Author: Christina Canestraro
If you’ve been keeping up with pop-culture and the array of new Netflix shows recently released, then the name “Tiger King” should ring a bell. The outlandish and quirky Netflix mini-series documents eccentric Oklahoman former big-cat zookeeper, Joe Exotic, and his bitter rivalry with his arch-nemesis, Carole Baskin, owner of the Big Cat Rescue sanctuary in Florida. The series concludes with Joe Exotic receiving a 22-year prison sentence for attempting to murder Baskin. Surprisingly, that is not the narrative that caught people’s attention. Rather, viewers took to social media platforms with memes, tweets, and TikTok’s of fans wondering, “Did Carole Baskin kill her husband?”.
Throughout the series, Joe Exotic alleges that Baskin murdered her first husband, Don Lewis, and fed him to the tigers housed in their shared tiger sanctuary (yes, you read that correctly). The mini-series certainly raised suspicions regarding Lewis’ disappearance. Lewis was a millionaire, who disappeared some months after having filed a restraining order against his wife. Baskin ultimately inherited all of Lewis’ assets to the exclusion of his former wife and their two children. Due to the show’s popularity, and the public’s demand for answers, the case of Lewis’ disappearance was reopened by the Hillsborough County Police.
The latest development in the investigation of Lewis’ disappearance came from the Sheriff of the Hillsborough County Police, who advised that experts have determined that Lewis’ last will, under which Baskin was the sole beneficiary, was forged. Apparently, the forgery had been alleged when this case was first brought before Florida courts, although the judge preferred the evidence of Baskin’s expert who found that the signature was not forged. This blog is not intended to explore the veracity of these allegations. However, this news did spark my curiosity with respect to forged wills and their treatment in Ontario courts.
In Ontario, a will can be forged by tracing or forging a person’s signature on a will, removing pages from a will or substituting pages to change the will’s contents, or making amendments to a will after it has been signed without the knowledge or consent of the testator.
If an objector to a will alleges forgery, courts will rely on the evidence of expert examiners. Such was the case in Bayford v Boese, 2019 ONSC 5663, wherein the court relied on the expert evidence of a document examiner who had previously worked in state crime laboratories in the USA and for the FBI. The expert examined and compared several other documents that were known to be signed by the testator to determine whether they had been forged, and ultimately concluded that they had not.
If a will is found to be a product of forgery then it would be declared invalid and the court would seek to rely on the most recent prior will. There could also be criminal consequences that flow from a finding of forgery, pursuant to section 380(1)(a) of the Criminal Code.
It will be interesting to see if anything comes of this new allegation of forgery.
Thank you for reading!
A special thanks to Sean Hess for his contributions to this post.
Last week, we blogged on serious deficiencies recently observed in long-term care facilities in Ontario and elsewhere in the country as a result of the Covid-19 pandemic. Improvement of conditions in long-term care homes has long been on the radar for many Canadian provinces even prior to Covid-19. The recent pandemic has highlighted many of the shortcomings of long-term care and provided the much-needed impetus for all levels of government to rethink ways to improve living conditions for residents.
One of the key issues highlighted by the pandemic is the reliance many residents have on family and friends to supply necessities such as food, clothing, and personal care items. Thinking about this led me to consider another important supply chain that may be suspended for residents of long-term care facilities; the supply of medical and recreational marijuana.
Prior to the Cannabis Act, S.C. 2018, c. 16, which came into effect on October 17, 2018, it was illegal to possess, obtain, produce, traffic, and import or export cannabis, except for cannabis for medical consumption. The new regime decriminalized the recreational use of cannabis, while regulations dealing with medical cannabis remained in place. The Cannabis Act was introduced for a number of reasons, one of which was to protect public health and safety to allow adults legal access to marijuana.
With the decriminalization of recreational marijuana came the loosening of stigmas surrounding marijuana consumption. A growing body of scientific studies suggest that marijuana presents a number of health benefits when used appropriately, such as relief of chronic pain, improved lung capacity, and the alleviation of feelings of anxiety and/or depression. The number of seniors using cannabis since 2012 has increased tenfold, with 52% of seniors reporting using cannabis exclusively for medical reasons, 24% for non-medical reasons, and 24% for both medical and non-medical. Unfortunately, accessing and storing marijuana is not as easy for seniors in long-term care as it is for most adults.
