Author: Ian Hull
No, we are not referring to the 1979 film featuring Dustin Hoffman and Meryl Streep, but a far more recent (but nonetheless interesting) legal dispute involving an application to pass accounts, suspicious activity on behalf of an Attorney for Property, and the resurgence of the equitable defences of laches and acquiescence.
A complex series of facts is present in the Estate of Ronald Alfred Craymer v. Hayward et al, 2019 ONSC 4600: two Attorneys for Property, six marriages, seven children, thirty years of estrangement between Ronald and his four children, and virtually no financial records for the period during which the first Attorney for Property oversaw the affairs of her incapable husband’s estate.
The cruxes of the dispute are that the first Attorney for Property (Joan, Ronald’s wife) transferred the title of the matrimonial home to herself, she kept scanty financial records, and the value of her assets (over $1 million) dwarfed that of her late husband’s (around $35,000). When Joan died suddenly, John Craymer (Ronald’s son, the plaintiff) applied for a passing of accounts and the second Attorney for Property (Linda, Joan’s daughter) was left in the unenviable position of potentially having to answer for the conduct of her late mother in relation to accounts of which she, Linda, had no knowledge.
Under section 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, the Court may order a passing of accounts. In considering whether to do so, it should examine “the extent of the attorney’s involvement in the grantor’s financial affairs and second whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs” (McAllister Estate v. Hudgin, 42 E.T.R. (3d) 313 (ONSC), at para 13). Since section 42 carries a high threshold, and Linda was not responsible for her mother’s conduct, the Court did not grant the application. In its reasons, moreover, the Court found fault with the transfer of the home, but given the marital relationship between grantor and attorney, it did not attach much weight to the scantiness of detailed accounts.
Noteworthy in this case is the Court’s consideration of the equitable doctrines of laches and acquiescence in the context of a motion for a passing of accounts (in which, in Ontario, there is no limitation period). In determining whether these defences apply, the Court looks at the length of the delay and the resulting prejudice. Neither of these components were applicable here, for when John learned of the value of his father’s estate as well as the transfer of the home into Joan’s name, he acted promptly. Instead, his application was dismissed on the Court’s discretion.
Thank you for reading.
Ian Hull & Devin McMurtry
With the enactment of Rule 75.1 of the Rules of Civil Procedure, those involved in disputes relating to an estate, trust or substitute decision-making matter in Toronto, Ottawa or the County of Essex are referred to mediation unless there is a court order exempting it under Rule 75.1.04.
As lawyers, “mediation” is a term we are familiar with. However it may not be as familiar to clients. Many of them may have never heard of “mediation” before. As such, if you or a client have an upcoming mediation, it is important to prepare early to avoid being caught off guard during the mediation.
What is Mediation?
Mediation is a form of alternative dispute resolution where people can settle their disputes outside of court. It is a voluntary process in which the parties meet with a neutral third-party (referred to as the “mediator”) who provides them with assistance in negotiating a settlement. The mediator does not impose a judgment as the process is led by the parties.
Mediation vs. Litigation
The big “pull factor” to mediation is that it vastly differs from litigation. The major differences include:
- Decision-Making: With mediation, the parties decide the outcome but with litigation, a judge imposes his or her decision upon the parties
- Private vs. Public Process: Mediation is a private and confidential process, whereas litigation is a public process
- Costs: The costs of mediation are typically lower than that of litigation
- Time: The mediation process tends to be faster than litigation
- Adversarial vs. Non-Adversarial: Mediation is viewed as a non-adversarial process, whereas litigation is viewed as an adversarial process
Preparation for Mediation
Preparation for mediation should start well in advance of the mediation date.
Preparing the Client
Start by explaining to the client what mediation is and how the process works. Assure the client that the mediator will be a neutral facilitator and that abusive behaviour by the other party will not be tolerated.
As part of discussing the mediation process with the client, let the client know about the time commitment that mediation entails. The mediation could last the entire day or even multiple days.
