Author: Arielle Di Iulio

12 Aug

Succession of Land on Reserves

Arielle Di Iulio Vesting of Real Property Tags: , , , 0 Comments

Last week, Ian Hull and Ekroop Sekhon blogged about the roles of Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada in the administration of estates of Indigenous peoples. For today’s blog, I will discuss how an Indigenous person’s interest in land on reserve is dealt with following their death.

Land Ownership on Reserve

First, it is important to understand the nature of land ownership in the reserve system. There are three property rights regimes that exist on reserves – the Indian Act (the “Act“), the First Nations Land Management Act, and customary or traditional rights. The scope of this blog is limited to the scheme set out in the Act.

Under the Act, the Crown retains legal title to reserve lands and holds them “for the use and benefit of the respective bands for which they were set apart” under treaties or other agreements. Reserves that serve as residences are legally referred to as “Bands”, though they can also be referred to as First Nations. Band members can obtain a “Certificate of Possession” (“CP“) which recognizes that they have “lawful possession” of land in a reserve that has been allotted to them by the band council and Minister of Indigenous Services (the “Minister“). Lawful possession is something less than fee simple ownership; however, the holder of a CP does have the right to occupy the land, build on the land, and use the land for resource extraction. In addition, s.24 of the Act allows the holder of a CP to transfer their interest in land to another band member(s), subject to the approval of the Minister. This includes transfers of interest into joint tenancy or tenants in common. Land in a reserve that is not assigned to individuals is held as community property for the benefit of the whole band. The Act prohibits the “surrender” and sale of reserve land by the band or the holder of a CP to anyone besides the Crown.

Succession of Land on Reserve

The succession provisions in the Act can be found at sections 42 to 50.1. According to these rules, an Indigenous person can devise land rights to an heir in their Will. However, the Will only has legal effect if and when it is approved by the Minister or a court has granted probate. Furthermore, only band members can directly inherit reserve lands. If the deceased attempts to dispose of reserve land in their Will in a manner that contravenes the Act or is contrary to the interests of the band, the Minister can declare the Will void, in whole or in part.

If an Indigenous person dies without a Will, no surviving relative whose degree of kinship is more remote than that of a sibling may inherit any interest the deceased held in reserve land. Where there is no descendant eligible to inherit the deceased’s interest in the land, it will revert to the Crown for the benefit of the First Nation.

If a beneficiary named in a Will or on intestacy is not a band member, then the deceased’s right or interest in the land will be offered for sale among persons who are entitled to reside on the reserve and the beneficiary will receive the proceeds from the sale. If no one purchases the interest in the land within a certain period of time, the interest reverts to the First Nation. In that case, the Minister may pay the beneficiary compensation for permanent improvements, as determined by the Minister. This compensation is paid from the First Nation’s funds.

Where the deceased died leaving a spouse or common-law partner, the surviving spouse or partner has an automatic right to occupy the matrimonial home for six months after the deceased’s death, pursuant to the Family Homes on-reserves and Matrimonial Interests or Rights Act. This is the case even if the surviving spouse has no interest or right to the home and is not a band member. In some situations, the court will grant the surviving spouse exclusive occupation beyond the six month period.

Thanks for reading!

Arielle Di Iulio

10 Aug

Survivor’s Pension: Rights of the Twice-Widowed Woman

Arielle Di Iulio Elder Law, Pension Benefits Tags: , , 0 Comments

For many, a survivor’s pension is an indispensable source of income following the death of a spouse. In the recent case of Weatherley v. Canada (Attorney General), 2021 FCA 158, before the Federal Court, one widow fought to maximize her survivor’s pension benefits by challenging the constitutionality of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the “CPP“).

The applicant, in this case, was an elderly woman who was twice-widowed. Under the CPP, after a spouse dies, the surviving spouse can receive a survivor’s pension. If the surviving spouse remarries and their second spouse dies, subsection 63(6) of the CPP limits the surviving spouse to only one survivor’s pension, being the higher of the two. In Weatherley, the applicant sought two survivor’s pensions before the Social Security Tribunal on the ground that s. 63(6) of the CPP discriminates against her on the basis of sex contrary to section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter“). She argued that s. 63(6) draws a distinction based on sex because the majority of people who are twice-widowed are women. Furthermore, s. 63(6) denies a benefit because, without this provision, she would receive symbolic recognition for non-monetary contributions she made to her first marriage.

