Author: Doreen So
Today’s blog was inspired by Karen Von Hahn’s article in The Globe and Mail about the memoir that she wrote on the subject of her late mother. What Remains: Object Lessons of Love and Loss appears to be a collection of chapters in which each chapter is focused on a different thing or object that reminded the author of her mother. According to Von Hahn, she used items, like her mother’s silver satin sofas and a pack of cigarettes, “as a starting point, lens and metaphor to talk about who she was”. Perhaps poignantly, Von Hahn wrote that “the first line of the book is that the last word my mother ever said to me was ‘pearls’”.
Given the importance that we may attach to our things (and the importance that our loved ones may correlatively attach to our things), those who are thinking about their estate plans may wish to include specific provisions in their Will with respect to the disposition of personal possessions on death.
In doing so, an attorney for property or a guardian of property will also be prohibited from getting rid of these specific items during the testator’s lifetime, if he/she knows that these items are subject to a specific testamentary gift in accordance with section 35.1 of the Substitute Decisions Act, 1992. That being said, section 35.1 of the Act also allows for the disposition of a specific testamentary gift if it is necessary to comply with the guardian’s duties, or if it is gifted to the person who would be entitled to it under the Will within the purview of an optional expenditure under section 37. Accordingly, specificity is key in this regard and it would appear that care should be given to describing the item with as many details as possible.
As Von Hahn wrote in her article,
“Like it or not, we read every book by its cover, and judge everyone we meet by their shoes. Which is why we live our lives engaged in a deep and meaningful relationship with both our possessions, and also those of whom we love.”
On that note, happy long weekend everyone!
Our firm attended the OBA Professional Development Dinner With Your Honourable Estates List Judges on April 5, 2017. The topic of the new practice advisory on video conferencing, and its intended use, was one of the topics that were discussed that evening.
This particular practice advisory is applicable only to 9:30 scheduling appointments on the Toronto Estates List and it was made in accordance with Rule 1.08 of the Rules of Civil Procedure. The new practice advisory is clear that, unless otherwise directed by the court, video conferencing is available in consent matters, unopposed matters, and scheduling matters. Parties or counsel who chose to appear by video conference must make their own arrangements and they may use CourtCall without prior Court approval. An appearance by CourtCall should be communicated to the Court in either the request or confirmation form filed for the appearance. As a matter of convenience, the Order, once issue and entered, will be sent to you by CourtCall.
For those who are interested, further details with respect to what CourtCall is and how it works are available on their website, https://courtcall.com.
Any other arrangements with alternative technologies for this purpose will require prior Court approval.
According to the Honourable Estates List Judges who were present during the Dinner, regardless of whether a matter is on consent or unopposed, video conference may still be less than ideal in situations where substantive relief is sought, such as an unopposed guardianship application.
For future OBA Trusts and Estates Law events like the Dinner, please check out the section group here.
Thanks for reading,
#TogetherWeAreStronger: The Merger of the Canadian Cancer Society and the Canadian Breast Cancer Society
According to The Globe and Mail, two of Canada’s largest cancer charities officially merged on February 1, 2017, being the Canadian Cancer Society and the Canadian Breast Cancer Foundation. This merger was reported to be a result of decreasing donations which threatened the continuation of decades-long research funding to hospitals and universities. The merger is designed to cut costs by eliminating overlapping operations between the two charities.
Since the merger, the new charity will operate under the name of the Canadian Cancer Society, and subsequent mergers with additional charities of similar purpose are already on the horizon. To paraphrase the Chairman of the Canadian Cancer Society, Robert Lawrie, a Toronto-based mergers and acquisitions specialist, informed The Globe and Mail that there are about 300 cancer charities in Canada with the similar cost and revenue challenges.
It turns out that more than 10% of the total annual funding for all cancer research in Canada comes from the Canadian Cancer Society and the Canadian
Breast Cancer Foundation. Decreasing donations to the Canadian Cancer Society have led the charity to dip into its reserve funds in order to cover program spending and operating expenses. Accordingly, it’s reserve fell from $151 million to $76.1 million between 2012 and 2016. Similarly, the reserve of the Canadian Breast Cancer Foundation fell from $36.1 million to $22.3 million between 2012 and 2016.
Donor fatigue and other competing causes (such as the Fort McMurray fire) were cited as possible reasons for the decrease in donations.
As an estate planning tip, it is always prudent to review Wills that were drawn up in the past to ensure that gifts to a charitable organization are properly named and that the intention of the testator remains the same notwithstanding the possibility that the operations of the named charity may have change over time. Otherwise, consideration should be given to whether the Will should be changed.
To donate to the new Canadian Cancer Society click here.
Thanks for reading this week!
