Author: Doreen So

01 Dec

Rule 48.14 Interpreted! When will the Registrar Dismiss an Action for Delay? How Does it Apply to Estate Matters?

Doreen So Continuing Legal Education, Estate & Trust, General Interest, In the News, Litigation Tags: , , , , , , , , 0 Comments

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:

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  • 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!

Doreen So

 

29 Nov

Rule 48.14: Calculating the New “Best Before” Expiry Date

Doreen So Continuing Legal Education, General Interest, Litigation Tags: , , , , , , 0 Comments

In a prior blog, Suzana Popvoic-Montag blogged about the “Changes to Rule 48” and, specifically, with regard to the new dismissal of action for delay.

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):

  1. 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.
  2. 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.

Exjonmp7tpgkample 1:

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.

 

 

 

Example 2:

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.

Example 3:

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.

Thanks for reading and, for those of you nostalgic for the Vancouver 2010 Winter Olympics, click here for the opening ceremony highlights.  Also click here for a handy, online date calculator.

Doreen So

30 Sep

Canada Savings Bonds: Penny for Your Thoughts

Doreen So Estate Planning, Executors and Trustees, General Interest, In the News Tags: , , , 0 Comments

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.

Should Ottawa continue the 70-year old Canada Savings Bonds program?
“Finance Minister Bill Morneau is looking to hear from Canadians about whether Ottawa should continue the 70-year old Canada Savings Bonds program.”

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.

Doreen So

 

29 Sep

Back to Basics II: Where are the Beneficiaries?

Doreen So Estate & Trust, Estate Planning, Executors and Trustees, Trustees, Wills Tags: , , , , , 0 Comments

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.

Estate trustee's have an obligation to locate and notify the beneficiaries of an estate.
“Issues may arise when a named beneficiary is simply unknown to the estate trustee and the family…”

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.

Doreen So

27 Sep

Back to Basics: Is This Testamentary?

Doreen So Continuing Legal Education, Estate & Trust, Estate Planning, Wills Tags: , , , , , , , 0 Comments

Pursuant to section 2 of Part I of the Succession Law Reform Act,

“A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity…”

The interpretation of the term “will” is defined under section 1 of the Act to include,

Testamentary documents, what constitutes a valid will?
“A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity…”

“(a) a testament,

(b) a codicil,

(c) an appointment by will or by writing in the nature of a will in exercise of a power, and

(d) any other testamentary disposition.”

The question of what constitutes a will was a topic of the recent Law Society of Upper Canada Practice Gems: Probate Essentials 2016 program on September 20, 2016 (click here if you are interested in a copy of the program’s agenda).

As an example from the program materials, Canada Permanent Trust Co v Bowman, [1962] SCR 711 was a case in which the Supreme Court of Canada found a handwritten document in a cardboard box of the deceased’s home to be valid where, “read as a whole”, the document showed the implicit intention of a testator who wished for certain dispositions of her property following her death.  The document in question listed certain people with dollar amounts or items beside each name, such as, “Ena $1,000.00 in National Trust” and “Laura—fur coat”.

An even more famous example may be found in Ian Hull’s prior blog on the testamentary disposition that was carved on the bumper of a tractor by an unfortunate farmer while he was trapped under its weight.  The farmer did not survive and following engraving can be discerned from the bumper, “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”

Thanks for reading!

Doreen So

 

02 Sep

Till Death Do Us Part?

Doreen So Elder Law, Ethical Issues, General Interest, Health / Medical, In the News, News & Events Tags: , , , , , 0 Comments

CBC News recently reported on two cases of elderly couples who were forced to live apart in different care facilities in British Columbia.

William and Anita Gottschalk were forced to live apart after 62 years of marriage because the family could not locate a single facility that would accommodate their different levels of need.  William, 83, suffers from dementia and lymphoma and requires greater care than his wife Anita.  According to CBC News, William was recently transferred to a facility, blocks from Anita, to allow him to receive the care that he requires while he waits for an opening in Anita’s facility.  To date, they have been separated for eight months.

