Author: Natalia R. Angelini

09 Sep

MAID for those with mental illness

Natalia R. Angelini Ethical Issues, General Interest, Health / Medical, In the News Tags: , 0 Comments

New Medical Assistance in Dying (MAID) legislation came into force on March 17, 2021, which provisions include expanding eligibility to those whose death is not reasonably foreseeable.  Although the new legislation temporarily, until March 17, 2023, does not allow those with a mental illness as their sole underlying medical condition to be eligible for MAID, the statute obliges the Minister of Health and Minister of Justice to initiate an independent expert review “respecting recommended protocols, guidance and safeguards to apply to requests for medical assistance in dying by persons who have a mental illness.”

Further to this mandate, the Government of Canada recently announced that an Expert Panel on MAID and Mental Illness has been established to undertake the review. The announcement includes a link to the member biographies, and describes them as reflecting “a range of disciplines and perspectives, including clinical psychiatry, MAID assessment and provision, law, ethics, health professional training and regulation, mental health care services, as well as lived experience with mental illness.”

The Government news release also highlights the critical importance of this work, with the Minister of Health quoted as saying:

“Protecting the vulnerable, including those suffering from mental illness or in crisis, is a priority for the Government of Canada. That is why the work of the Expert Panel is so important to me. The Expert Panel will provide us with independent, objective advice on safe and appropriate ways to assess and provide MAID to individuals living with mental illness who are seeking this avenue to end their suffering. The work of the Expert Panel will be difficult, but will provide Canadians with reassurances that we are balancing justice with compassion.”

The Expert Panel’s final report containing its recommendations is due by March 17, 2022. We will be sure to keep an eye out for further updates on this issue.

Thanks for reading and have a great day,

Natalia Angelini

07 Sep

Does handwriting your name in the attestation clause of a Will amount to signing it?

Natalia R. Angelini Estate Planning, Litigation, Uncategorized, Wills Tags: 0 Comments

In the recent decision of BMO Trust Company v. Cosgrove, 2021 ONSC 5681, a holograph Codicil was the subject of dispute. The handwritten document includes the following language:

“End of page 3 of the Codicil for the Last Will and Testament of me, Nola Louise Bogie

Signed, Published and Declared by the said Testatrix, Nola Louise Bogie, at the City of Toronto, in the Municipality of Toronto, in the Province of Ontario,

As and for her Codicil as an attachment amending her Last Will and Testament.

Dated on: [left blank]”

The Court was tasked with considering whether the testator handwriting her name in the attestation clause constituted a signature in accordance with the formalities for executing a Will in sections 6 and 7 of the Succession Law Reform Act (SLRA).

The applicant, BMO Trust Company, agent for the estate trustee, was advocating for the validity of the Codicil, on the grounds that the testator’s signature appears twice in the attestation clause, and this placement of the signature does not render the Codicil invalid in accordance with s. 7(2)(c) of the SLRA.

The respondent, one of the beneficiaries in the underlying Will, contested the validity of the Codicil, arguing that although the testator’s handwriting of her name occurs in the attestation clause, she had no intention to sign, or give effect to, the Codicil.

In the analysis of the case, the Honourable Justice Dietrich noted that Ontario is currently a “strict compliance” jurisdiction, such that the SLRA formalities must be complied with. She reviewed the statutory requirements of section 6 of the SLRA, which states that “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.” Her Honour also reviewed section 7’s requirements regarding the signature, which must appear “at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.”

Further, Her Honour considered subsection 7(c) of the SLRA, which makes it clear that a will is not rendered invalid “by the circumstance that the signature is placed among the words …of a clause of attestation”, and subsection 7(e), which states that a will is not rendered invalid if there is sufficient space “on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.”

What distinguishes a “signature” from writing out one’s name in long hand was delineated, with Dietrich J. stating that “it must be apparent that what is alleged to be the act of signature was specifically intended by the testator to give legal effect to the document, per s. 7(1) of the SLRA.”

The evidence in this case was also assessed. It notably included that: (i) the holograph Codicil was an unfinished document, with certain blanks, including next to the space where the testator would have likely placed her signature, (ii) though not required, the testator intended to sign the document in the presence of specific witnesses, (iii) the testator understood that the Codicil needed to be signed to be valid, and (iv) after the Codicil was prepared the testator advised the Law Society of Ontario in writing that she had “handwritten a codicil (not yet signed).”

Justice Dietrich concluded upon the evidence proffered that the testator, in writing her name when drafting the holograph Codicil, did not intend to give legal effect to the document.

With legislative changes coming in the new year, we can expect to see similar cases cropping up with increasing frequency.

