Author: Doreen So
This week on our podcast Stuart Clark and I discussed the statutory Residents’ Bill of Rights that is within the Long-Term Care Homes Act, 2007.
The importance of this Act should not be overlooked by anyone who is has a loved one in a long-term care home. Section 3 of the Act gives rise to enforceable rights as between the resident and the care home as if they have entered into a contract where the home has agreed to fully respect and promote 27 enumerated residents’ rights.
As an example, the first 4 rights are:
- the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity;
- the right to be protected from abuse;
- the right not to be neglected; and
- the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
While it may be difficult to determine what the Residents’ Bill of Rights means in day-to-day reality, it is a meaningful starting point for any advocate.
An important resource is the government of Ontario’s Guide to the Long-Term Care Homes Act, 2007 and Regulation 79/10, which is available for download here.
Thanks for reading and listening!
Another will challenge was before the Court of Appeal this month on February 5, 2019. Reasons for the panel, comprised of Pepall, Trotter, and Harvison Young JJ.A., were released in writing on February 13th. Quaggiotto v. Quaggiotto, 2019 ONCA 107, can be found here.
The issue of validity was solely focused on a codicil that was executed by Maria Quaggiotto when she was 87 years old. The codicil left the residue of her estate to one son, Livio, while her will had previously left an equal division of the residue to both of her sons, Livio and Franco.
After a 10 day trial, Justice Rogin found that the codicil was valid.
On appeal, the challenger Franco sought to overturn various findings of fact and findings of mixed fact and law.
Ultimately, the panel upheld the decision of Justice Rogin.
The panel reaffirmed the Court of Appeal’s decision in the Orfus Estate with respect to the notion that testators are not required to have “an encyclopedic knowledge” of their assets in order to satisfy the test for testamentary capacity.
Interestingly enough, the Court of Appeal found that the trial judge was sufficiently alive to corroboration requirements of section 13 of the Ontario Evidence Act even though Justice Rogin’s decision would appear to have erroneously cited section 13 of the Ontario Estates Act for this important statutory requirement. The adage “form over substance” did not hold water in this appeal given that the actual legal requirement was adequately considered by Justice Rogin.
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It is that time of the year when media outlets release their “top” or “most popular” lists, like the Time 100.
I came across a rather interesting and topical list the other day called “The Most Obnoxious Celebrity Wills” by Ranker. This particular list features 24 celebrity Wills and I will excerpt some of the notable mentions here:
- Napoleon Bonaparte’s Will was first on the list. Apparently, his Will included a direction for his head to be shaved and for his hair to be divided amongst his friends.
- Harry Houdini asked his wife to hold an annual séance to contact his spirit.
- Philip Seymour Hoffman wanted his son to be raised in three different cities: New York, Chicago, and San Francisco.
- Charles Dickens gave directions for a particular dress code at his funeral.
- Fred Baur, the person who designed the Pringles can, wanted to buried in a Pringles can.
Turns out testamentary freedom is whatever you want to make of it but the enforceability of provisions like these are another matter.
Thanks for reading and Happy Holidays!
Humans are social beings. Some of us enjoy interacting with others, with animals, with virtual reality experiences, or all of the above!
I read a heartwarming story recently from the New York Times which featured a robot caregiver for the elderly named Zora. Zora was introduced to a nursing facility outside of Paris and she was rather well received.
The residents of this particular facility have dementia and other conditions that require twenty-four hour care. Zora can converse with the residents through the assistance of a nurse who types on a laptop for the robot to speak. Many residents formed an attachment to Zora and even treated the robot like a baby.
According to the makers of the Zora robot, it is the first robot in the world that takes care of people.
While a robot may not be able to replace the tender, love, and care of one’s family, it is easy to believe that a robot can make any one’s imagination wander, stimulate play, and even be a friend.
I say that as someone with very fond memories of Toy Story. The first Toy Story came out in 1995 and Toy Story 4 is about to be released in 2019 if you want to check out the trailer here.
