbers have approached pre-pandemic levels, adding that it’s not entirely unexpected given high inflation, rising interest rates and the end of government benefits such as CERB.
“It’s not necessarily surprising to us in this industry,” she said, noting rising household consumer debt levels. “We’ve been somewhat expecting this.”
Numbers from the bankruptcy office show there were 9,784 insolvencies across Canada in November, 17.5 per cent higher than in November 2021.
Among the provinces feeling the pinch are British Columbia and Ontario, which saw year-over-year rises in insolvencies of 32.5 per cent and 23.9 per cent, respectively.
“I think there’s a general theme across the country with cost of living, real estate values,” Statz said. “We know the more expensive places to live in Canada are B.C. and Ontario, so we do see numbers rising there.”
Insolvencies can take the form of bankruptcy, where a borrower gets their debt wiped out but at the cost of losing any of their assets – and also finds it next to impossible to borrow in the future. Or they can be a proposal to creditors, where the borrower agrees to pay back a portion of what they owe, with the creditor’s OK.
The COVID-19 pandemic, Statz says, changed the financial landscape of many Canadians facing the prospect of unemployment, career changes, and health challenges. On top of that, support programs in place during the pandemic may no longer be around.
“It’s not something that happens overnight in this industry,” she says. “It tends to take time for people to get to that point where they feel like they need to file.”
More financial headwinds may be in store.
Tony Stillo, director of Canada Economics at Oxford Economics, wrote in a note to clients that Canada has likely entered a moderate recession that will last for much of 2023.
“Prevailing household debt and housing imbalances will mix with pandemic and geopolitical forces to make Canada’s recession deeper than most advanced economies,” Stillo wrote.
Statz says people who are struggling financially are best served by seeking help sooner rather than later, no matter how difficult that may be.
“People don’t necessarily like to talk about debt,” she said. “There’s still that stigma out there … You don’t want to put it aside. You don’t want to forget about it. You want to deal with it head-on.”
-www.cbc.ca/news
Henson Trust
A Henson Trust, also known as a discretionary trust, is structured to protect the assets of a person living with a disability, as well as their right to collect government benefits and entitlements such as The Ontario Disability Support Program.
When building your long term financial plan it is very important to consider whether a Henson Trust should be a component of your estate plan.
Setting Up a Henson Trust
- A Henson Trust is most often set up in a person’s will.
- When setting up a Henson Trust it is important to consider the trustees you appoint. The Trustee is given the responsibility of handling the assets that have been left in the trust for your son or daughter. The Trustee(s) responsibilities can extend over a long period of time and end when the trust is terminated.
Factors When Considering Your Trustee
Know the needs of the beneficiary
- Someone you trust
- Someone of similar age in long term
- Someone who has time to manage the trust
- Someone who understands Trustee Act and ODSP regulations
- Someone with basic financial management and investment knowledge
Trustees’ Responsibilities When Managing a Henson Trust
- Use their discretion in releasing funds from the trust
- Manage, and invest the assets of the trust
- Maintain records of transactions in the trust
- Oversee the preparation of Tax Returns for the trust
- Maintain real property owned by the trust
- Act as keeper of your son or daughter’s well-being
- Act within the ODSP regulations and the Trust Act
Using Henson Trust Funds
- A person can receive more than the $10,000 in a 12 month period but if they did, some of the excess would be deducted from the ODSP amount. In some circumstances, it may be appropriate to give up some of the ODSP benefits in favour of receiving more than the $10,000.
- The beneficiary can receive additional funds over $ 10,000 for disability related costs (support workers, therapy, equipment, etc.)
- The use of funds of the Henson Trust will be at the discretion of the trustee. They are the only people who can decide how the funds will be used for the person with disability. This is why it is critical to consider who you are appointing as trustees.
Beware: Decisions raise major new weaknesses for
commercial contracts
The entire agreement clause
An “entire agreement clause” is a very common provision in real estate contracts and is almost always found in instruments like purchase-and-sale agreements, commitment letters, commercial leases and development agreements. Essentially, an entire agreement clause states that there are no agreements between the parties outside of the bounds of the contract. This means the contract itself is the only instrument that governs the relationship between the parties and none of the parties to the contract may rely on any other representations that were supposedly made before (or after) the contract is executed.
For instance, two parties sign an agreement of purchase and sale for a commercial property with a set closing date; then, on the eve of closing the buyer refuses to complete the deal on the basis the seller made some representations about the property before the agreement was signed, which turned out to be untrue.
In such cases, the seller could rely on the entire agreement clause in the purchase-and-sale agreement to assert that the buyer is precluded from relying on any prior representations and force them to close the deal.