Thanks for reading and have a good day,

Natalia Angelini

24 Jun

Inaugural OBA Elder Law Day Conference

Natalia R. Angelini Elder Law, Uncategorized Tags: , , , 0 Comments

Earlier this week I was so pleased to participate in the kick-off of the first OBA Elder Law Day Conference. We had a full day of venerated experts addressing a wide array of issues impacting older Ontarians (our fastest growing demographic). With more than a dozen speakers, including a key-note presentation by Jane Meadus of the Advocacy Centre for the Elderly (ACE), the materials for the program are a must read.

Much was learned, including about our long-term care (LTC) system, which the health crisis has brought into greater focus. Audrey Miller, our final presenter for the day, looked at LTC challenges exacerbated by our aging population outpacing the accommodations available, and cited some staggering statistics in that regard.  She also educated us on the LTC application process, which includes:

  • An application is made through the Home and Community Care Support Services (HCCSS) (formerly the LHIN, and, before that, CCAC) for a private room, semi-private, or basic/ward bed (up to 4 beds in a room);
  • The applicant can apply to up to 5 different facilities;
  • The wait time can range from a few months to a few years, with priority being determined by a number of different factors;
  • Once a bed is offered, an applicant has 24-hours to accept it. If refused, barring a significant change in circumstance the person’s name is removed from the lists. Three months must pass before a new application can proceed (though the 3-month penalty has been waived as a result of the pandemic); and
  • Each resident has to pay a monthly co-payment, with the rate varying according to home’s structural class and move-in date.

With increasing demand for LTC facilities, there are many applicants on waitlists. Though most prefer to live at home, they cannot afford to do so given their increasing care needs, the high associated costs and the lack of sufficient publicly funded home care services. It thus comes as no surprise that by the time residents are admitted into LTC, the statistics cited by Ms. Miller indicate that 9/10 of the residents have mental impairment, over 40% exhibit aggressive behaviours due to their cognitive condition, and 1 in 3 is completely dependent on staff. These figures highlight the critical need and importance of increasing the daily direct care being provided to residents. As noted in my earlier blog, within the next four years the Ontario budget aims to increase direct care to 4 hours per day.

Looking ahead, $3 billion in spending is pledged in the federal budget over five years to strengthen Canada’s LTC systems, a task force is being put into place to develop a new National LTC Services standard, and Ontario’s Long-Term Care COVID-19 Commission’s Final Report made numerous recommendations for change. We will be following the progress.

Thanks for reading and have a great day,

Natalia Angelini

22 Jun

How Can We Combat Ageism in Law?

Natalia R. Angelini Elder Law, Estate Litigation, General Interest, Uncategorized Tags: , 0 Comments

The pandemic spotlighted our treatment of older Ontarians, including from the vantage point of discrimination based on age in health care. The problem showed itself in various ways, including through crowded hospitals discharging elderly patients who still needed care and through seniors in long-term care homes with COVID-19 having struggled to get hospital treatment. Reportedly, only 20% of those in long-term care in Ontario who died from COVID-19 were transferred to hospitals, the tragic result being thousands of critically ill residents left to die in facilities not armed to manage the virus.

Ageism transcends the health care system, occurring consciously or unconsciously in other areas, including in our law practices. In Alex Procope’s article How to Combat Ageism in the Practice of Law, he speaks to the World Health Organization’s (WHO) recently published Global Report on Ageism, and its reinforcement of the need for us to recognize and resist ageism in our practice.

To recognize it, Mr. Procope looks at the definition, which the WHO Report describes as stereotypes (how we think), prejudice (how we feel) and discrimination (how we act) directed towards people on the basis of their age. He also provides examples of ageism in play in estate litigation, including through (i) a testator whose will is subject to challenge being depicted as susceptible to undue influence due to their age, (ii) the rights to privacy and due process being downplayed in guardianship disputes, and (iii) through requiring a potential client to submit to a capacity assessment before proceeding with the drafting of a will.

To combat ageism, Mr. Procope considers strategies that he employs, including by approaching cases with the rights and autonomies of the older client as paramount. By seeking to understand the culture, race, interests etc. of older persons, their individuality can be the focus. Additionally, import is given to using non-discriminatory narrative. For instance, he does not cite a person’s age as evidence of incapacity, and he links a person’s frailties to specific evidence of the various factors at play in the case, rather than to age.

These materials serve as a reminder to me that ageism can present itself in both obvious and subtle ways, and that we all have opportunities to address it in our practices.

Thanks for reading and have a great day,

Natalia Angelini

21 Jun

Open Court Principle vs. Privacy – Is there a Clear Winner? 

Natalia R. Angelini In the News, Litigation, Uncategorized Tags: , , 0 Comments

The Supreme Court of Canada recently delivered its judgment in Sherman Estate v. Donovan. In this case, a prominent couple was found dead in their home in 2017, and intense press scrutiny followed. The deaths remain unsolved and are being investigated as homicides. In these circumstances, it comes as no surprise that the estate trustees sought sealing orders in respect of the applications for probate. The relief was granted in the first instance, but on appeal by the Toronto Star, the sealing orders were lifted. The executors then unsuccessfully appealed to the Supreme Court of Canada.