Determine the client’s interests and goals for the mediation. Are they looking to settle the case at mediation or are they prepared to go to trial? What types of offers would they be willing to accept?
Preparation for the Lawyer
Know the mediator’s background and approach beforehand. Is the mediator someone who has a background in estates law? Are they a lawyer? Are they a former judge? Knowing the answers to these questions can help the lawyer determine what approach would be the most beneficial to employ during mediation.
Prepare a comprehensive mediation brief and send it to the opposing counsel and mediator well in advance of the hearing date. A comprehensive mediation brief can maximize a lawyer’s presentation at the mediation. It is helpful to include copies of all relevant documents, such as the wills in question, within the brief. Additionally, it might be helpful to include a chronology of events as a schedule to the mediation brief.
If the mediation results in a settlement, ensure that the terms of the settlement are formally documented and that each client has signed the document. In some cases, however, a “cooling-off period” of one or two days from the proposed settlement might be necessary.
At the end of the day, the best approach a lawyer can take in preparing for mediation is to know the mediator, prepare their documents ahead of time and provide the client with as much information about the mediation process as possible. The more prepared the lawyer and the client are, the smoother the mediation will go.
For more information on preparing your client for an estate mediation, visit this link.
Thanks for reading,
Ian Hull & Celine Dookie
The Olympics seemed a lot simpler when Montreal hosted the summer games in 1976. Yes, there were some bizarre sports that seemed better suited to ancient Greece (hammer throw anyone?). But at least these bizarre sports were ones we knew well from previous games – and we were very familiar with most of the other stuff (like cycling, rowing, swimming, and running).
Times have changed
While many sports have been added and dropped from the modern Olympic games over the years, some new additions for 2020 certainly catch the eye – namely sport climbing, surfing, and skateboarding.
All of these sports have been added to the exclusion of a sport – played by 20 million people worldwide – that has been working to be recognized as an Olympic sport for decades: squash.
The most recent pitch by the World Squash Federation was for squash to be included in the 2024 games in Tokyo – and it was confident that it had met all the criteria. But in February, the International Olympic Committee chose another sport to be added instead of squash: breakdancing.
You can read about the reaction of the squash community here. In short, they were stunned. Millions play the game, television coverage has increased, and it’s recognized as one of the most demanding sports to play.
But Olympic organizers have stated that their agenda is more youth-focused and more urban, which is why skateboarding and breakdancing are in and squash is out.
On the one hand, I get it. Squash has an elitist history (there was a squash court on the Titanic, available to first class passengers) and it’s mostly played in expensive clubs. Breakdancing and skateboarding are available to all, for next to nothing in cost. And they are fun to watch too.
On the other hand, if the Olympics continues to include even more elitist sports like equestrian, it seems unfair to exclude an individual sport that has a storied history, gender balance, and active youth programs worldwide.
I look forward to watching the skateboarding and breakdancing competitions in coming Olympic games. Don’t get me wrong. But I’ll shed a tear for a sport I think deserves a place on the podium as well.
Now, if we could just get rid of that hammer throw…
Thanks for reading!
Ian M. Hull
I love people who make predictions – especially when it’s in their area of expertise. They aren’t always right of course, but you at least benefit from some “best guesses” by people who work in the area.
The Huffington Post published an article a few months ago by realtor Nathan Dautovich about what’s ahead for the Toronto housing market in 2019. Check it out here.
It contains the usual forecasts for housing and rental prices, which are always useful to learn. But what struck me were a couple of predictions – one for the present, one futuristic – for adding housing stock to a crowded city that’s still growing.
- Laneway housing
Did you hear about this? I hadn’t. Last year, Toronto adopted a new policy allowing laneway housing in what are essentially the old city of Toronto and East York areas. This presentation provides a great overview of the concept.
A laneway house is a detached secondary building that remains under the same ownership as the main house. More like a coach house than a full house, they’re intended for rental housing, such as for family members (adult children or aging parents) or others. The goal is to increase city density and the supply of low-rise neighbourhood-oriented rental stock. Rental income can also help owners of the primary home with mortgage and other costs.