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Text messaging is an increasingly popular method of communication.
Even though a text may take less than 30-seconds to write and they are often intended to be causal communications as opposed to letters or e-mails, they are still a record of our written communications with one and other.
In a recent family law matter from Saskatchewan, the court was asked to consider the admissibility of a mother’s text messages with her child’s father in the context of a dispute about their parenting schedule.
The texts were downloaded from the mother’s phone to her computer using a computer application called “Decipher Text”. The computer application then generated a print out of the parties text messages which “appears as many single spaced tightly grouped lines with a code at the beginning of each line and what appears to be text message communications placed at the end of the code” (at para. 7). Since the document is a printout of an electronic record, the court considered whether the electronic record meets the requirements of the Saskatchewan Evidence Act. Ultimately, the printout was found to be inadmissible because the mother failed to introduce affidavit evidence about how the printout accurately and completely depicts the parties’ communications as well as how “Decipher Text” actually works.
The crux of the problem was best described at paragraph 19:
Here the link between the smart phone text message and the form of evidence filed to prove that text message – the Decipher Text printout – is lacking. The intermediary here is a printout that is not a screen shot but is instead a computer rendering of some sort, filtered and formatted through the Decipher Text computer program/application. This intermediary program, or application, is not explained in any of the affidavits nor so commonly understood presently that it is possible to take judicial notice of what happens between the electronic record, here being the text messages, reaching the smart phone and that subsequently being converted into the printout attached. Thus a gap exists regarding authentication here.
In Ontario, section 34.1 of the Evidence Act, RSO 1990, c E. 23 governs the admissibility of electronic records in so far as it relates to the issue of authentication and best evidence rule. Like Saskatchewan, section 34.1(4) provides that the person seeking to introduce an electronic record has the burden of proving its authenticity.
Sylvestre v. Sylvestre, 2018 SKQB 105 (link here), is well worth the read for any litigator in today’s day and age. It is also well worth having in your arsenal of case law regarding how judicial notice may be given to other ways of presenting electronic evidence such as the screenshot.
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A recent decision from the Royal Court of Jersey was recently discussed here with respect to a beneficiary’s right to disclosure from a trust. This blog by lawyers from Ogier is an insightful read on this particular area of trust law.
According to the authors at Ogier, M v W Limited and Others was a case that considered a beneficiary’s broad request for documents, such as copies of all trust instruments, latest accounts, financial statements for the corporations owned by the trust, and details about all past distributions from the trust. While Court’s decision was grounded in an interpretation of the relevant Jersey legislation, some of its commentary remains instructive for those of us who practice outside of Jersey.
In M v W Limited and Others, the nature and immediacy of the beneficiary’s interest is salient to the inquiry. For example, a contingent beneficiary may not be entitled to as much disclosure as a beneficiary who is entitled to the assets of the trust at that point in time. By extension, it is also relevant to consider whether the disclosure at issue would negatively affect another class of beneficiaries as well as the proportionality of the request.
As for the law in Canada, I have blogged on a recent Supreme Court of Canada decision about a trustee’s duty to disclose the existence of a trust to the beneficiaries. Justice Brown for the majority in Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8, has stated the following at paragraph 19,
“In general, wherever “it could be said to be to the unreasonable disadvantage of the beneficiary not to be informed” of the trust’s existence,  the trustee’s fiduciary duty includes an obligation to disclose the existence of the trust.”
This notion of whether a beneficiary would be unreasonably disadvantaged by the non-disclosure is important to keep in mind because the right to disclosure is grounded in a beneficiary right to hold trustees accountable and to enforce the terms of the trust.
Practically speaking, issues of disclosure often leads to a request for the trustee to commence an application to pass accounts. While the trustee will have the benefit of a court order approving his/her administration for that period (if and when Judgment is obtained), an application to pass accounts must be served on all beneficiaries with a contingent or vested interest pursuant to Rule 74.18 of the Ontario Rules of Civil Procedure. In turn, these beneficiaries will have the right to object to the trustee’s accounts and seek relevant disclosure from the trustee in the course of this process.