Notwithstanding the new regime, medical cannabis is still required to be purchased from a federally licensed producer by doctor’s order. For many residents, their primary care physician is the resident physician in their long-term care home. Naturally, not all practitioners are comfortable prescribing medical marijuana, meaning residents who prefer to consume marijuana must travel offsite to obtain such prescriptions. Even if a resident is able to obtain medical marijuana, individual long-term care facilities may have different policies in place regarding the delivery and storage of marijuana.
For some, the introduction of the Cannabis Act alleviated some of the above-noted issues by making it easier for family members and friends to purchase and deliver cannabis to residents. Given that OHIP does not cover medical marijuana, there is no financial downside to purchasing recreational cannabis (that is supplied by the Ontario Cannabis Store) rather than medical marijuana. Irrespective of their intention for use, residents in long-term care facilities should enjoy the same accessibility to marijuana as others.
Perhaps this is yet another issue that the government will consider when revitalizing and improving living standards for residents in long-term care facilities.
Thank you for reading!
A special thanks to Jane Meadus and Professor Lorian Hardcastle for their presentation on Marijuana Use in Assisted Living and Long-Term Care Facilities through the Canadian Bar Association on March 12, 2020.
As the province of Ontario slowly emerges from the strict measures in place to prevent the spread of Covid-19, businesses and organizations alike are considering what workplaces will look like moving forward. Modernizing technology in workplaces is a fundamental aspect of these considerations, and Ontario courtrooms are no exception.
On Thursday, May 28, 2020, Chief Justice Geoffrey Morawetz, Senior Family Justice Suzanne Stevenson and Regional Senior Justice Michelle Fuerst answered questions posed by members of the legal profession on the Superior Court’s response to the Covid-19 pandemic and the future of the courtroom as we know it. The overarching message conveyed by Chief Justice Morawetz was that the courts have acknowledged the need to modernize and that great efforts are being made to adapt to new technologies and integrate those technologies into our justice system.
I will briefly highlight some of the key takeaways from the Ontario Bar Association’s (OBA) webinar, although I encourage all those who are interested to watch the full webinar, which is free and accessible to the public on the OBA website. To watch the webinar, click here.
- Currently, the Superior Court of Justice has suspended in-person hearings until July 6, 2020, at the earliest. It is expected that the next phase of modernization will see a hybrid of both in-person and video or telephone conferencing. Courts will likely not return to “normal” operations (i.e. in-person hearings of all matters) until a vaccine is widely available.
- It was acknowledged that the courts moved quickly to allow for remote hearings of matters that were easily suited to a virtual hearing, such as matters that were unopposed, on consent, or in writing. Over the course of the pandemic, the courts have twice expanded the scope of matters it will hear. Moving forward, it is expected that the courts will continue to expand the virtual courtroom to be able to hear contentious matters that require oral advocacy.
- In conjunction with the Minister of the Attorney General’s office, the courts are aiming to increase availability to video conferencing across all regions.
- Given that the courts have not been operating at their full capacity since mid-March, and the backlog that existed prior to Covid-19, it is expected that there will be a significant backlog of matters that will have to be heard. In an effort to resolve this issue, judges from different regions will likely hear matters virtually in order to bring the court system back up to speed.
- We can expect to see an expansion of matters that that are being overseen by a case management judge.
- It is expected that eventually, there will be electronic scheduling platforms in place that will allow counsel to schedule attendances online.
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I recently read an interesting article by Helene Love titled “Seniors on the Stand: Accommodating Older Witnesses in Adversarial Trials”, that explored the intersection of age and its effects on witness testimony in trials. Helene’s article considers whether the legal and procedural rules that have been developed to ensure that only the most reliable evidence is used in a trial may disproportionately be excluding evidence from seniors. The paper assessed the risks associated with aging, as well as the practical and legal issues related to aging witnesses, and offered suggestions to accommodate senior witnesses within our current legal framework. I will summarize some of the key considerations below.
The objective of a trial is to discover the truth. Examinations of witnesses under oath allow the trier of fact to test the reliability of witnesses, making examinations during trial a fundamental aspect of the modern day trial. Interestingly, the basis for requiring live testimony of witnesses dates back to the 16th and 17th century trials by jury, whereby jurors were not prevented from relying on untrustworthy sources of information, and abuses of power were common. In order to enhance the reliability of trials and control the quality of evidence, judges created the requirement for witnesses to provide evidence in person. The reliability of a witness is typically assessed by a judge based on a witness’s ability to observe, recall, and then recount and event in the courtroom.