The article suggests that innovative companies may be knocking on the door of homeowners, offering to design, develop, and finance a laneway house. So, get ready for that “knock” if you own a home on a laneway in Toronto.
- Islands off the coast of Toronto
The Huffington Post article notes that most of the land south of Front Street used to be under water – so there is precedent for “adding land” to our shoreline. Today, look no further than the Leslie Street spit, which continues to grow. So how about some housing islands off the eastern or western banks of Toronto? A little imagination could go a long way. We already have island housing on our existing Toronto Island chain. Are we ready for more?
Whether you choose to focus on the present or the future when it comes to real estate in Toronto, you should always be cognizant of the tremendous effect large assets like your real estate property can have on your estate. When contemplating real estate decisions, it is important to think of it as an intergenerational asset, as it will affect the makeup of your estate in a significant way.
Thanks for reading!
Summer is fleeting – and we often put pressure on ourselves to make the most of this 3-month sliver of warmer weather.
But here’s the issue. Day-to-day life doesn’t stop. You still have to work most weeks, kids need tending, dogs need walking, and meals need making. And expenses don’t go away – there’s a limit on what you can spend.
So, instead of focussing on big, time-consuming, or costly things that can make a summer special (trips, hot-air ballooning, cottage rentals), how about some small things that can rock your summer.
Here are five small activities that you can easily work into your summer plans.
- Jump in a fresh water lake: You actually don’t have to jump, but there is no summer experience that can match the feel of a Canadian freshwater lake. Even if you’re a non-swimmer, put on a life vest and wade in. Just once. I guarantee it will be memorable.
- Take in one outdoor concert or event: Shakespeare in the Park, a jazz concert, a baseball game – there are many ways to enjoy some sport or culture in the warmer weather. It’s a chance to sit, relax and let someone else do the entertaining.
- Eat ice cream on a hot night: Your diet is no excuse – there are sugar-free and vegan ice cream options everywhere these days. On a hot day, wait until dark then head out for ice cream. The combination of heat, cold and dark can make for some memorable moments.
- Plant a vegetable, somewhere: It can be in a garden or a pot, or secretly hidden in a park, but plant something that you can harvest later in the summer. You’ll get great satisfaction in eating a home-grown carrot, bean, tomato, or zucchini.
- Have a BBQ or patio dinner: If you have a BBQ, use it – the smell alone will bring back memories of summers past. If you don’t BBQ, make a point of having a patio dinner, at a restaurant or at home. And as you’re sitting there, remember: you can’t do this in January.
Here’s to better weather!
Ian M. Hull
When was the last time you slept (lying down) on a train? Or a better question: have you ever slept lying down on a train?
My guess is “no” , or, if you have, it was a long time ago. While overnight rail service played a role in Canada’s past, it’s no longer a preferred mode of travel. Multi-lane highways and cheap flights have replaced overnight rail service for most of us.
Still, there’s something alluring about the train. Maybe it’s the romance of exotic railway routes, like the Orient Express or the Trans-Siberian – trains that are still running today. Even if you’ve never slept on a train, you’ve likely read a book or article – or seen a movie – about these trains with their closed cabins and worlds of intrigue.
The sleeper train to Scotland
It’s this romantic nostalgia for something I’ve never done that hooked me on the news that Scotland is introducing a totally new sleeper service between London and many destinations north this summer. These totally new trains are made for the modern traveller. Some cabins have their own shower and bathroom, the mattresses are top notch, and all the mod-cons (like wifi) are onboard. You can read about it here.
The thought of leaving a world city like London at night and waking up in the morning to the Scottish Highlands whizzing by made me want to book an overnight journey. I haven’t yet, but it’s a trip that’s definitely on my list.
There’s a whole world of trains
Of course, the news of the new train in Scotland got me looking at other sleeper train journeys. There are many. Some are luxurious (there are some high-end ones in India and Africa), but many others are just interesting journeys by rail. This Lonely Planet guide to 10 amazing train journeys is worth a read.
