DAVIS LLP, the DAVIS LLP logo is a trade-marks of Davis LLP, © 2007 Davis LLP all rights reserved. Unauthorized copying, d...
What Accountants Need to Know About
Family Law
1. The Legal Framework for Family
Law in B.C.
2. Characterization and Divis...
Legal Framework Topics
1. We’re Splitting Up – What Now?
2. Family Legislation in B.C.
3. Family Court
4. Alternatives to ...
We’re Splitting Up – What Now?
Options
1. Negotiate a separation agreement
2. Attend mediation
3. Start a court action
4. ...
Family Legislation in B.C.
Family Law Act
 Provincial
 Married or unmarried
spouses
 Division of property
 Custody of ...
So Sue Me! Family Court
Supreme Court of B.C.
 Divorce
 Division of assets
 Child support
 Spousal support
 Custody o...
Family Court (cont’d)
Overview of a Supreme Court Family Action
 Plaintiff files Notice of Family Claim
 Defendant files...
Let’s Work it Out: Alternatives to Trial
Courts can require parties to attend family dispute
resolution
Family violence is...
Alternatives to Trial (cont’d)
Mediation
 Parties attend with or without lawyers to try to
resolve issues privately
 Can...
Collaborative Law
 Parties and their lawyers agree not to go to
court
 Try to work out issues in negotiations
 If one p...
Family Law Arbitration
 An adjudicative process
 An impartial arbitrator makes a decision for the
parties that is intend...
Parenting Coordination
 The parties may agree or the court may order that a
parenting coordinator be appointed to assist ...
Sign on the Dotted Line: “Pre-Nups”
Marriage Agreements or “Pre-Nups”
 Can be done before or during the marriage
 To lim...
Sign on the Dotted Line: Separation
Agreements
 A contract to confirm in writing the
terms of division of assets, spousal...
Agreements under the Family Law Act
 Marriage Agreements, Cohabitation Agreements
and Separation Agreements are treated t...
Agreements under the Family Law Act
 Tests for setting aside an agreement include:
• Defects going to formation
 Failure...
Family Assets Topics
1. Who is Entitled to Share in Property on Relationship Breakdown?
2. What is an “Asset”?
3. Who Gets...
Who is Entitled to Share in Property?
 Family Law Act:
• Came into force March 18, 2013
• Replaces the Family Relations A...
It’s Not Fair! Cohabitation and Division of
Assets
Cohabiting couples under Family Law Act:
 Must qualify as “spouse” to ...
Cohabitation and Division of Assets
(cont’d)
 Potential Issues with cohabiting couples:
• When does co-habitation begin?
...
What is divided? – Family Property
 Family property is divisible
• All property other than excluded property
(defined lat...
Family Law Act – Business Assets
Business Assets
 An interest in a business can be considered a
family asset regardless o...
Family Law Act – Excluded Property
 Excluded property is
• Property owned by the spouse at the
date the spouses began to ...
Who Gets What? Family Law Act
For legally married and unmarried spouses
 Spouses are not be required to go to court
to tr...
To Divide (Equally) or Not, That is the
Question! Division of Family Assets
 The court may divide family property and fam...
To Divide (Equally) or Not, That is the Question!
Division of Family Assets (cont’d)
• Where a spouse, other than in good ...
To Divide (Equally) or Not, That is the Question!
Division of Family Assets – FLA (cont’d)
 May consider the extent to wh...
Valuation of Assets
Family Law Act
 The Family Law Act (s. 87(a) provides that value of family
property is fair market va...
What’s Mine is Mine, What’s Yours is Mine, What’s Ours is
Mine… Determination of Ownership, Possession or Division
of Asse...
The Wolf at the Door! Debts and the
Division of Assets
Third party rights cannot be affected by agreement or
court order, ...
Is the Grass Always Greener? Assets
Outside of B.C.
Matrimonial property outside of B.C.
under Family Law Act:
 Court can...
Income Tax Issues Related To Asset
Division
Capital Property – Spousal rollover – ss. 73(1)
Income Tax Act (ITA)
Requireme...
Income Tax Issues Related To Asset
Division (cont’d)
Capital Property – Other
 Utilization of principal residence exempti...