The General Division agreed with the applicant, finding a Charter infringement. The Appeal Division reversed that decision. On the application for judicial review, the Federal Court found that s. 63(6) of the CPP is constitutional and does not discriminate on the basis of sex.

The Honourable Justice David Stratas, writing for the Federal Court, explained in his decision that Charter cases call for a careful examination of context. In this case, the context is informed by 1) the nature of the scheme established and regulated by the CPP, and 2) the nature of the survivor’s pension under that scheme. He explained that the scheme is a national “contributory plan”, not a “social-welfare” scheme. It was never intended to meet the needs of all contributors in every conceivable circumstance but rather to provide partial earnings replacement in certain circumstances, such as the death of a wage-earning spouse. Subsection 63(6) reflects the insurance nature of the scheme: an individual can only lose one wage-earning spouse at a time.

To establish that s. 63(6) infringes s. 15(1) of the Charter, the applicant was required to show that s. 63(6) creates a distinction based on an enumerated or analogous ground, and s. 63(6) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage. Justice Stratas concluded that the evidence filed before the Social Security Tribunal did not establish that s. 63(6) draws a distinction on the basis of sex or denies a benefit.

First, there is no sex-based discrepancy in the demographics of the group the law could apply to, i.e., once-widowed survivors, and the demographics of the group the law did apply to, i.e., twice-widowed survivors. These two groups are nearly identical. Second, the evidence did not clearly show that twice-widowed survivors are disadvantaged as compared to once-widowed survivors and, in fact, there was some evidence to suggest that the former group fare better under the scheme. Additionally, Justice Stratas clarified that the survivor’s pension is not intended to recognize non-financial contributions made to a marriage. Instead, it was designed to provide a minimum income supplement determined, in part, by contributions made to the scheme by the spouse. For these reasons, no Charter infringement was found and the applicant’s claim was dismissed.

In his decision, Justice Stratas went on to state that even if s. 63(6) of the CPP somehow violates s. 15(1) of the Charter, then it is a reasonable limitation on rights and, thus, saved under section 1 of the Charter.

The Federal Court’s decision in Weatherley offers useful insight into the CPP and Canada’s pension benefits scheme as a whole. It also suggests that the judiciary will continue to give significant deference to Parliament when tasked with scrutinizing complex benefits legislation such as the CPP.

Thanks for reading!

Arielle Di Iulio

09 Aug

Comparing Powers of Attorney in Ontario

Arielle Di Iulio Elder Law, Estate Planning, Power of Attorney Tags: , , 0 Comments

A power of attorney (POA) is a legal document that gives someone else the authority to make decisions on your behalf. The term “attorney” refers to the person(s) that you have chosen to act on your behalf. There are three types of POA in Ontario: general POAs for property, continuing POA for property, and POA for personal care. These documents can be very useful planning tools; however, it is important to understand the differences between them so that they can be used optimally. This blog compares the three types of POAs in Ontario.

1. General Power of Attorney for Property

A general POA for property can give your attorney the right to make decisions with respect to all or some of your finances and property. Unless you expressly restrict your attorney’s powers in the POA document, they will be able to do anything that you can do concerning your property, except make a Will.

A general POA can be limited by task, by type of property, and/or by time. For example, you may want to grant a POA for the specific purpose of selling your home. If you do not want everything you own to be managed by your appointed attorney, you could limit the property that is covered by your POA. A common example is to exclude all corporate assets from your POA. You can also specify whether the general POA starts from the moment it is executed or upon a specific date or event. To ensure that the POA is used as intended and without issue, any restrictions placed on the attorney’s powers should be clearly and unequivocally set out in the POA document.