And no matter your vehicle of choice, if you’re taking a trip this summer, happy travels!
Thanks for reading,
Ian M. Hull
Answers to every question are now online. But often, a question pops into our head only to vanish quickly from our thoughts when the triggering moment disappears. And we forget to look up the answer later.
Enough. I chose a single day and made notes of the first 4 questions that randomly popped into my head. At the end of the day, I researched the answers (okay, not all of them are shocking). Here’s what I found.
Q. What exactly is an heirloom tomato?
I went to a small, high-end grocery store and saw heirloom tomatoes for sale. My first question of the day – what are they?
Hah! Just as I expected. This is a completely unregulated designation. Real heirloom tomatoes are grown from seeds that a farmer carefully selects and passes down from season to season. No genetic modifications, no weird DNA alterations. They may be wildly coloured and shaped, but the good ones will have fabulous taste.
However, no one is monitoring this – it’s buyer beware. So, stick to heirlooms from places you trust, or buy directly from farmers at farmers markets. Bon Appetit has a great overview here.
Q. How do Mick Jagger and Paul McCartney keep great hair?
Mick delayed his 2019 tour because he needed medical treatment. That led to this second question.
But alas, still no answer. Both of these 70-something musicians are still in the public eye – a lot – but their hair has barely changed since the 1960s. Clearly work has been done. But try to find out what exactly – so frustrating! At least this 2012 article alludes to hair dye carefully applied to Jagger’s mane. McCartney won’t be far behind.
Q. Where do urban animals die?
I found a big, fat dead raccoon on our front patio. It was on its back, all four limbs in the air. The city agreed to take it away, but it got me wondering – where do these animals go to die? This was the first dead animal on my property in 20 years.
My quick research didn’t yield a lot, likely because the answer is a mix of things. They retreat to their home or other hiding place to die. They get eaten by other animals soon after death. They get picked up by the city when someone reports it. But I did learn from PBS that raccoons only have a lifespan of two to three years in the wild, so don’t let the lack of carcasses fool you. The dead are among us.
Q. How do 150lb golfers hit the ball 300 yards?
Watching a PGA tournament on TV had me gawking at a little guy – Emiliano Grillo from Argentina. He’s 26 years old, stands 5 foot 9 and weighs 141 lbs. He was hitting his drives over 300 yards!
I’m way bigger than that and can barely hit 200 yards on a good drive. I went looking for answers. This was the best article I found. Golf pros hit millions of practice balls and know how to regularly hit the sweet spot on the club face. When you hit the sweet spot, the ball travels much further. Of course, a fluid swing that generates great clubhead speed is the other half of the equation.
The best advice in the article? Swing smoother, not harder. You’ll hit the sweet spot more often and your ball will travel further.
Thanks for reading!
Ian M. Hull
During the past Halloween season, I couldn’t help laughing as I drove by a home in the country that had a very realistic looking, life-sized grim reaper on the front porch. The juxtaposition of decorative corn stalks and an inviting veranda with this figure of death looming over the doorway showed that someone inside had a very funny (but dark) sense of humour.
Of course, in real life, death is rarely funny – and it’s never funny in estate litigation situations, which we deal with every day. All to say, my laugh at the grim reaper was both welcome and cathartic. So, in the spirit of Halloween escapism, I thought that a great way to share the lighter side of death was by highlighting a few irreverent film clips that capture some funny, but deadly, moments.
Here are three that you may remember. Humour is a personal thing, but hopefully at least one of these hits your funny bone.
Bill Murray has a cameo role as himself. Zombies have taken over much of America, but Murray is uninfected and shelters a family that has made its way to L.A. Murray is killed when playing a practical joke on one of his house guests, pretending to be a real zombie.
A bit of Canada died when Leslie Nielson passed away in 2010. His killing of a villain played by Ricardo Montalban is unique in so many comic ways – and epitomizes the deadpan humour of a Canadian comic legend.
King Arthur and his knights are led to a cave and must face its guardian beast, which appears to be an innocuous white rabbit. When King Arthur orders one of his men to kill the rabbit, the action doesn’t go according to plan.