Reports indicate that within the next 20 years, the number of Canadians aged 65 years or older will double, meaning that there will be more senior citizens involved in the justice system. Given the significant increase in older persons acting as witnesses, there are a number of ways that aging can impact a witness’s ability to provide evidence during a trial.
Some of the risks associated with aging include:
- Attrition – depending on the complexity of a case, it can take months or even years to finally reach a trial date, meaning that there are increased chances that an older witness, particularly those over 80 years old, have an increased chance of dying before having a chance to take the witness stand.
- Changes to the Sensory Organs and the Brain with Age – biological changes to sensory organs and the brain can result in a decrease in perceptual acuity and gaps in memory.
- Mobility Issues – Health Canada reports that by age 75, 29% of men and 38% of women report at least one physical limitation, making it more difficult to attend court in person, particularly if that appearance is extended over a period of time.
- Strokes and Dementia – Individuals aged over 65 are ten times more likely to have a stroke, and individuals who have had a stroke are more than twice as likely to develop dementia. Dementia can involve a range of symptoms, including physical limitations such as limb stiffness to the most commonly known type of dementia, Alzheimer’s Disease. Individuals with cognitive impairments would not be competent to testify in a trial.
This begs the question, how can the legal system accommodate senior witnesses while maintaining accuracy and reliability as top priorities in the pursuit of the truth? I will address some of the main solutions proposed in the civil context (although there were a number of great alternatives proposed in the criminal context that I encourage you to read).
- Expedited trial scheduling or proceeding by way of summary trial. Although not discussed in this article, another possibility in Ontario may be to request a case management judge who can determine whether the case should be heard in an expedited manner.
- Obtain witness evidence at an earlier point in time through discoveries, pre-trial examinations, or affidavit evidence to be relied on at a later date.
- Use the principled approach to hearsay. The rule against hearsay states that earlier statements made by others outside of court are presumptively inadmissible because they were not made under oath, in the presence of the trier of fact and/or tested by cross examination. However, hearsay statements can be admitted for their truth if they are sufficiently necessary and reliable, as outlined in the leading Supreme Court of Canada case of R v Khelawon, 2006 SCC 57
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 In the 1692 Salem Witch Trials, 14 women and 6 men were executed on charges of witchcraft based entirely on supernatural visions that indicated the presence of witchcraft, the reliability of which went untested during the trial.
There’s a really good chance that if you live anywhere in the world that is not completely disconnected from the rest of society, you would have heard about COVID-19, and the fact that it has officially reached every single continent (except for Antarctica). The World Health Organization (WHO) has maintained that the containment of COVID-19 must be the top priority for all countries, given the impact it may have on public health, the economy and social and political issues.
Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems like high blood pressure, heart problems or diabetes, are more likely to develop serious illness.
In a statement released on March 4, 2020, the WHO indicated “although COVID-19 presents an acute threat now, it is absolutely essential that countries do not lose this opportunity to strengthen their preparedness systems.”
The value of preparedness is being played out in a Seattle suburb, where COVID-19 has spread to a local nursing home, resulting in a quarantine of residents and staff. In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues. Friends and family of residents in this Seattle facility are in an unenviable position, worrying about the health and safety of their loved ones and considering the gut-wrenching possibility that their loved ones might die alone. To read more about this issue, click here.
With the number of confirmed positive cases of COVID-19 on the rise in Ontario, I wonder how our long-term facilities are preparing to deal with an outbreak should one occur?
In the spirit of prevention, it is important to consider reducing the frequency of visits with our elderly loved ones, and spreading knowledge and information about hand-washing and other preventative measures.
For more information about COVID-19, click the links below:
Government of Ontario: https://www.ontario.ca/page/2019-novel-coronavirus
World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
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An important and useful tool in any estate planning toolkit is the ability to transfer title to real property between spouses, which typically occurs for nominal consideration and/or natural love and affection. These types of transfers are recognized at law. In certain circumstances, transfers of this nature may be used by spouses seeking to defeat, hinder, delay, or defraud creditors. The Fraudulent Conveyances Act (“FCA”) provides the legislative authority to set aside transfers of property that are entered into with the intent to defeat the claims of a creditor.