It is important to note that a general POA allows your attorney to act on your behalf only while you are mentally capable of managing your own affairs. The general POA ends and cannot be used if and when you become mentally incapable.

2. Continuing Power of Attorney for Property

A continuing or enduring POA for property is essentially the same as a general POA for property with one key difference: the continuing POA for property allows your attorney to continue acting on your behalf even after you become mentally incapable of managing your own affairs. To ensure that the POA endures beyond your incapacity, the document must be a Continuing Power of Attorney for Property or expressly state that your attorney(s) may continue to act if you become mentally incapable.

In order to make a POA for property, you must be at least 18 years old and possess the requisite level of mental capacity as described in s. 8(1) of the Substitute Decisions Act.

3. Power of Attorney for Personal Care

A POA for personal care covers decisions relating to your personal health and well-being, such as medical treatment, diet, housing, clothing, hygiene, and safety. Similar to a POA for property, the attorney for personal care will have the authority to make almost every decision related to your personal care that you would normally make for yourself unless their powers are otherwise restricted in the POA document.

Unlike a POA for property, a POA for personal care may only be used when you are not mentally capable of making the personal care decision yourself. In other words, your attorney can only step in when there is a personal care decision that you are incapable of making for yourself. Depending on the specific decision at issue, either your attorney or a health professional must determine whether you are incapable of making the decision before your attorney can act on your behalf.

In order to make a POA for personal care, you must be at least 16 years old and possess the requisite level of mental capacity as described in s.47 of the Substitute Decisions Act.

The Office of the Public Guardian and Trustee provides POA document templates, which can be found here. However, it is best to obtain legal advice when creating a POA to ensure that it is drafted in a way that will allow your attorneys to manage your property and/or personal care as you intended.

Thanks for reading!

Arielle Di Iulio

03 Jun

Protecting Long-Term Care Home Residents by Promoting Immunization

Arielle Di Iulio Elder Law, General Interest, In the News, Public Policy Tags: , , 0 Comments

On April 30, 2021, the Long-Term Care Covid-19 Commission (the “Commission“) released its Final Report to the Minister of Long-Term Care. This report pulled back the curtain on the dreadful conditions that residents of certain long-term care homes in Ontario have endured during the coronavirus pandemic. It also made recommendations to the Ontario government with respect to improving quality of care for the long-term care resident population. You can read more about the Commission’s report in Ian Hull and Tori Joseph’s recent blog.

It seems that the Ontario government is heeding the Commission’s call to action. On May 31, 2021, Ontario announced that all long-term care homes in the province will be required to put into place certain COVID-19 vaccine policies for staff. The focus of these policies will be on educating long-term care staff about COVID-19 vaccines and promoting full immunization among staff.

The requirements related to the establishment, implementation and reporting on a COVID-19 immunization policy in long-term care homes are set out in the Minister’s Directive: Long-term care home COVID-19 immunization policy (the “Directive“). The objectives of the Directive are to establish a consistent approach to COVID-19 immunization policies in long-term care homes, optimize COVID-19 immunization rates in homes, and ensure that staff make informed decisions about COVID-19 vaccination. To meet these objectives, the Directive provides that every person working in a long-term care home in Ontario will be required to do one of the following:

  • Provide proof of vaccination of each dose;
  • Provide a documented medical reason for not being vaccinated; or
  • Participate in an educational program about the benefits of vaccination and the risks of not being vaccinated.

The Directive is effective as of July 1, 2021, which means that long-term care homes have approximately one month to implement their COVID-19 staff immunization policies.

It is worth noting that Ontario is the first province in Canada to make it mandatory for long-term care homes to have COVID-19 immunization policies for staff and to set out the minimum requirements that need to be included in these policies. Hopefully this will be an effective step towards better protecting the health and well-being of long-term care home residents.

Thanks for reading!

Arielle Di Iulio

01 Jun

Toller James Montague Cranston (Estate of): Lose Big, Pay Big

Arielle Di Iulio Estate Litigation, Litigation Tags: , , 0 Comments

As in other areas of civil litigation, the general costs principle of “loser pays” applies in estate litigation. The recent costs decision of Toller James Montague Cranston (Estate of), 2021 ONSC 3704, is an interesting example of just how much a loser in estate litigation could have to pay.