Income Tax Issues Related To Asset
Division (cont’d)
Non-capital property
 Deferred income plans
– RRSP’s, DPSP’s TFSA’s ...
Planning Opportunities Related To Asset
Division
Attribution – property transfers
 Transferor spouse taxed on income or
c...
Show Me the Money! Spousal Support
Who can receive spousal support?
 Divorce Act: married spouses
 Family Law Act:
• Mar...
Spousal Support (cont’d)
Entitlement: threshold issue, may arise based on contract, need
or compensatory principles
Spousa...
Spousal Support (cont’d)
Spousal Support Advisory Guidelines:
• “Advisory”, not mandatory
• Courts will follow, unless art...
Spousal Support (cont’d)
Tax treatment of spousal support
 Included in recipient’s income
 Deductible to the payor if:
1...
And for the Kids? Child Support
 Based on income of the payor and
number of children
 Payable even when not biological o...
Child Support (cont’d)
 Basic child support until 19 years of age
plus extraordinary expenses
 Extraordinary expenses ma...
Child Support (cont’d)
Tax treatment of child support
 Not taxable for recipient
 Not deductible for payor
Deductibility of Legal Costs
Legal costs to do the following are tax
deductible:
 obtain child support
 obtain spousal s...
7th Inning Stretch
Case Studies
Case Studies
Case Study #1: Jack & Jill
Jack and Jill were married in 1993. They are both 45 years of age.
They have 3 children (20, 18...
Jack & Jill (cont’d)
Jack has RRSPs worth $300,000 and Jill has RRSPs worth
$150,000. Jill owned the family home in Vancou...
Jack & Jill (cont’d)
Questions
1. What is the family property?
2. Does Jill have an interest in Jack’s business?
3. If yes...
Case Study #2: Ben & Gerri
Ben and Gerri have lived together since 1999. Ben is 50 and Gerri is
48. They have no children....
Ben & Gerri (cont’d)
In 2001 Ben and Gerri purchased a property on Pender Island for
$400,000– a small home on 1 hectare. ...
Ben & Gerri (cont’d)
Questions
1. Does Gerri have an interest in the Pender Island property?
2. Does Gerri have an interes...
Questions?
DAVIS LLP, the DAVIS LLP logo is a trade-marks of Davis LLP, © 2007 Davis LLP all rights reserved. Unauthorized copying, d...
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Breaking Up Is Hard to Do!

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This presentation, delivered as part of the ICABC Professional Development Program, looks at what accountants need to know about family legislation in B.C. to better serve their clients. Considering options available in reaching a settlement when a marriage or common-law relationship comes to an end, the presentation takes a look at how business and family assets are defined and the income tax issues that may arise from asset division. Dispute resolution options and cooperative approaches available under the Family Law Act are also explored.

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Breaking Up Is Hard to Do!

  1. 1. DAVIS LLP, the DAVIS LLP logo is a trade-marks of Davis LLP, © 2007 Davis LLP all rights reserved. Unauthorized copying, distribution and transmission is strictly prohibited. Breaking Up is Hard to Do! Institute of Chartered Accountants 2013 Grace G. Choi (Family Law) Shane Onufrechuk, CA (Tax)
  2. 2. What Accountants Need to Know About Family Law 1. The Legal Framework for Family Law in B.C. 2. Characterization and Division of Family Assets 3. Spousal Support 4. Child Support 5. Tax Deductibility of Legal Costs 6. Other?