Of course, there are countless other comic film deaths. Let us know if you have any favourites!
Thank you for reading,
Ian M. Hull
The move to retail automation amazes me – its impact is so unpredictable.
The most recent kerfuffle relates to claims by Shoppers Drug Mart cashiers that they’ve been made to pressure customers into using self-checkout stations rather than traditional cashiers. Cashiers claim (probably correctly) that stores are encouraging self-checkout to reduce the number of cashiers needed in store. You can read about it here.
Where will it lead?
I have no doubt that the use of self-checkout at grocery stores will increase in the future, but will it lead to the near elimination of cashier jobs? That’s hard to say. When ATMs started breeding like rabbits in the 1980s, the loss of bank teller jobs seemed almost a certainty. While there have been some branch closures and job losses, there are still thousands of branches across the country. Go into any one and the human touch is alive and well, even with online banking at our fingertips.
Contrast that with the move to self-serve gas stations. Even though a couple of cities in British Columbia (Coquitlam and Richmond) still ban self-serve gas, more than 90% of automobile gas sold in Canada today is self-serve. Most of us never think twice about it – we just pump our own. A lot of gas attendant jobs have gone by the wayside.
Prediction – a niche only for grocery self-checkout
In London, England, I went to a 24-hour Tesco grocery store recently that had no cashiers on the overnight shift. The store had just one attendant at the front whose job was to help people navigate the self-checkout machines. That’s a use that makes sense. If you want the convenience of shopping overnight, you’ll need to do a bit of work yourself at the end. I can definitely see that trend carrying on in Canada.
But my best guess is that grocery self-checkout will remain a niche offering. Bricks and mortar retailers need to differentiate themselves from their online cousins, and the personal touch is a key way to do that. I think many people will do what I do – use the self-checkout only when the line at regular cashiers looks too long.
And who wants to make that impulsive scratch & win lotto ticket purchase from a machine anyways?
Thanks for reading!
Ian M. Hull
It started innocently enough. I was in a supermarket with my son on the weekend, and he picked up a Jiffy pop container and handed it to me. You likely know the product – a round tinfoil container with oil and kernels that expands when heated over a stove to produce popcorn.
I didn’t even know they still made it – it was something more common in the 60s and 70s before microwave popcorn took off. I laughed and we stuck it in the grocery cart for fun and went home.
Later that afternoon, my son turned on the stove and started making the popcorn. I told him that I could still chant the Jiffy pop jingle. And out of my mouth it came:
Jiffy pop, Jiffy pop the magic treat – as much fun to make as it is to eat.
Where did that come from? I hadn’t thought about Jiffy pop in 30 years. Why did I still remember a jingle from my childhood? Were 30-second Jiffy pop commercials like this one that powerful?
Advertising can work – for many years
Apparently so. And it got me thinking: what other products were etched into my mind in childhood, and could potentially still be playing a role in my purchasing decisions today?
Research has shown that there can be a connection. Studies published in the Journal of Consumer Research looked at adult judgments of the healthiness of products, some of which were heavily advertised during the person’s childhood. The study found that when children under age 13 were exposed to advertising using characters, they develop positive long-term feelings towards the characters and the brands’ nutrition for years to come. You can read a short summary of the studies here.
While this study focussed on “characters” in advertising (think Tony the Tiger, Ronald McDonald, the Kool-aid animated jug), I wonder if other associations from childhood also work, like jingles? I can still rhyme off the ingredients in a Big Mac, and say the words to Coke’s “I’d like to teach the world to sing” song. Is that why a Big Mac and a Coke still represent comfort food to me today (even if I don’t indulge)?
Re-examine product decision
Buying habits – and fond associations – can keep us locked into many things whose benefits may be long past their best-before dates. So, it’s never a bad thing to reconsider what you buy and why you buy it. You may never kick that Cap’n Crunch habit, or the lose the magic of Jiffy pop, but at least you’ll be self-aware when you make your next purchase.
Thanks for reading!
Ian M. Hull