The judgment of the Court was delivered by Kasirer J., who clarified the test for discretionary limits on court openness established in Sierra Club as requiring an applicant to establish that (1) court openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent the risk, and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

The Court disagreed with the estate trustees’ argument that an unbounded interest in privacy qualifies as an important public interest. Citing the principle of openness as the rule and covertness as the exception, the Court narrowed the dimension of privacy to the protection of dignity. Therefore, the information revealed by court openness must consist of intimate or personal details, which the Court describes as the “biographical core”, in order to qualify as a serious risk to an important public interest. Additionally, the Court readily recognized that a risk to physical safety is an important public interest.

Given that in the Sherman case the information sought to be protected was not highly sensitive, it was found that the risk to privacy was not serious. Though the Court appreciated that the disclosure of the probate application may be the source of discomfort, it concluded that it did not constitute an affront to dignity, and the fact that some of the beneficiaries of the estates may be minors was not sufficient to meet the seriousness threshold. Additionally, though the feared physical harm was grave, the Court agreed with the Toronto Star that the probability of harm was speculative.

Despite the Court’s pronouncement that dignity is in need of protection, as it is a fairly narrow aspect of privacy, it seems to me that the resolute observance of the open court principle came out as the clear winner in this case.

Thanks for reading and have a great day,

Natalia R. Angelini

01 Apr

Support for “Dependants”?

Natalia R. Angelini Litigation Tags: , 0 Comments

I recently blogged on a case where the British court disallowed an adult son’s plea for his wealthy parents to continue to financially support him, which litigation was brought after his parents significantly reduced their financial involvement.

A different outcome was achieved in Dove v. MacIntyre, a recent decision before the Supreme Court of Nova Scotia, Family Division, where divorced parents were dueling over the issue of support for their adult daughter. In this case, the mother applied to the court seeking an order that the father pay child support for their 25-year old daughter during her attendance at a dental hygiene program.

Amongst other issues the Court addressed was whether or not the child was a dependant for the purposes of child support, with the definition in the applicable statute including the situation where a child is over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from the charge of the parents or obtain the necessaries of life. Particular attention was paid to the situation, such as in this case, where post-secondary education was being pursued, which can qualify as an “other cause” for purposes of the definition.

Various factors established by the cases were enumerated by the Court to determine whether the  child was eligible for support, including that she tried to finance her education through loans, her income was insufficient to allow her to afford to pay for all of the program costs, her education plan was reasonable and she has secured employment as a result, the mother had taken on extra work in order to help finance her daughter’s studies, her father was remarried and in a two-income household, etc.

The Court was satisfied that the daughter was a dependant child for the period in question, and compelled the father to share in a portion of the education costs equally as the mother.

Had the father been deceased and had the dependant support case been levelled against his estate, I am not certain that the daughter would have fared as well as she did in this case. Under the Succession Law Reform Act, the definition of a dependant is different than in the family law statute under consideration in the Dove case, such that to qualify as a dependant the person must be someone the deceased (i) was providing support to immediately before death, or (ii) was under a legal obligation to support immediately before death. An analysis of the latter of these qualifications would be needed to resolve the issue, and without a laundry list of clearly delineated factors to consider (unlike those applied in the family law context in Dove), the outcome seems less clear to me. Although it also remains open to an independent adult child to apply for dependant support on the moral obligation ground, in Ontario this ground appears to continue to be treated as but one factor to consider in the context of support claims.

Thanks for reading and have a great day,

Natalia Angelini

30 Mar

How Can I Avoid Passing Accounts?

Natalia R. Angelini Litigation Tags: , 0 Comments

Some of the most challenging and expensive estate litigation I’ve dealt with involves accounting disputes. As such, it comes as no surprise to see that in some instances fiduciaries resist agreeing to requests to apply to the court to pass their accounts.**

In Ontario, although a fiduciary may be asked to pass accounts by a beneficiary or someone else the court determines has a financial interest, there is no statutory obligation to pass accounts. If the fiduciary does not agree to do so, the issue can be addressed before the court. Although obtaining such an order is often not difficult, the court has the discretion to deny the request.

Obvious grounds of denial may include the lack of a financial interest. For instance, an alleged creditor who had not yet proven the debt was denied the ability to compel a passing of accounts (see Workman v Colson, [1997] OJ No 1577). Further, in Klatt v Klatt Estate, a case where the beneficiary’s interest was contingent, a passing was not forced upon the trustee (although notably there were additional facts that lent to that conclusion).