  3. 3. Legal Framework Topics 1. We’re Splitting Up – What Now? 2. Family Legislation in B.C. 3. Family Court 4. Alternatives to Trial 5. Sign on the Dotted Line: Family Law Agreements
  4. 4. We’re Splitting Up – What Now? Options 1. Negotiate a separation agreement 2. Attend mediation 3. Start a court action 4. dispute resolution options and cooperative approaches under the Family Law Act  Family law arbitration  Parenting coordination  Conduct orders
  5. 5. Family Legislation in B.C. Family Law Act  Provincial  Married or unmarried spouses  Division of property  Custody of children  Child support  Spousal support Divorce Act  Federal  Divorce order sought – statute applies to legal marriages only  Custody of children  Child support  Spousal support
  6. 6. So Sue Me! Family Court Supreme Court of B.C.  Divorce  Division of assets  Child support  Spousal support  Custody of children Provincial Court of B.C.  Child support  Spousal support  Custody of children
  7. 7. Family Court (cont’d) Overview of a Supreme Court Family Action  Plaintiff files Notice of Family Claim  Defendant files Response to Notice of Family Claim  Disclosure obligations - Financial Statement - Document disclosure  Judicial Case Conference  Non-Final Order applications  Trial Management Conference  Trial  Judgment  Final Order
  8. 8. Let’s Work it Out: Alternatives to Trial Courts can require parties to attend family dispute resolution Family violence is an important consideration under the Family Law Act. Lawyers and courts must assess whether there is family violence to determine the appropriate manner of resolving disputes
  9. 9. Alternatives to Trial (cont’d) Mediation  Parties attend with or without lawyers to try to resolve issues privately  Can formulate creative solutions that a court cannot order  The mediator will facilitate a resolution but cannot impose a resolution
  10. 10. Collaborative Law  Parties and their lawyers agree not to go to court  Try to work out issues in negotiations  If one party wants to go to court, then both must hire new lawyer for the court process
  11. 11. Family Law Arbitration  An adjudicative process  An impartial arbitrator makes a decision for the parties that is intended to be final, binding and enforceable  A party may appeal an arbitration award
  12. 12. Parenting Coordination  The parties may agree or the court may order that a parenting coordinator be appointed to assist with implementation of an order or agreement for parenting arrangements.  An appointment is for a maximum two year term, but is renewable  To assist in building consensus, aiding communication and conflict resolution, to improve communication and parenting skills  Parenting coordinator may make decisions in circumstances, per s. 18 of the Family Law Act
  13. 13. Sign on the Dotted Line: “Pre-Nups” Marriage Agreements or “Pre-Nups”  Can be done before or during the marriage  To limit equal division of assets or argument over why equal division is not fair Cohabitation Agreements  Under the Family Law Act, a spouse includes married spouses and unmarried spouses  As a consequence, unmarried spouses likely cannot avoid the property division regime set out in the Family Law Act on relationship breakdown.  Unmarried spouses with significant assets should consider signing cohabitation agreements
  14. 14. Sign on the Dotted Line: Separation Agreements  A contract to confirm in writing the terms of division of assets, spousal support and child support  If a marriage or cohabiting relationship breaks down, often ideal to negotiate a separation agreement • Private • Win/win • Can make innovative arrangements outside of the court’s usual remedies
  15. 15. Agreements under the Family Law Act  Marriage Agreements, Cohabitation Agreements and Separation Agreements are treated the same under the Family Law Act  Section 94(2) – the court may not make an order respecting the division of property and family debt that is the subject of an agreement described in s. 93(1) (setting aside agreements respecting property division), unless all or part of the agreement is set aside under s. 93
  16. 16. Agreements under the Family Law Act  Tests for setting aside an agreement include: • Defects going to formation  Failure to disclosure significant property or debts, or other relevant information;  Improper advantage of vulnerable spouse;  Lack of understanding of the nature or consequences; • If the agreement is “significantly unfair”,  “Significant unfairness” determined by taking into account: • The length of time since the agreement was made; • The intention of the parties to achieve certainty; • The degree of reliance on the agreement  Meaning of “significantly unfair” will be interpreted by the courts  Government has stated it intended to make it more difficult for courts to interfere with freely negotiated, procedurally fair marriage agreements
  17. 17. Family Assets Topics 1. Who is Entitled to Share in Property on Relationship Breakdown? 2. What is an “Asset”? 3. Who Gets What? Dividing Family Assets 4. To Divide (Equally) or Not to Divide, That is the Question! Reapportionment of Assets 5. What’s Mine is Mine, What’s Yours is Mine, and What’s Ours is Mine … Determination of Ownership, Possession or Division of Assets 6. The Wolf at the Door! Debts in the Division of Assets 7. Is the Grass Always Greener? Assets Outside of B.C. 8. Income Tax Issues Related to Asset Division 9. Planning Opportunities Related to Asset Division
  18. 18. Who is Entitled to Share in Property?  Family Law Act: • Came into force March 18, 2013 • Replaces the Family Relations Act • Married and unmarried spouses are entitled to share in property on relationship breakdown
  19. 19. It’s Not Fair! Cohabitation and Division of Assets Cohabiting couples under Family Law Act:  Must qualify as “spouse” to share in property • Marriage like relationship for more than 2 years • Excludes persons cohabiting in a marriage like relationship for less than 2 years who have a child  A proceeding for division of property or allocation of debt between spouses must be brought • within 2 years of the date of divorce • within 2 years of the date of separation for unmarried spouses
  20. 20. Cohabitation and Division of Assets (cont’d)  Potential Issues with cohabiting couples: • When does co-habitation begin? • What is the date of separation? • What happens when unmarried spouses live both together and apart?