I recently watched the documentary Finding Vivian Maier (which was originally released in 2013) and I was struck by John Maloof’s search for anyone who could tell him about who Vivian Maier truly was after her death. After her death, Vivian Maier (February 1, 1926 – April 21, 2009) gained fame as an American, Chicago-based, street photographer. During Vivian Maier’s lifetime, she was simply known to those around her as a nanny, and perhaps an eccentric with a camera around her neck.
Vivian Maier’s art was entirely discovered posthumously and it all began when John Maloof attended a local auction house in Chicago and bought 30,000 negatives for another project. In the course of considering whether the negatives were suitable for Maloof’s book on the history of the Northwest Side neighbour of Chicago, Maloof later became “obsessed with Vivian’s work, and made it his mission to reconstruct her archive”.
The documentary is a chronicle of Maloof’s mission to reconstruct her archive (and of Vivian Maier, herself), including how he found records of her birth from a New York City archive and how Maloof ended up in an remote village in France where her mother’s family lived.
Vivian Maier died unmarried and childless and, as it turns out, intestate.
According to the Chicago Tribune, a Virginia copyright lawyer and former professional photographer named David Deal became concerned that people were selling Vivian Maier’s photographs in manner that infringed copyright law. David Deal used the information that he learned from Maloof’s chronicles to locate one of Vivian Maier’s first cousins once removed. In 2014, David Deal became counsel to Francis Baille in a court case where Mr. Baille asked the probate court to name him as an heir to the Estate of Vivian Maier. Apparently, the information that David Deal used was the story of how Maloof had located another first cousin named Sylvian Jaussaud by hiring genealogists. As Maloof’s story goes, he bought Sylvian Jaussaud’s rights to Vivian Maier’s work for $5,000.00. Ultimately, Mr. Baille’s court case, which involved John Maloof and the Cook County public administrator’s office (the county where Vivian Maier died), settled under private terms that are sealed from the public.
In Ontario, where a person dies without a will, and there is no surviving spouse, children, parent, brother or sister, the property shall be distributed among the nephews and nieces. If there are no surviving nephews and nieces either, “the property shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation”. If there are no next of kin either, the property becomes the property of the Crown, and the Escheats Act, 2015 applies”.
Thanks for reading (and watching)!
Mary Kills People is a brand new Canadian television show starring Caroline Dhavernas. Mary Kills People is a fictional show which centers around Dr. Mary Harris, an ER doctor who engages in assisted suicide. The series premier took place on January 25, 2017. According to this Toronto Star interview with the show’s writer, Tara Armstrong, Tara came up with the idea for the show while she was at the University of British Columbia.
As you may be aware from our blog, by reasons dated February 6, 2015, the Supreme Court of Canada found the criminal code prohibitions against physician assisted suicide to be unconstitutional. This landmark decision originated in proceedings before the British Columbia Supreme Court. In 2011, the Plaintiffs in Carter v. Canada (Attorney General), amongst other evidence, put forth 13 affidavits from individuals who wished to have the option of assisted suicide. The Plaintiffs also sought to admit additional witness evidence, on an anonymous basis, from a person called “L.M.” who swore an affidavit which set out the circumstances in which his terminally ill father had ended his own life with the help of his physician and how L.M., his sister, and his sister’s physician assisted L.M.’s terminally ill mother in ending her life. In an order to protect L.M.’s identity the Plaintiffs’ also sought procedural relief which would allow L.M. to be cross-examined and/or testify behind a screen. However, this relief was rejected by the Hon. Madam Justice Smith at first instance and L.M.’s evidence was not a part of the trial record. See Carter v. Canada (Attorney General),  B.C.J. No. 1897, for this particular evidentiary ruling.
While I have not seen the show (yet), and I am not aware of the inspiration or research behind the show, it will be fascinating to see if and how the role of the Courts and judicial reform will be featured on Mary Kills People.
Click here for the Season 1 teaser of Mary Kills People.
Happy reading (and watching)!
As previously blogged about by Natalia Angelini, the All Families are Equal Act was introduced on September 29, 2016 and it was unanimously passed by the Ontario legislatively assembly on November 29, 2016.
We encourage those interested in this new Act to click here for the Ministry of Attorney General Newsroom release. According to the Ministry,
“The new law will:
- Provide greater clarity and certainty for parents who use assisted reproduction to conceive a child
- Provide a streamlined process for the legal recognition of parents who use a surrogate, together with requirements meant to protect the rights of all parties through independent legal advice and confirmation of the surrogate’s consent both before conception and after birth
- Reduce the need for parents who use assisted reproduction to have to go to court to have their parental status recognized in law.”
Thanks for reading!
Rule 48.14 Interpreted! When will the Registrar Dismiss an Action for Delay? How Does it Apply to Estate Matters?
As recently as November 25, 2016, the Associate Chief Justice of the Superior Court, the Hon. Justice Marrocco, released a written endorsement in Daniels v. Grizzell, 2016 ONSC 7351, interpreting portions of Rule 48.14 since administrative dismissals may now occur from and after January 1, 2017.