Such was the case in Anisman v Drabinsky, 2020 ONSC 1197. On September 11, 2015, Mr. Drabinsky and his wife, Ms. Winford-Drabinsky, transferred their joint ownership of their home to Ms. Winford-Drabinsky alone (the “Drabinsky Property”). At the time of said transfer, Mr. Drabinsky had several unpaid judgments against him as well as ongoing monthly debt payments that were nearly double his monthly income. One such judgment, dated November 2018, was in favour of the Plaintiff for monies owed by Mr. Drabinsky.
In an effort to recover monies owed to him, the Plaintiff obtained a Certificate of Pending Litigation against the Drabinsky Property. It was not until April 2019 that the Plaintiff testified that he learned of the transfer through a title search conducted on Mr. Drabinsky in preparation for his examination in aid of execution respecting the unpaid judgment. On June 18, 2019, some three years and nine months after the impugned transfer of title, the Plaintiff commenced an action seeking to reverse the transfer of title in the Drabinsky Property.
In his defence, Mr. Drabinsky argued that the transfer itself was not fraudulent, but that in any event, the Plaintiff’s claim was statute barred given that the 2-year limitation period provided for in the Limitations Act, 2002, SO 2002, c. 24 (“Limitations Act”) had expired.
In considering the validity of Mr. Drabinsky’s limitation defence, the court considered two key principles regarding limitation periods: discoverability of claims and the applicable statutory authority. With respect to the latter, the court considered whether it was the 2-year limitation period pursuant to the Limitations Act, or the 10-year limitation period in the Real Property Limitations Act (“RPLA”), that applied. The RPLA applies to actions to “recover” land. The question then became, does an action to set aside a conveyance of real property fall within the category of claims to “recover land”?
The court ultimately found that it was the 10-year limitation period in the RPLA that applied to the present action. In reaching its decision, the court relied on the case of Conde v Ripley, 2015 ONSC 3342, which found that claims made to set aside a conveyance of real property under the FCA are on their face, a claim to recover land. The court went further to say, “the Legislature has seen fit to… differentiate between actions involving recovery of land and other types of actions” given that the Limitations Act addresses claims in contract or tort, while the FCA addresses the recovery of real property.
However, as identified in this article, this line of reasoning contradicts earlier decisions that differentiated between the recovery of land itself and the recovery of debts connected to that land (see Wilfert v McCallum, 2017 ONSC 3853 and the Ontario Court of Appeal case of Zabanah v Capital Direct Lending Corp, 2014 ONCA 872), leaving the law in a state of uncertainty.
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The holidays are finally here! I must admit, I am a big fan of the holiday season and all that comes with it. From listening to Christmas carols, to sparkling lights, to sharing meals with friends and family, to exchanging gifts with loved ones – this season has it all. And while I am certainly on board with the spirit of giving, I am also cautious not to conflate it with the over-consumption and excess waste often associated with the holiday season.
In fact, this New York Times article reports that between Thanksgiving and New Year’s Day, Americans produce nearly 25% more waste than they usually do, which works out over one million extra tons of garbage each week.
Some of the lead contributors to this problem are food waste, tinsel, and traditional gift wrap that is pocked with glitter or coated with plastic. According to the article, on average, Americans discard 38,000 miles of ribbon, $11 billion worth of packing material and 15 million live Christmas trees. Yikes.
Since the holidays are about giving, I challenge all readers to give back to the environment by being critical of the way we celebrate the holidays and focusing on sustainability. Here are some helpful tips:
- If you are a last-minute shopper and still have gifts to buy, think local, small shops that support the local economy while emphasizing sustainability
- Wrap your gifts using raw recycled wrapping paper and some twine, or perhaps upcycle things you already have in your home
- Don’t throw out leftovers, ask family members to bring containers and take home as much as they can
- Try to make your own decorations using natural, bio-degradable items such as orange peels and popcorn
- Don’t use plastic cutlery to save time on the post meal clean-up (isn’t that why we have kids?)
- Separate your garbage, recycling, and compostable food items
It’s important to remember that every little bit helps, and less really is more. Taking the time to give back to our environment is a gift that costs you nothing, yet benefits so many living species as well as generations to come.
Wishing you all a happy, safe, and environmentally friendly holiday season.
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Recently, Stuart Clark blogged on the procedural differences between Applications and Actions in the context of civil litigation. In his blog, he aptly describes key differences between the two proceedings, which rests largely on the manner in which evidence is heard. Applications are determined on a written record, meaning that evidence before the court is contained in affidavits sworn by the parties in advance of the hearing date. In contrast, actions are heard by way of viva voce evidence (i.e. parties are examined, and cross-examined in open court).