  21. 21. What is divided? – Family Property  Family property is divisible • All property other than excluded property (defined later), or property acquired from excluded assets • In general, family property is all property acquired by either spouse after the date of cohabitation • Includes the increase in value of excluded property after the date of cohabitation, or inherited assets, and court awards after receipt  Includes an increase in value of a discretionary trust which may be problematic • An interest in a corporation, partnership, or business • Bank accounts, annuities, RRSPs, and property owing to a spouse • Trusts to which the spouse contributed and of which the spouse is a beneficiary, has control over distributions or has the power to terminate
  22. 22. Family Law Act – Business Assets Business Assets  An interest in a business can be considered a family asset regardless of whether a spouse contributed to the business  However, a court will still take into consideration a spouse’s direct or indirect contribution, financially or otherwise, to the acquisition, conservation, improvement, operation or management of a business owned or operated by at least one of the spouses when reapportioning family assets
  23. 23. Family Law Act – Excluded Property  Excluded property is • Property owned by the spouse at the date the spouses began to live together • Property acquired after the date of separation (and not acquired from other property) • Gifts and inheritances to one spouse • Settlements or damage awards from tort (personal injury) claims, except that part meant to compensate both spouses or to replace wages • Non-property related insurance proceeds, except that part meant to compensate both spouses or to replace wages • Trust property unless the beneficiary spouse has an immediate and absolute interest in the trust property or has the power to terminate the trust • Property acquired with excluded property
  24. 24. Who Gets What? Family Law Act For legally married and unmarried spouses  Spouses are not be required to go to court to trigger entitlement to an interest in family property  On date of separation, each spouse • has a right to an undivided half interest in all family property as a tenant in common • Is equally responsible for family debt  Absent a contrary arrangement, the valuation date is either the date of an agreement or the date of a court order dividing the property or debt  The value of family property must be based on fair market value (s. 87(b)) unless an agreement or order provides otherwise
  25. 25. To Divide (Equally) or Not, That is the Question! Division of Family Assets  The court may divide family property and family debts unequally if it would be significantly unfair not to do so having regard to specified criteria. The criteria include: • Length of the relationship • The terms of any agreement between the spouses, other than an agreement in s. 93(1) (setting aside agreements respecting property division) • A spouse’s contribution to the career of the other spouse • Whether family debt was incurred in the normal course of the relationship • If the amount of family debt exceeds the value of family property, the ability of each spouse to pay debt • Whether a spouse has, post-separation, caused a significant decrease or increase in value of family property or debt beyond market trends
  26. 26. To Divide (Equally) or Not, That is the Question! Division of Family Assets (cont’d) • Where a spouse, other than in good faith  Substantially reduced the value of family property  Disposed of property, or changed property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected; a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or any order of the court • A tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order • Any other factor that may lead to significant unfairness
  27. 27. To Divide (Equally) or Not, That is the Question! Division of Family Assets – FLA (cont’d)  May consider the extent to which financial means and earning capacity of a spouse have been adversely affected by the responsibilities and other circumstances of the relationship, provided spousal support objectives not met  The change from “unfair” to “substantially unfair” is meant to create a higher threshold and make the test for reapportionment stricter
  28. 28. Valuation of Assets Family Law Act  The Family Law Act (s. 87(a) provides that value of family property is fair market value unless an agreement or order provides otherwise  Potential Issues: • Valuation of non-liquid excluded assets at the date the relationship commenced or the property was acquired may pose challenges
  29. 29. What’s Mine is Mine, What’s Yours is Mine, What’s Ours is Mine… Determination of Ownership, Possession or Division of Assets Court can:  Declare ownership of or right of possession to property  Transfer title to other spouse or spousal trust  Make a compensation order  Order partition or sale of property  Transfer title to child or trust for child  Make an order restraining disposal of assets Family Law Act  Under certain circumstances, the court can divide excluded assets between the spouses • If it would be unfair not to divide the property, given the  length of the relationship or  the non-owner’s direct contribution to the excluded property
  30. 30. The Wolf at the Door! Debts and the Division of Assets Third party rights cannot be affected by agreement or court order, but a spouse can seek indemnity from the other spouse or releases can be sought from the third party  Family debt is defined as: • Debt of either party • Debt incurred between start of cohabitation and the date of separation • Debt incurred after separation if incurred to maintain family property  Each spouse is responsible for 50% of the debt, subject to reapportionment if substantially unfair  The court may order sale of property to satisfy debts
  31. 31. Is the Grass Always Greener? Assets Outside of B.C. Matrimonial property outside of B.C. under Family Law Act:  Court can take foreign assets into account if: • either spouse is habitually resident in B.C.; • there is a real and substantial connection between B.C. and the facts of the case; or • the parties agree that the Supreme Court has jurisdiction  the Court can either divide the extraprovincial property (if the foreign jurisdiction will respect that order) or order one spouse to pay compensation to the other spouse in lieu of dividing the property.