The Registrar will Not Dismiss for Delay When…
According to the Hon. Justice Marrocco, “the Registrar will not dismiss an action for delay if the following events take place at least 30 days before the expiry of the applicable period:
- a party files a timetable signed by all the parties; and
- a party files a draft order establishing the timetable;
In addition, if a consent timetable signed by all the parties, and a draft order is filed, the Registrar shall not dismiss the action pursuant to Rule 48.14.”
Motion for Status Hearing and Motion to Set Aside the Dismissal
If the parties are unable to reach a consent, a motion for a status hearing may brought before the expiry of the applicable period pursuant to Rule 48.14(5). The Hon. Justice Marrocco clarified that “the Registrar shall not dismiss the matter until the motion is heard even if the matter is heard after the dismissal date prescribed by the Rule.”
Moreover, “the dismissal of an action by the Registrar can be set aside under Rule 37.14”.
Rule 48.14 Does Not Apply to Applications and Applications Converted to Actions
As it pertains to those of us engaged in estates, trusts, and substitute decision making matters, Rule 48.14 “does not apply to proceedings commenced by an application. Accordingly, estate matters which are commenced by way of an action are subject to the Rule; estate matters commenced by application are not. For practical reasons grounded in the coding of actions and applications in the court’s information management system, the application of Rule 48.14 is determined at the time the proceeding is commenced. For the same reason, applications which are converted to actions are not subject to Rule 48.14.”
Thank you for reading!
The phrase “the expiry of the applicable period” is repeated in the various subrules to Rule 48.14 and we want to take this opportunity to illustrate the meaning of this particular phrase. This phrase is important because it pertains to when an action may be automatically dismissed by the Registrar pursuant to Rule 48.14(1).
Essentially, going forward, actions are given five years from the date of commencement before they may be dismissed for delay by the Registrar. “The expiry of the applicable period” is the expiration date that is referred to in Rule 48.14(1), in which,
48.14 (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
- The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.
- The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the later of the second anniversary of being struck off and January 1, 2017.
The expiry of the applicable period for an action commenced on the date of this blog, i.e. November 29, 2016, will be November 29, 2021.
The expiry of the applicable period for an action commenced on the date Rule 48.14 came to force and effect, i.e. January 1, 2015, will be January 1, 2020.
The expiry of the applicable period for an action commenced on the date the Winter Olympic games began in Vancouver, i.e. February 12, 2010, will be January 1, 2017.
This is the case because January 1, 2017 is later than the fifth anniversary of an action commenced on February 12, 2010, whereas the fifth anniversary of the commencement dates in examples 1 and 2 are later than January 1, 2017.
Therefore, it is extremely important to keep in mind that any actions commenced before January 1, 2012 may be dismissed by the Registrar on January 1, 2017.
Finance Minister Bill Morneau is looking to hear from Canadians about whether Ottawa should continue the 70-year old Canada Savings Bonds program. According to the Globe and Mail, the value of the bonds has fallen dramatically from $55-billion in 1987 to $6-billion in 2015.
The official history of the Canada Savings Bond (the “Bond”) program began when the bonds were introduced as War Savings Certificates and Victory Bonds in order to fund Canada’s involvement in WWI and WWII. The Bond was launched with its current name in 1946 along with the original Payroll Program. The Bonds were purchased through payroll deductions, and up to 16,000 employers participated in this plan in 1946.
In 1998, a similar product known as the Canada Premium Bond was introduced with a higher interest rate, and the feature of being redeemable once a year.
In their present form, the Bonds are offered exclusively through the Payroll Savings Program, while the Canada Premium Bond is available through financial institutions, dealers and by phone.
The Bond is generally described as a safe and secure savings product. For more information about this Government of Canada program please visit www.csb.gc.ca
Thanks for reading and have a safe and secure weekend.
As a second part to Tuesday’s blog, our very own Ian Hull was also a presenter at the recent Law Society of Upper Canada Practice Gems: Probate Essentials 2016 program on September 20, 2016. Ian and our associate, Laura Betts, wrote a paper on various issues surrounding the obligation to locate and notify the beneficiaries of an estate and what may be done when a person cannot be located.
These issues may arise when a named beneficiary is simply unknown to the estate trustee and the family, or they may arise when a class of beneficiaries are named and the exact identities of the deceased’s “cousins”, for example, may be unknown.
In a previous blog, Laura has outlined the obligation of an estate trustee to identify the beneficiaries of an estate with tips on how an estate trustee may conduct his/her “reasonable inquiries”.
As a tip for will drafting solicitors, Ian Hull suggested during the program that it will be helpful to include the known occupation and location of a beneficiary on the face of the will (e.g. Doreen So, lawyer, City of Toronto).
The Ontario Office of the Registrar General may also be a helpful resource to estate trustees as it is responsible for issuing birth, death, and marriage certificates in Ontario.
Thanks for reading.