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The Estate of Irmgard Burgstaler (disability), 2018 ONSC 472, was a costs decision that arose from an application to pass attorney accounts. Erwin was named as the attorney for property for his mother, Irmgard. Erwin was ordered to pass his accounts and his siblings, Barbara and Peter, objected.
A four-day hearing took place. Erwin was self-represented and his accounts were not in court format pursuant to Rule 74.17 of the Rules of Civil Procedure. Extensive written submissions were also filed by both sides.
Erwin was found to have breached his fiduciary duty to Irmgard when $82,000.00 was taken from Irmgard and applied towards the purchase of a home in Erwin’s name. Erwin also took approximately $44,000.00 from his mother’s accounts to pay his legal fees in the proceeding at issue and the Court found that this expense was not for Irmgard’s benefit. Certain other expenses were ordered to be repay to Irmgard as well as the repayment of $5,000.00 from the sale of Irmgard’s trailer.
Given their success, the Objectors sought full indemnity on a blended basis from Erwin (15%) and the Estate (85%). In reviewing the jurisprudence on costs in estate matters, Justice Shaw found that this case fell within the public policy exemption for due administration of estates and allowed the Objectors’ claim for full indemnity.
That said, Justice Shaw disagreed with the Objectors’ proposed 15/85 split on the basis of the “losers pay” principle in general civil costs. Justice Shaw ordered Erwin to pay the Objectors’ costs on a partial indemnity scale while the Estate was ordered pay the full remaining balance. In this case, partial indemnity appears to be close to 70% of the total claimed based on the fixed amounts that were ordered.
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The Globe and Mail recently published an article on couples that live apart from each other. This particular article focuses on the story of a couple who has never shared a home in the course of their twenty-year relationship. This couple is not alone; approximately 1.9 million unmarried adults in Canada were in an intimate relationship with someone who occupies a separate residence in 2011.
This form of intimate relationships are considered to be a historically new family form. Sociologists have coined this phenomenon as “LAT couples“, i.e. couples that are living apart together.
While the article focuses on couples who are deliberately choosing to live apart, there are also external factors that may prevent a couple from living together (such as immigration or capacity issues where one spouse has greater care needs than the other spouse).
LAT couples raise an interesting question with respect to whether such couples would be considered as a “spouse” within the meaning of Part V of the Succession Law Reform Act for the purposes of dependant’s support. Pursuant to section 57 of the SLRA, the word “spouse” has the same meaning as section 29 of the Family Law Act.
Section 29 of the Family Law Act in turn defines the term spouse as,
- people who are married to each other;
- unmarried people who have cohabited continuously for a period of not less than three years; or
- unmarried people who are in a relationship of permanence if they have children.
Interestingly, the Ontario Court of Appeal has made the following comment in Stephen v. Stawecki, 2006 CanLii 20225:
“the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting”.
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The Ontario Court of Appeal recently considered the issue of whether the litigation files of the Office of the Children’s Lawyer are subject to a freedom of information access request in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 599. This appeal arose from a father’s request for the production of the Children’s Lawyers’ records. The Children’s Lawyer acted for the father’s children in the course of a custody and access dispute. Accordingly, a portion of the Children’s Lawyer’s records were privileged.
Justice Bennotto, in writing for a unanimous panel, found that the issue turned on whether the records are “in the custody or under the control” of the Ministry of the Attorney General for Ontario (“MAG“) for the purposes of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F. 31.
The answer was no.
The Children’s Lawyer’s records are not in the custody or under the control of MAG because she operates separately and distinctly from MAG and,
“ [she] is an independent statutory office holder appointed by Cabinet through the Lieutenant Governor. She derives her independent powers, duties and responsibilities through statute, common law and orders of the court.