In Toller, the Estate Trustee of the estate of Toller Cranston was compelled to bring an application to pass her accounts by the two other beneficiaries of the estate. These beneficiaries (the “Objectors“) raised over 300 objections to various expenses paid by the Estate Trustee personally to administer the estate in Mexico. The Objectors were unsuccessful on all of their objections except for five. They also made allegations of fraud and theft by the Estate Trustee which were ultimately unproven. The Estate Trustee sought costs on a substantial indemnity scale of $390,602.98 inclusive of HST and disbursements, payable by the Objectors personally. The Objectors took the position that the requested amount was not reasonable or proportionate in the circumstances.

In his costs decision, the Honourable Justice Robert Smith relied on the factors set out in Rule 57 of the Rules of Civil Procedure to help determine the appropriate costs award to make. He also relied on the case of Estate of Francoise Poitras v. Canadian Cancer Society, 2021 ONSC 406, for a summary of the legal principles applicable to costs in estate litigation, which include:

  • An estate trustee is generally entitled to be indemnified for all reasonably incurred costs in the administration of an estate, including the legal costs of an action reasonably defended, to the extent these costs are not recovered from another person.
  • The winning party in estate litigation is usually entitled to reasonable costs from the losing party.
  • A court may deny cost recovery by an estate trustee, in whole or in part, if the trustee acted unreasonably or in substance for his or her own benefit, rather than for the benefit of the estate.
  • If the estate trustee acted reasonably, the court may require the other party or parties to pay costs or make a blended order requiring the losing party to pay some costs and the estate to pay the balance.
  • In fixing costs, the court must determine the fair and reasonable amount that a party should pay in the particular circumstances of the case.

In the case at hand, the Estate Trustee won by a landslide. What is more, given the complexity of the estate and the large number of objections raised, the Estate Trustee was forced to spend a significant amount of time and legal expenses to respond to the 295 meritless objections that had been raised. Justice Smith also found that the Objectors acted unreasonably in refusing to narrow the issues to be decided before the hearing and to then abandon approximately half of their objections at the hearing, after time and expenses had already been incurred on those objections. The Objectors’ unfounded allegations of misconduct by the Estate Trustee also warranted an elevated costs award.  For these reasons and more, Justice Smith concluded that the bulk of the Estate Trustee’s legal costs should be paid by the Objectors.

It was ultimately decided that the Objectors would pay costs to the Estate Trustee on a substantial indemnity basis, reduced by an amount to account for the Objectors’ partial success. This resulted in a notably high costs award of $325,000.00, inclusive of disbursements and HST, payable to the Estate Trustee by the Objectors. It was further ordered that the balance of the Estate Trustee’s legal costs be paid to her from the estate.

The Toller decision shows that the court will not shy away from holding a losing party personally liable for significant costs in estate disputes where the court deems such an award to be appropriate in its discretion. To help limit personal liability to costs in the event of a loss, parties should endeavour to act reasonably from the beginning through to the end of the litigation.

Thanks for reading!

Arielle Di Iulio

31 May

Bill 245: Changes to the Succession Law Reform Act in force January 1, 2022

Arielle Di Iulio Estate Planning, General Interest, In the News, Wills Tags: 0 Comments

In an effort to modernize the legal system and bring it into the 2020’s, the office of the Attorney General of Ontario introduced Bill 245, also known as the Accelerating Access to Justice Act, 2021, in February 2021. The bill received royal assent on April 19, 2021.  Schedule 9 to Bill 245 provides for important changes to the Succession Law Reform Act, RSO 1990, c S. 26 (the “SLRA”). These changes have previously been discussed in Suzana Popovic-Montag’s blog and this podcast by Jonathon Kappy and Rebecca Rauws.

Schedule 9 to Bill 245 provides for six updates to the SLRA. Section 1 of Schedule 9, which makes changes to section 4 of the SLRA, has already come into force and effect. As a consequence of these amendments, the remote execution and witnessing of Wills in counterpart is now permitted on a permanent basis.