Alfred, 95, and Emma, 87, Sagert also found themselves in a similar position when Emma was no longer able to return to the facility that she shared with Alfred after suffering several small strokes.  The Sagert family did the best that they could to transport Alfred to Emma’s new facility “because they just needed to be together”.  Happily, Alfred and Emma were also reunited sometime this spring, although the family believes that Emma’s health diminished as a result of her loneliness during their separation.

BC (Fraser Health) officials advised that reunification of couples like the Gottschalks and Sagerts are a priority and that 92 couples have been reunited in the course of the past year and a half.  Interestingly enough the BC Community Care and Assisted Living Act, contains a Patient’s Bill of Rights which specifies a person’s right “to be treated in a manner, and to live in an environment, that promotes his or her health, safety and dignity”.

Hopefully it will be only a matter of time before the Gottschalks are reunited.

Thanks for reading.

Doreen So

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01 Sep

Feeney’s Canadian Law of Wills, 4th Edition

Doreen So Capacity, Continuing Legal Education, Estate & Trust, Executors and Trustees, General Interest, Trustees, Wills Tags: , , , , , , , , 0 Comments

I was reminded today by this insightful article by Bryan A. Garner, titled “10 Tips for Better Legal Writing”, that secondary sources are an important component of legal research.

In addition to the 5th edition of Probate Practice, Ian M. Hull and Suzana Popovic-Montag are also co-authors of the 4th edition of Feeney’s Canadian Law of Wills, along with James MacKenzie. Both of which were recently released.

The 4th edition of Feeney’s provides a straightforward commentary on the existing probate and estate administration regimes, in addition to in depth commentary on the applicable case law.  The 4th edition of Feeney’s is a resource that draws from statute and case law across all provinces of this country as well as the Commonwealth and the U.S.

As an example, the 4th edition of Feeney’s was recently cited in Vanier v. Vanier, 2016 ONSC 4620, for the following summary of the law on undue influence (at paragraph 10),

“In general, to establish undue influence, the burden of proof rests with the party alleging it.  The extent of the influence must amount to coercion; simple influence is not enough.  The testator’s free will must be overborne.  Put another way, it is not improper for any potential beneficiary to attempt to influence the decision of the testator provided the pleading does not amount to coercion and the latter continues to act as a free agent.  “Some begging is permissible.”  See Feeney’s Canadian Law of Wills, 4th at 3.10 to 3.14; Hall v. Hall (1868), L.R. 1 P. & D. 481.”

All 18 chapters of this loose-leaf are available for purchase here at the LexisNexis Online Store.

Thanks for reading.

Doreen So

Feeney's-Can-Law-of-Wills

 

30 Aug

Gene Wilder, dies at 83

Doreen So Estate & Trust, Estate Planning, General Interest, In the News, News & Events, Uncategorized Tags: , , , , 0 Comments

Gene Wilder, star of “Willy Wonka and the Chocolate Factory”, an iconic children’s movie, which is at its core a story about succession planning, died this week at 83 years of age.

The theme of succession planning also made an appearance in Wilder’s memoir, “Kiss Me Like a Stranger: My Search for Love and Art”, as excerpted from this New York Times article,

“What seems to be the trouble?” the therapist asks.

“I want to give all my money away,” he says.

“How much do you have?”

“I owe three hundred dollars.”

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In a public statement, Gene Wilder’s nephew, Jordan Walker-Pearlman, announced that Wilder died of complications from Alzheimer’s disease, a condition that was previously kept from public knowledge.  According to Variety, Walker-Pearlman explained that the decision to keep Wilder’s condition private was so that “the countless young children that would smile or call out to him as ‘there’s Willy Wonka’, would not have to be then exposed to an adult referencing illness or trouble and causing delight to travel to worry, disappointment or confusion”.   Despite his condition, Walker-Pearlman stated that Wilder never lost his ability to recognize those closest to him, nor did his condition take “command of his central-gentle-life affirming core personality”.