 To allow a disgruntled parent to obtain confidential records belonging to the child would undermine the Children’s Lawyer’s promise of confidentiality, inhibit the information she could obtain and sabotage her in the exercise of her duties. This would, in turn, impact proceedings before the court by depriving it of the child’s voice and cause damage to the child who would no longer be meaningfully represented. Finally, disclosure to a parent could cause further trauma and stress to the child, who may have divided loyalties, exposing the child to retribution and making the child the problem in the litigation.”
For those practising in the estates and trusts context, it is important to note that the role of the Children’s Lawyer is different in family law.
In civil matters that implicate a minor’s financial interest in property, the Children’s Lawyer acts as the minor’s litigation guardian and she is represented by the lawyers of her choice. In custody and access disputes, the Children’s Lawyer acts, at the request of the court, as the minor’s lawyer.
Bonus answer: the current Children’s Lawyer is Marian Jacko.
Thanks for reading this week!
In Michael v. Thomas, 2018 ONSC 3125, Justice Ramsay awarded a dependant support claimant the entirety of the Estate net of all debts and liabilities. The dependant support claimant in this case was a common law spouse of approximately 20 years. Ms. Michael was in her late-fifties/early sixties when Mr. Chambers died suddenly from cancer without a will.
Mr. Chambers and Ms. Michael were not married at the time of Mr. Chambers’ death. Accordingly, Ms. Michael was not a beneficiary of Mr. Chambers’ Estate pursuant to the rules of intestacy. Mr. Chambers did not have any children either so the beneficiaries of his Estate were his surviving siblings and two nephews who were the sons of his predeceased sister.
Justice Ramsay found that Mr. Chambers and Ms. Michael lived modestly during Mr. Chambers’ life. They were joint owners of their home, which Ms. Michael received by right of survivorship. The home was subject to a mortgage of about half its market value in the amount of $150,000.00. Ms. Michael was also the beneficiary of a modest $80,000.00 life insurance policy and her income became supplemented by an additional $3,325 per month through the deceased’s CPP and pension benefits. Ms. Michael worked part-time and has two adult children of her own. Interestingly, Justice Ramsay commented that Ms. Michael should not have to seek support from her adult children under the Family Law Act (even though she could, theoretically) before seeking support from Mr. Chambers’ Estate.
In considering the Respondent’s case, Justice Ramsay found that Mr. Chambers did not have any other dependants and that he was estranged from the only party who responded to Ms. Michael’s claims in Court. Mr. Chambers’ sister argued that Ms. Michael already received $203,965 out of the assets of the Estate, which, including section 72 assets, were worth a total $285,000. She further argued that Ms. Michael would be able to maintain the same standard of living that she used to enjoy if Ms. Michael supplements the pension income by working full-time at minimum wage. In his analysis, Justice Ramsay squarely stated as follows:
 I do not agree. It is not reasonable to expect the Applicant to take an entry level job at the age of 62 when she is already past the point of being able to sustain full time physical labour, even light physical labour. Even if it were possible, it would only raise her earnings to the low $40,000 range, which would still not be enough to continue the modest standard to which she was accustomed. I do not think that the intestate made adequate provision for the proper support of the Applicant.
 The estate is not big enough to make periodic payments. In fact it is not big enough to provide the proper support the Applicant needs. I think that a judicious spouse would have left her the entire estate, such as it is. The Applicant is the only dependant and the only person with any moral claim on the estate. Accordingly I order the trustee to convey to the Applicant the entire residue of the estate after payment of taxes, debts of the estate and his own fees and I declare that the amounts already received or already in the Applicant’s possession are hers to keep.
Ms. Michael was also awarded partial indemnity costs from Mr. Chambers’ sister. Mr. Chambers’ sister was found to have no need for “more found money” from Mr. Chambers’ Estate because of the inheritance that she received from their mother, and that costs from the Estate would have the same effect as awarding costs against Ms. Michael.
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