The Lieutenant Governor has recently proclaimed that the remaining changes to the SLRA as set out in sections 2 to 6 of Schedule 9 will officially come into effect on January 1, 2022. These changes are briefly summarized as follows:

  1. Sections 15(a) and 16 of the SLRA are repealed;
  2. Section 17 is amended to include separate spouses, such that any testamentary gift made to a spouse will be revoked upon separation;
  3. A new section 21.1 is added to provide for court-ordered validation of a Will that was not properly executed or made under the SLRA; and
  4. A new section 43.1 is added to provide that the spousal entitlements under the intestacy provisions do not apply if the person and the spouse are separated at the time of the person’s death.

The above-listed amendments are meant to better reflect the modern day experience of individuals and families in Ontario. These changes to the SLRA will certainly be a positive start to the year 2022.

Thanks for reading!

Arielle Di Iulio

11 Mar

Dewaele v Roobroeck: The Costs of Bad Conduct

Arielle Di Iulio Estate Litigation, Litigation Tags: , , , 0 Comments

Estate litigation can be expensive. Sometimes a court may award costs to be paid personally by a party in an estates matter. Parties should always try to act reasonably throughout the litigation, as anything less may attract such adverse costs consequences. A recent example of this is the case of Dewaele v. Roobroeck, 2021 ONSC 1604.

The underlying application arose from the inability of three siblings to agree on how the estates of their late parents should be administered. The siblings were the sole beneficiaries and co-estate trustees of their parents’ estates. The daughter of the deceased parents brought an application against her two brothers seeking various relief, including an order removing them as co-estate trustees and appointing her as the sole estate trustee. Her application was successful and she sought costs against her brothers. Specifically, the applicant sought an order that her substantial indemnity costs be paid by her brothers and that the balance of her full indemnity costs be paid by the estates.

The decision on the issue of costs was given by the Honourable Justice Sheard, who held in favour of the applicant. In her written reasons, Justice Sheard provides a concise summary of the law governing the determination of cost awards in estates matters. First, she cites s.131 of the Courts of Justice Act,  R.S.O. 1990, c. C.43 as amended, which provides that, subject to the provisions of an Act or rules of court, the court has discretion to determine by whom and to what extent costs should be paid. The factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 guide the court’s exercise of this discretion. The overriding objective in a cost award is that it be fair and reasonable, which is, in part, determined by the reasonable expectations of the parties concerning the quantum of costs.

Justice Sheard further explains that in estate litigation, the general rule is that estate trustees are entitled to be indemnified for costs reasonably incurred in the administration of the estate. However, the “loser pays” costs regime applies to estate matters, and a blended cost award – in which a portion of the costs is paid by the litigants and a portion from the estate – is within the court’s discretion.

In this case, the applicant asked for substantial indemnity costs from her respondent brothers. Justice Sheard affirms at paragraph 19 of her decision that such an award may be made “where the losing party has engaged in behaviour worthy of sanction”. Moreover, elevated costs should only be awarded where “there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”. Here, the respondents failed in their obligations as estate trustees, deliberately interfered with the applicant’s ability to complete the administration of the estates, and failed to comply with previous court orders made. Justice Sheard found that this conduct was worthy of sanction and can be characterized as reprehensible and outrageous. As such, an elevated costs award was appropriate. Justice Sheard ultimately decided that the applicant was entitled to be fully indemnified for the costs she incurred in respect of the application, with the respondents liable to pay the majority of these costs (and the balance to be paid from the assets of the estates).

This costs decision is an excellent reminder of the importance of acting reasonably in estate litigation. If any party, including an estate trustee, chooses to act unreasonably then they may pay for it in the end.

Thanks for reading!