  32. 32. Income Tax Issues Related To Asset Division Capital Property – Spousal rollover – ss. 73(1) Income Tax Act (ITA) Requirements: 1. Former Spouse or common law partner 2. In settlement of rights arising from marriage 3. Both resident in Canada 4. Can elect out
  33. 33. Income Tax Issues Related To Asset Division (cont’d) Capital Property – Other  Utilization of principal residence exemption  Utilization of capital gains exemption  Utilization of divisive reorganization exceptions  Possible avoidance of section 84.1 (may be able to use “corporate pre-tax dollars” to fund division of interests in CCPC shares)  Utilization of tax losses of spouses
  34. 34. Income Tax Issues Related To Asset Division (cont’d) Non-capital property  Deferred income plans – RRSP’s, DPSP’s TFSA’s and RRIF’s  Life insurance policies and annuities
  35. 35. Planning Opportunities Related To Asset Division Attribution – property transfers  Transferor spouse taxed on income or capital gains derived from transferred property  Exclusions from attribution  Election required for capital gains attribution to be excluded Joint and several tax liability s.160 ITA Other?
  36. 36. Show Me the Money! Spousal Support Who can receive spousal support?  Divorce Act: married spouses  Family Law Act: • Married spouses • Unmarried spouses if lived together in “marriage-like relationship” for more than 2 years • Unmarried spouses if lived together in “marriage-like relationship” for less than 2 years who have also had a child together
  37. 37. Spousal Support (cont’d) Entitlement: threshold issue, may arise based on contract, need or compensatory principles Spousal support will only be ordered to the extent the spousal support objectives have not already been met through an unequal property division Spousal support obligations in agreements or court orders survive the death of the paying spouse unless the agreement or court order provides otherwise
  38. 38. Spousal Support (cont’d) Spousal Support Advisory Guidelines: • “Advisory”, not mandatory • Courts will follow, unless articulate reason not to do so • Range of support payable, taking into account the factors for quantum and duration Factors for quantum and duration include: • Need of the recipient • Means of the payor • Lifestyle • Length of marriage • Ages of parties • Roles in the marriage
  39. 39. Spousal Support (cont’d) Tax treatment of spousal support  Included in recipient’s income  Deductible to the payor if: 1. periodic basis 2. for the maintenance of the recipient 3. recipient is the spouse or former spouse of payor 4. recipient and payor are living separate and apart due to breakdown of relationship 5. paid pursuant to a court order or written agreement
  40. 40. And for the Kids? Child Support  Based on income of the payor and number of children  Payable even when not biological or adopted children  No need to be married, cohabiting or even dating  Child Support Guidelines: mandatory  Divorce not granted unless the court is satisfied appropriate financial arrangements made for children, consistent with the Guidelines
  41. 41. Child Support (cont’d)  Basic child support until 19 years of age plus extraordinary expenses  Extraordinary expenses may include medical, dental, tuition, and some recreational activities, among others  Basic child support and extraordinary expenses can continue past 19 years of age
  42. 42. Child Support (cont’d) Tax treatment of child support  Not taxable for recipient  Not deductible for payor
  43. 43. Deductibility of Legal Costs Legal costs to do the following are tax deductible:  obtain child support  obtain spousal support  obtain an increase in support  defend against reduction in support  enforce payment of support arrears
  44. 44. 7th Inning Stretch
  45. 45. Case Studies Case Studies
  46. 46. Case Study #1: Jack & Jill Jack and Jill were married in 1993. They are both 45 years of age. They have 3 children (20, 18, 16). Jack is an ophthalmologist who carries on his own practice through a professional corporation. Jack is the sole shareholder of the company. He works 5 days per week and takes an annual salary of $200,000, and leaves the remaining $300,000 of annual profit in the company. The company has retained earnings of $2,000,000. There is some goodwill in the company. The company owns $1.5 million in mutual funds. A preliminary estimate of the corporation’s fair market value is $3,000,000. Jill was a nurse at Vancouver General Hospital for 3 years before she met Jack. She has a pension of an undetermined value. Jill had their first child shortly after they married and then stayed at home.