Wilder’s extensive acting career has led to an outpour of kind words and condolences from other celebrities on social media.

Thanks for reading.

Doreen So

23 Jun

500 Miles for Parkinson’s Comes to a Conclusion

Doreen So General Interest, In the News, News & Events Tags: , , 0 Comments

Last night, 500 Miles for Parkinson’s celebrated the completion of 500 miles by its participants. The party featured surprise guests and old friends with the proceeds contributing to the charity’s fundraising goal.

Three days ago, Harry McMurtry, Sue Thompson and Ross Sugar concluded their trek on foot to Toronto from New York. Each of them suffers from Parkinson’s disease. The event, known as 500 Miles for Parkinson’s, began on May 7th and ended on June 20th. They seek to promote awareness of the illness. road, pavement, highway, sunset, sky, clouds, outdoors, landscape, nature, fitness, running, runner, people, guardrail

Their aim was to raise $500,000 for research which would be divided by three charities: The Michael J. Fox Foundation for Parkinson’s Research, Morton and Gloria Shulman Movement Disorders Centre and The Edmond J. Safra Program in Parkinson’s Disease at the Toronto Western Hospital (led by Dr. Anthony Lang) and Mount Sinai Beth Israel Movement Disorders Center in New York (led by Dr. Susan Bressman).

Parkinson’s disease affects the brain’s ability to produce dopamine. This interferes with the body’s ability to move normally.

According to the CBC the charity raised $400,000 as of Monday. Harry McMurtry is the son of a member of our firm, the Honourable R. Roy McMurtry, OC, O. Ont, QC LSM,  and a good friend of Ian Hull’s.

If you wish to make a donation you can visit 500 Miles for Parkinson’s.

Thanks for reading!

Doreen So

21 Jun

The Legacy of Sarah Beth Therien: Canada’s First DCD Organ Donor

Doreen So Continuing Legal Education, Estate Planning, General Interest, Health / Medical, In the News Tags: , , , , , , , , 0 Comments

According to statistics posted on the Ontario Trillium Gift of Life Network website, there were a total of 1,546 persons waiting for an organ transplant as of June 20, 2016. According to beadonor.ca, 29% of Ontarians are registered organ donors, which is 3.5 million people out of an eligible population of 12.0 million.

I was touched when I read the recent commentary that was published by the Star, which was written by Beth and Emile Therien. Beth and Emile Therien are the parents of Sarah Beth Therien, who died 10 years ago and who revolutionized organ donation in Ontario.

G2ZSH1CZMNWhen Sarah Beth died, organ donation was only available when a person had been declared brain dead. According to Sarah Beth’s parents, such deaths only occur in 1 to 2% of hospital deaths and Sarah Beth did not fit into this category of donors.

However, Beth and Emile Therien knew that their daughter was not coming back and they knew that she believed strongly in organ donation. With the help of the Ontario Trillium Gift of Life Network and the Ottawa Hospital, Sarah Beth became Canada’s first organ donor whose organs were donated after the withdrawal of life support, which is otherwise known as donation after cardiocirculatory death (“DCD“).

Since Sarah Beth’s death in 2006, 1,067 transplants have been performed in Ontario with organs that were donated after cardiocirculatory death. According to Beth and Emile Therien, one third of deceased donors in Ontario, today, are DCD donors.

Here on our Hull & Hull website, we have published a Toolkit for Legal Professionals which includes precedent letters to assist legal professionals in advising their clients about organ donation. This Toolkit was developed by Ian M. Hull, along with Sam Marr of Landy Marr Kats LLP, in consultation with the Ontario Trillium Gift of Life Network.

I would also like to take this opportunity to encourage anyone who is interested in registration, or in learning more about this topic in general, to visit https://www.beadonor.ca/ and https://www.giftoflife.on.ca/en/

 

Thanks for reading,

Doreen So 

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