Arielle Di Iulio

09 Mar

Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity

Arielle Di Iulio Capacity, Elder Law, Health / Medical, Power of Attorney Tags: , , , , , 0 Comments

Last year, my colleague Nick Esterbauer blogged about the Plan Well Guide – a free online tool to assist individuals with their advance care planning. An advance care plan sets out how a person wishes to be treated during a serious illness or health crisis. The Plan Well Guide helps users to create a ‘Dear Doctor’ Letter explaining their values and preferences with respect to their future medical care, which can then be given to their physician and substitute decision-makers to ensure that their wishes are known. For a more in-depth look at the Plan Well Guide and the process of creating a Dear Doctor letter, you can read Nick’s blog here.

Recently, the Plan Well Guide launched a new toolkit designed for legal practitioners. This free online toolkit is intended to help lawyers help their clients become better prepared for future serious illness and incapacitation. In addition to various educational resources for both lawyers and their clients, the toolkit includes:

  • a sample power of attorney for personal care;
  • a sample advanced health care directive;
  • a sample personal directive;
  • a sample ‘Dear Doctor’ letter; and
  • a step-by-step guide on how lawyers can incorporate the Plan Well Guide into their practice.

Of course, the sample legal documents contained in the toolkit should be amended to reflect the client’s specific set of circumstances and the laws of the applicable jurisdiction.

What I like most about the Plan Well Guide’s new toolkit is that it highlights the importance of a multidisciplinary approach to advance care planning. An effective advance care plan – that is, a plan which facilitates medical substitute decision-making that is consistent with the incapable person’s actual values and preferences – depends on the collaborative efforts of a person’s lawyers, doctors, and substitute decision-makers. The Plan Well Guide and its new toolkit offer accessible ways for legal professionals, health care professionals, and their clients/patients to coordinate their efforts to make serious illness planning more effective. If a lawyer is interested in improving the quality of future medical decision-making and patient outcomes for their clients, the Plan Well Guide’s toolkit for legal practitioners is certainly worth looking into.

Thanks for reading!

Arielle Di Iulio

08 Mar

Dying with a Double Life and Secret Wife

Arielle Di Iulio Common Law Spouses, Estate Litigation, Support After Death Tags: , , , , , , 0 Comments

Living a double life can be complicated. A double life that involves a secret second family can be especially complicated, both during the deceiver’s life and after their death. How is the deceiver’s estate to be divided as between his first family and his secret second family? What rights does the unmarried secret spouse in particular have in the deceased’s estate? The Supreme Court of British Columbia addresses these issues in its recent decision of Boughton v Widner Estate, 2021 BCSC 325.

Boughton concerns the Estate of Michael Gregory Widern. Michael was a known member of the infamous Hells Angels and died on March 9, 2017 by homicide. Michael left behind his married spouse, Sabrina, and their two children. He also left behind Sara – whom he had been seeing for roughly eight years unbeknownst to his wife – and their two children. While Michael was alive he spent time with both of his families, alternating between the two households. Sabrina had no knowledge of Michael’s second family until after he passed away.

Michael died without a last will and testament, leaving his estate to be distributed in accordance with the intestacy provisions set out in British Columbia’s Wills, Estates and Successions Act (“WESA”). In Boughton, Sara brought a claim against Michael’s estate seeking, amongst other things, a declaration that she is a spouse of Michael for the purposes of the WESA and is consequently entitled to a share of his estate. As such, one of the issues to be dealt with by the court was whether the WESA permits the division of an estate as between two individuals who were in concurrent, subsisting spousal relationships with the deceased at the time of death.

The honourable Justice Jennifer Duncan declared that Sara was a spouse for the purposes of the WESA. Section 2 of the WESA provides that two persons are spouses of each other if immediately before the deceased person’s death they were married to each other or they had lived together in a marriage-like relationship for at least two years. Justice Duncan found that on his death, Michael was still married to Sabrina and was also in a marriage-like relationship with Sara. Section 22 of the WESA states that if two or more persons are entitled to a spousal share of an intestate estate, they share the spousal share in the portions to which they agree or as determined by the court. Justice Duncan reasoned that this section clearly provides for more than one spousal share in the estate of an intestate. She also analyzed the legislative intent of section 22 and found that the intention of the Legislature was to continue to provide for individuals in a marriage-like relationship with an individual who was still married to someone else at the time of death. On this basis, Justice Duncan held that Sara was entitled to a declaration that she is a spouse of Michael as that term is defined in the WESA. It was further ordered that Sara and Sabrina were each entitled to half of Michael’s estate.

