Last week I was pleased to participate in the Ontario Bar Association’s program on Orders for Directions. Sheila Morris was the Program Chair, and more than a half-dozen speakers presented annotated model orders for the most common types of estates and trusts claims. Here are some highlights:

Will Challenges (Speakers: Lou-Anne Farrell and Karen Hagman)

Remember Seepa v. Seepa as a threshold step: Do you meet the minimum evidentiary requirement? Also consider whether you consent to a trial of the issues being ordered. If so, you are arguably conceding that the minimum evidentiary threshold has been met.

Consider the need for an ETDL: Is it required in your situation? In modest or simple/liquid estates, can some other informal way forward be agreed to with the parties reserving their right to seek an ETDL?

Consider production: Giving the parties authority to obtain records is preferable to asking the court to order third parties to produce records, which may require formal service on the third parties. Where the grounds for the challenge are weak, the Court is more likely to order the requesting party to pay the costs at first instance.

Dependant Support Claims (Speakers: Benjamin Arkin, Praniet Chopra and Holly Cunliffe)

Consider the parties: A dependant support claimant will name the estate trustee(s) as the respondent(s), of course, but remember that all other potential dependants are proper parties (s. 60(2) of the SLRA), and non-dependant beneficiaries should be given notice of the proceeding.

Consider Minors: A parent can make a dependant support claim for a child without being appointed litigation guardian (s. 58(2) of the SLRA). In contrast, the Children’s Lawyer shall act as litigation guardian for a child respondent in a dependant support claim, unless the court orders otherwise (Rule 7.03(2)).

Consider who will defend the application: Though an estate trustee is obliged to defend a claim against the estate, an estate trustee may prefer to remain neutral, and certain beneficiaries may prefer to defend the claim. The order can reflect this.

Attorney and Guardianship Matters (Speakers: Marshall Swadron, Matthew Urback and me)

Consider the appointment of counsel: The appointment of a lawyer for the incapable person or alleged incapable person should occur prior to ordering a capacity assessment, as the person has a right to object to an assessment.

What capacity should not be assessed: An assessment of capacity to instruct counsel should never need to be ordered, as this is to be determined by counsel. If this becomes an issue, an appointment under s. 3 of the SDA can be resorted to.

Particulars to consider: In high-conflict cases where there are disagreements on various particulars surrounding an assessment, the court’s direction may be sought. Such directions may range from who the assessor is, the place and time of the assessment, and transportation to the assessment. If the person assessed does not have sufficient funds, consider whether the person who put capacity at issue ought to pay, as would be the expectation under Rule 33.    

The annotated model orders provided contain more helpful legal and strategic considerations, as well as additional sample order language – a handy resource for lawyers both new and experienced in this area of practice. 

Thanks for reading and have a great weekend,

Natalia Angelini