With no absolute right to compel a passing, the court may also refuse to order a passing where there is no default on the part of the trustee. This was the outcome in Gastle v Gastle, where the fiduciary responded to the concerns raised and agreed to submit to cross-examination. The court did, however, leave open the ability to revisit the issue after the cross-examination.

Other circumstances where a request to pass accounts may be denied include when the ask is made before the executor has a reasonable opportunity to attend to the administration within a year after death (see McEwen v. Little), and when the associated costs are disproportionate to the value of the estate (see Painter v. Painter Estate).

Although the above instances may provide some comfort to fiduciaries, it is better to avoid disagreement on the issue if possible, which may be achievable with active steps to progress the administration in a timely way and with periodic informal accountings being provided to the beneficiaries.

Thanks for reading and have a great day,

Natalia R. Angelini

**For a more thorough review of the issue, I suggest reading Melissa Saunders’s OBA paper entitled When Will Courts Decline to Exercise Discretion to Order a Passing of Accounts?, which aided me in writing this blog.

29 Mar

The Ontario Government Makes Strides To Better Long-Term Care 

Natalia R. Angelini Uncategorized 0 Comments

After decades of challenges in the long-term care system, tragically heightened and exposed by the pandemic, the Ontario government has heeded the calls for change. The Budget released last week makes strides to better life for those in long-term care, including the following funding commitments:

  • Personal support services – Provincial investments of $121 million will support accelerated training of personal support workers, with initiatives geared towards increasing recruitment, training, supply of staff, improved working conditions and retention.
  • Improving quality of life – $246 million over the next four years will be used to upgrade long-term care homes including ventilation (air conditioning) and renovations.
  • Protecting residents – An additional $650 million is being invested to protect residents in long-term care. The funding will help homes prevent the virus spread, increase staff supports and purchase additional supplies and equipment.
  • More Beds – An additional investment of $933 million over the next four years will be dedicated to building more long-term care beds.
  • More direct care – $4.9 billion over the next four years will be critical in focusing on increasing the daily direct care provided per resident from 2.75 hours to 4 hours.

These are some of the key changes the Ontario government is making based upon input from the Long-Term Care COVID-19 Commission’s findings. The Commission has the power to consider any further areas where the government should take action, and will provide a final report to the Minister of Long-Term Care by April 30, 2021.

Thanks for reading and have a great day,

Natalia Angelini

 

14 Jan

More Streamlined Court Processes?

Natalia R. Angelini Litigation, Uncategorized Tags: , , 0 Comments

It has not always been easy to keep up with the rapid technological changes to court processes and court hearings that have been happening over the last several months. We have all needed to adapt, and adapt we have! Although, to me, in person hearings remain the ideal way in which to interact with counsel, clients and judges, I admit the Zoom court hearings have been a welcome respite from the added time and stress of the early morning drive to far-away court houses in different cities to argue one case or another. Clients may also appreciate the cost-savings that result from less paper and less travel and waiting times.

Streamlining of court processes has recently been solidified by way of several changes to the Rules of Civil Procedure, and a couple of my colleagues have podcasted about it here. This trend has now also expanded to the Supreme Court of Canada, where the leave application process is reported to be changing effective January 27, 2021. The changes can be found here, and facilitate the electronic filing of material.

Should there be more changes to come, we will keep you posted.

Thanks for reading and have a great day,

Natalia R. Angelini

12 Jan

What’s the Update on the Calmusky Case?

Natalia R. Angelini Estate & Trust, Uncategorized Tags: , , , , 0 Comments

I previously blogged about the Calmusky v. Calmusky decision here, in which decision the court concluded that resulting trust presumptions apply to the beneficiary designation under a Registered Income Fund (RIF). As such, the onus was put on the named beneficiary of the RIF to rebut the presumption that he was holding the RIF in trust for his late father’s estate. The decision was not appealed.

The Ontario Bar Association (OBA), and primarily the OBA’s Trusts and Estates section, has considered the impacts of the case and has delivered a Submission to the Attorney General of Ontario and Minister of Finance with proposed remedies.

The potential effects cited by the OBA are worrying, and include that (i) it may compel financial advisors to provide what amounts to legal advice when such designations are being made, (ii) it may increase litigation where the named beneficiaries of plans, funds and policies are not the same residuary beneficiaries of an estate, (iii) it may create uncertainty in contracts (e.g. cohabitation and/or separation agreements) that use beneficiary designations as a way to secure support payments, and (iv) it may defeat the testamentary intentions of Ontarians who previously made their beneficiary designations and cannot make new ones.

The OBA Submission proposes legislative amendments with retroactive effect to remedy the issue. Such proposed amendments are to add a subsection to each of the Succession Law Reform Act (s. 51) and Insurance Act (s. 190) clarifying that when a designation is made, no presumption of resulting trust in favour of the estate is created.

We will provide an update once we know more.

Thanks for reading and have a great day,

Natalia R. Angelini

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