If this case were decided under Ontario law we would likely see a different result. Ontario’s Succession Law Reform Act (“SLRA”) has no provision equivalent to section 22 of the WESA which recognizes a “spousal share” in an intestate estate for someone other than the deceased’s married spouse. For purposes of intestate succession in Ontario, “spouse” has the same meaning as in section 1 of the Family Law Act (“FLA”), which is in essence a married person. It follows that an unmarried secret spouse would likely have no statutory entitlement to share in their deceased spouse’s estate. However, a secret spouse in Ontario could potentially claim an interest in their spouse’s estate pursuant to the dependent support provisions contained in Part V of the SLRA. In Part V, “spouse” has the same meaning as in section 29 of the FLA, which defines “spouse” more broadly as including persons not married to each other and have cohabited continuously for a period of not less than three years, or have children together and are in a relationship of some permanence. If a secret spouse meets this definition, they may still have a right to a portion of their deceased spouse’s estate by way of a dependent support claim.

Thanks for reading!

Arielle Di Iulio

17 Dec

Cross-examination: Pursue it or Lose it

Arielle Di Iulio Litigation Tags: , , , , , 0 Comments

A party has a prima facie right to test the evidence given by a witness through cross-examination. This is a critical means to building a body of evidence to support one’s case. However, if a party does not make adequate efforts to avail themselves of the opportunity to cross-examine, they may lose this benefit. The Honourable Madam Justice Sylvia Corthorn of the Ontario Superior Court of Justice addresses this issue in her recent decision in Clayton v. Clayton et al., 2020 ONSC 7592.

Clayton involves an application to remove the trustees of two trusts that form part of an estate. The applicant in this case brought a motion for an order striking the affidavit sworn by one of the respondents and trustees, Shirley. Pursuant to a notice of cross-examination, Shirley was to be cross-examined on her affidavit on November 22, 2019.  However, prior to the commencement of cross-examinations, Shirley’s counsel advised that she would not be produced for cross-examination due to concerns about her mental capacity. Counsel agreed that an assessment of Shirley’s capacity to be cross-examined was necessary and consequently, she was not cross-examined. The applicant did not obtain a certificate of non-attendance with respect to Shirley’s cross-examination and no notice to cross-examine Shirley on a subsequent date was served.

The geriatric assessment of Shirley was scheduled for May 2020 and then postponed to the fall of 2020 due to COVID-19. There was no evidence before the court as to whether this assessment was ever done. The hearing of the application was likewise delayed as a result of the pandemic. The application is currently scheduled to be heard in January 2021.

At no point after November 2019 did the applicant pursue cross-examination of Shirley. When the application returned to court in September 2020, the applicant took the position that Shirley’s affidavit cannot be used on the application in light of her supposed incapacity and the respondents’ alleged refusal to permit cross-examination. The applicant then brought a motion requesting that the affidavit be struck in its entirety on the grounds that the admission of this evidence would be prejudicial to the fairness of the hearing and constitute an abuse of process.

Justice Corthorn dismissed the applicant’s motion. She found that he did not take any steps, prior to bringing this motion, to seek the assistance of the court in determining the steps required to address concerns with respect to Shirley’s affidavit and whether she could be cross-examined. She also considered that the application had already been adjourned three times and that the applicant had not requested a further adjournment to permit cross-examination of Shirley. Justice Corthorn affirmed that the court has discretion to prevent or limit cross-examination where it is in the interests of justice to do so. She decided that in this case, it is fair to both the process and the parties to admit Shirley’s affidavit and leave the issue of the weight to be given to her evidence to be determined with the benefit of the complete record. The parties would also have the opportunity to make submissions with respect to the weight to be given to Shirley’s evidence, and this will permit the court to control the process and avoid an abuse of it.

Thanks for reading!

Arielle Di Iulio

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