  47. 47. Jack & Jill (cont’d) Jack has RRSPs worth $300,000 and Jill has RRSPs worth $150,000. Jill owned the family home in Vancouver prior to the marriage. It was worth $500,000 at the time of the marriage. Its 2013 assessed value is $1.5 million. There is a $300,000 mortgage against the property. Jack has an investment portfolio with a cost of $100,000 and a fair market value of $250,000. The portfolio was purchased during the marriage. Jack bought a cottage on Saltspring Island in 1987. He paid off the mortgage before marrying Jill. The property is now assessed at $1.5 million. Jack and Jill also own two vehicles, a Volvo purchased in 2010 and a BMW purchased in 2013. Last year, Jill’s mother passed away and Jill received an inheritance of $100,000, which she placed into an investment portfolio. Jack and Jill are attending mediation and negotiating a separation agreement.
  48. 48. Jack & Jill (cont’d) Questions 1. What is the family property? 2. Does Jill have an interest in Jack’s business? 3. If yes, how can the business be divided? 4. What if Jill’s mother passed away 10 years ago? After the parties separated? 5. Are there any tax attribution implications to consider?
  49. 49. Case Study #2: Ben & Gerri Ben and Gerri have lived together since 1999. Ben is 50 and Gerri is 48. They have no children. Ben is involved in his family’s company. The Steinberg Family Trust owns 80% of the shares in Nutrico Ltd., a small business corporation which manufactures nutritional supplements. Ben is a discretionary beneficiary of the trust and holds a direct 20% interest in Nutrico. Ben has a company, Ben Co., which owns 20% of Steinberg Properties Ltd., which owns a number of revenue properties. Ben reported $40,000 of taxable income on his 2012 tax return. However, this income is not consistent with his spending habits. While Ben and Gerri lived together they spent $500,000 per year. Gerri worked as a bank teller but stopped after moving in with Ben. Since 2005, Gerri has worked at Nutrico making $10,000 per year. She works 8 hours per day, 4 to 5 days per week. She wants to go back to school to study interior design.
  50. 50. Ben & Gerri (cont’d) In 2001 Ben and Gerri purchased a property on Pender Island for $400,000– a small home on 1 hectare. Gerri contributed $100,000 from the sale of a condo she owned and Ben contributed $200,000. The home is in Ben’s name. They planned to renovate the home and eventually retire there. The property has significantly increased in value – now assessed at $900,000. There is a $100,000 mortgage on the property.
  51. 51. Ben & Gerri (cont’d) Questions 1. Does Gerri have an interest in the Pender Island property? 2. Does Gerri have an interest in Steinberg Properties? 3. Does Gerri have an interest in Nutrico or the trust? 4. Is Gerri entitled to spousal support? 5. What are the remedies a court could order with respect to the Pender Island property? 6. Does the timing matter in respect of any transfer of Ben’s interest in Nutrico to Gerri?
  52. 52. Questions?
  53. 53. DAVIS LLP, the DAVIS LLP logo is a trade-marks of Davis LLP, © 2007 Davis LLP all rights reserved. Unauthorized copying, distribution and transmission is strictly prohibited. Thank you for your interest… www.davis.ca

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