As parties inch towards their final hearing date, the benefits and disadvantages of proceeding by way of application versus action may sharpen into focus. As Stuart noted, parties may decide that there are strategic benefits to converting their application into an action, such as having a sympathetic witness. Parties are free to take steps necessary to effect that change.
However, if parties don’t convert their proceedings in advance of their hearing, Judges have the discretion to convert applications to actions, and can order a conversion at the hearing of an application. In other words, if a Judge decides that justice would best be served by hearing a matter by way of trial, they can order the conversion of a proceeding at the hearing of an application.
Such was the case in Halar v Bacic, wherein the court determined that there were significant and material facts in dispute relating to capacity, and that a trial was necessary to assess the credibility of the witnesses.
In that case, a mother appointed her son and daughter to act as her attorneys for property and personal care in 2017. Following execution of the POAs, she was diagnosed with moderate Alzheimer’s disease and dementia. Shortly thereafter, the mother and her husband sold their home and moved back to Croatia. The proceeds of sale of their home were deposited in their Canadian bank account, with the understanding that the son and daughter would send money from the Canadian bank account when funds were requested by the mother.
The daughter and son ran into some conflict with respect to how the Canadian bank account was managed, resulting in the mother executing a new Power of Attorney in 2018, which raised questions regarding whether the mother had capacity to execute the new Power of Attorney.
The Judge was not satisfied that the medical evidence before him supported the position of the applicants and was not satisfied that he was in a position to make the findings and orders requested of him on the evidentiary record before him.
Ultimately, the Judge converted the application to an action and ordered that a trial be directed pursuant to Rule 38.10(6).
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On December 4, 2019, the Economic and Community Development Committee considered a proposal to improve senior services and long-term care in the city of Toronto, which is set to be considered by City Council on December 17, 2019.
The proposal is based on a Report from the Interim General Manager, Seniors Services and Long-Term Care which recommends ways to improve life for residents in long-term care facilities. The proposal sheds light on certain shortcomings of the current institutional model of long-term care facilities. Under the current system, after tending to basic care needs such as eating, bathing, and safety, and ensuring that they have met government mandated reporting requirements, staff are left with little free time. As a result, residents spend the majority of their days alone, without any form of genuine human interaction or purpose.
The proposal will revamp and hopefully reinvigorate the city’s 10 long term care homes by shifting the model of care to one that is emotion-centred. The key components of an emotion-centred approach to care would see increased staffing (with up to 281 new staff by 2025), more hours of care per resident per day, increased funding from the provincial government, and improved bedding.
More importantly, an emotion-centred approach emphasizes the emotional needs of residents, understanding that human connection leads to enjoyment of life. The new approach is based wholly and substantively on an understanding of ageing, equity, diversity and intersectionality.
If adopted, the city of Toronto will be the first to integrate diversity, inclusion and equity directly and comprehensively into an emotion-centred approach to care framework.
If you are interested in learning more, read this article from the Toronto Star. I also recommend reading this 2018 Toronto Star series called “The Fix” about a bold initiative to change care in a dementia unit in a Peel nursing home.
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The transfer of inter-generational wealth has long been a way for families to grow from one generation to the next. Many parents plan the transfer of their wealth at a time when their children are adults, and may be married with families of their own. And while in many respects the saying “what’s mine is yours, and what’s yours is mine” is true when it comes to marriage; it may not always be true when it comes to divorce. This is a key consideration for parents who wish to exclusively benefit their child with a gift or inheritance in the event of divorce.
The Family Law Act (“FLA”) provides guidance on how assets may be divided in the event of divorce. Section 4(2) states that property (outside of a matrimonial home) that was acquired by gift or inheritance from a third person after the date of marriage does not form part of that spouse’s net family property. Donors and/or testators may also expressly provide that income from said property is to be excluded from the spouse’s net family property. The FLA further provides that property (other than the matrimonial home) into which the gift or inheritance can be traced will also be excluded.
If a donor or testator’s intention is to have these assets excluded from a net family property calculation, it is encouraged that they formalize their intentions through proper deeds and/or wills.
Moreover, it is equally important for recipients of gifts and/or an inheritance to be mindful of where those assets are allocated upon receipt. For example, a recipient of a gift of money may want to be cautious of placing these funds in a joint bank account, where the assets may become commingled and difficult to trace.
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