Courts have generally shown plenty of deference to entire agreement clauses. After all, the point of them is to give finality to a contract and prevent a party from escaping its obligations by relying on representations that may or may not have been made before the contract was executed.
Fraudulent misrepresentation defence
However, two recent decisions from Ontario’s highest court have shown there are now ways to get around entire agreement clauses, which could pave the way to a lot of litigation.
In 10443204 Canada Inc. v. 2701835 Ontario Inc., the Ontario Court of Appeal overturned a summary judgment decision on the basis that an entire agreement clause in an agreement of purchase and sale will not preclude a defence of fraudulent misrepresentation. Please see my previous column on the motion judge’s decision.
That matter involved a dispute over the purchase of a business, which was listed for sale on Multiple Listing Services (MLS). The buyer and seller met to discuss the business and the buyer claimed the seller alleged it was profitable and made a certain amount of gross income per month.
In reliance on those representations, an offer was made to purchase the business.
When the transaction closed, the buyer paid the purchase price through an initial lump-sum payment and agreed to a vendor- take-back mortgage (VTB). The buyer also gave the seller a promissory note and personal guarantee for the remainder of the purchase price.
The buyer then discovered the monthly income generated by the business was significantly less than the amounts represented by the seller.
The buyer alleged the seller fraudulently misrepresented the business during their first meeting and immediately defaulted under the VTB payments. The seller then sued for the unpaid amounts owing under the VTB, the promissory note and the personal guarantee, and was successful.
The motion judge held that, based on the entire agreement clause in the contract, any representations made by the vendor prior to the contract were of no force or effect. The motion judge also held the buyer’s failure to conduct its own due diligence before executing the contract prevented it from later asserting that it relied on the vendor’s misrepresentations.
The Ontario Court of Appeal overturned the motion judge’s decision and returned the matter to trial. The court held that: (a) an entire agreement clause is not a complete defence to a fraudulent misrepresentation claim; and (b) the buyer’s failure to conduct its own due diligence did not, in itself, preclude a fraudulent misrepresentation defence.
TOP 10 Differences Between How Marriages and Common- Law Partnerships are Treated During Separation
1.EQUALIZATION
Equalization of Net Family Property is the process of sharing the profits and debts of a marriage. This means that each partner is entitled to one half of the value of property accumulated during the marriage. This also applies to debts.
a. Common Law: There is no automatic right for common law partners to share property. This means that if your partner purchased a property during your relationship and it tripled in value by the time you separate – well you are not automatically entitled to split the profit.
b.Marriage: In contrast, if your married spouse purchases a $400,000.00 home during your marriage and it triples in value by the time you separate – well the profit is pooled into the net family property which is later shared by the parties.
2.SPOUSAL SUPPORT
The primary purposes of spousal support, sometimes referred to as “alimony” or “maintenance”, are (i) to compensate a souse who sacrifices his or her ability to earn income during the marriage; (ii) to compensate a spouse for the ongoing care of children, in addition to any child support obligation; and (iii) to reduce the unfair financial effects of a divorce or separation on a lower income-earning spouse.
a. Common Law: For the purposes of support, a common law partner can be considered a spouse only if you and your partner have cohabited for three years OR if you and your partner live in a relationship of permanence and have a child together. Cohabitation must be continuous to be considered a spouse for support purposes.
b.Marriage: Similarly, married spouses are eligible for spousal support upon the breakdown of marriage. The entitlement and amount of spousal support depend on several factors such as: your respective incomes, age, standard of living when together, and health (just to name a few).
3.WILL & SUCCESSION
Generally, upon the death of a spouse/partner, the surviving spouse/partner may be eligible for inheritance via intestate succession rights or testate succession rights.
a. Common Law: A common law partner is not automatically entitled to inherit the estate of their deceased partner. In the absence of a valid will, the surviving partner is not entitled to any inheritance (testate rights).
b.Marriage: In contrast, a married spouse is automatically entitled to equalization of net family property after their spouse has deceased. The spouse will have entitlement without a will authorizing same. The surviving spouse can also choose to receive inheritance via a valid will instead, if the inheritance left in the will is much greater.
4.FAMILY HOME/MATRIMONIAL HOME
A matrimonial home is defined as every property in which a person has an interest and that is ordinarily occupied by the person and his or her spouse as their family residence during the marriage.
a.Common Law: Common law partners have no inherit special rights. To show interest in a family home as a common law partner, they must show contribution in the home or they must be on title!
b.Marriage: A married spouse has an inherit right to stay in the matrimonial home after separation and until divorce. They also have an inherit right to reap the profits accumulated by this home – regardless of whether they were listed on title of the home.