Author: 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

11 Jan

How Can We Accommodate Older Witnesses at Trial?

Natalia R. Angelini Uncategorized Tags: , , 0 Comments

An aging population brings with it more older Canadians involved in the court system.  Some challenges with having older witnesses testify at trial may include:

  • memory impairments (almost 40% of people over age 65),
  • a decline in hearing (47% of people age 60-79),
  • irreversible vision loss (25% of people by age 75),
  • mobility issues (more than 25% of people by age 75), and
  • dementia (at least 90% of people with dementia are over age 65).[1]

Add to this the method in which evidence at trial is elicited – through the adversarial process of examination and cross-examination, with the witness sitting alone, apart and elevated in the courtroom, which conditions make witnesses feel uncomfortable and intimidated – and the result is less accurate testimony.

Some solutions for our older witnesses include various ways to minimize court appearances, including examining witnesses for discovery at their homes, allowing them to attend pre-trial or trial by telephone or videoconference, and allowing hearsay statements made out of court to be admitted at trial. Another very helpful option for the elderly and/or infirm is to avoid delay by taking trial testimony in advance of the trial. In Ontario, Rule 36 of the Rules of Civil Procedure allows the parties to examine a witness before trial (often video-taped), which examination can be used at trial in the place of in-person oral testimony. If the parties don’t agree on the issue, the party that wants to proceed with the Rule 36 examination would need to bring a motion seeking a court order to this effect. When deciding whether or not to allow a Rule 36 examination, the court must take into account various considerations, including:

  • the convenience of the person whom the party seeks to examine;
  • the possibility that the person will be unavailable to testify at the trial by reason of death, infirmity or sickness;
  • the possibility that the person will be beyond the jurisdiction of the court at the time of the trial;
  • the expense of bringing the person to the trial; and
  • whether the witness ought to give evidence in person at the trial.

Rule 36 examinations certainly seem to be in keeping with the times. With the long-overdue technological strides made in our court system as a result of the COVID-19 pandemic, virtually every litigation step is now being conducted virtually (including examinations, mediations, pre-trials and trials). With this trend expected to continue after the pandemic has ended, I would imagine that we will see fewer disputes over the issue of whether or not a Rule 36 examination should proceed.

For a more comprehensive commentary on the issue of accommodating older witnesses, I refer you to the paper in the footnote below, from which I have taken just a sampling of high points in this blog.

Thanks for reading and have a great day,

Natalia Angelini

[1] Obtained from Helene Love’s paper, Seniors on the stand: accommodating older witnesses in adversarial trials, The Canadian Bar Review (Vol. 97, 2019, No. 2)

15 Oct

Holding the Reins on Dependant Support?

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

The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, the person must be someone that the deceased (i) was providing support to immediately before death, or (ii) was under a legal obligation to support immediately before death.

Interestingly, the definition of “child” is not limited to minor children or financially dependant children. It is thus open to an independent adult child to whom no financial support was being paid immediately prior to death to apply for dependant support, premised on the argument that the deceased parent has a moral obligation to provide support. While we have seen the development and application of the moral obligation principle in Tataryn v. Tataryn Estate and Cummings v. Cummings, and although some decisions of the bench in British Columbia indicate that it is willing to apply the moral obligation principle in favour of independent adult children, in Ontario moral obligation appears to continue to be treated as but one factor to consider in the context of support claims. The fact remains that there is no legal obligation to provide support to an adult child.

A similar view may persist in the British court, which was recently reported to have 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. While in this instance the parents were alive and able to successfully respond to the court proceeding, had they died prior to or during the time when financial support was in the process of being reduced, would the adult son have had more success with such a claim? If his parents died subsequent to support being reduced or eliminated, would their estates still be vulnerable to a dependant support claim on moral grounds?

Although each case is fact-specific, I would not be surprised to see that in circumstances where there is a large estate and no other competing support claims, the court may work harder to striking a balance between fairness and testamentary intention, particularly where the parents are shown to have enabled a lifestyle and arguably created a dependency that they withdrew during adulthood.

Thanks for reading and have a great day,

Natalia Angelini

13 Oct

When Can an Attorney Act?

Natalia R. Angelini Capacity, Power of Attorney 1 Comment

New fears and anxieties brought on by the health crisis may play a part in the uptick we are seeing in the making of wills and powers of attorney documents. Ontarians, particularly vulnerable older Ontarians, may take comfort at this time in having their estate plans laid out, as well as having individuals in place to manage their finances and personal care in the event of illness, incapacity or physical inability to manage these tasks themselves.

Once these powers are granted, disputes can arise over when an attorney can start acting in the appointed role, particularly when incapacity is required prior to the attorney commencing to act. In the management of one’s property, donors often sign power of attorney documents where the ability to commence acting takes effect from the date of the document. However, donors sometimes opt to have the authority deferred to the time of incapacity. Similarly, when it comes to the management of one’s personal care, the attorney cannot act until the grantor lacks the capacity to do so.

How incapacity is determined is often impacted by the power of attorney document itself and the varying level of protections that a donor may wish to have in place. For instance, the grantor may choose to have the power of attorney document stipulate that (i) one physician’s letter opining that the donor is incapable will suffice, or (ii) two physician’s letters are required, or (iii) incapacity be determined by a formal capacity assessment conducted by an accredited capacity assessor.

Should a capacity dispute arise, it is noteworthy that the Substitute Decisions Act protects the privacy, dignity, and legal rights of the individual through the following provisions:

  • there is a presumption of capacity (s. 2);
  • a person whose capacity is in issue is entitled to legal representation (s. 3);
  • a person alleged to be incapable is entitled to notice of court proceedings (ss. 27(4) and ss. 62(4));
  • the court must not appoint a guardian if it is satisfied that the need for decisions to be made can be met by an alternative course of action that is less restrictive of the person’s decision making rights (ss. 22(3) and ss. 55(2));
  • in considering the choice of guardian for property or personal care, the court is to consider the wishes of the incapable person (ss. 24(5)(b) and ss. 57(3)(b)); and
  • subject to exceptions, a person has a right to refuse an assessment, other than an assessment ordered by the court (s. 78).

Giving someone the power to control our finances and personal care are some of the most important decisions we make that can impact the quality of life in our elder years. Sober and thoughtful consideration of the best person(s) for the role is essential, and may minimize discord, disputes and abuse in this area.

Thanks for reading and have a great day,

Natalia Angelini

 

16 Jul

Call for Action to Protect Ontario Seniors

Natalia R. Angelini General Interest Tags: , , 0 Comments

I am proud to be part of a COVID-19 Working Group established by the Ontario Bar Association’s (OBA) Elder Law Section. We are urging the Ontario government to act now to increase the safety of older adults living in long-term care homes. The OBA letter to Ministers Fullerton and Cho found here makes specific recommendations for the implementation of immediate measures, some of which are:

Resume unannounced annual Resident Quality Inspectors

The Long-Term Care Homes Act requires inspections at least annually, without advance notice, to ensure compliance.  However, in the fall of 2018, the Ministry of Long-Term Care scaled back comprehensive Resident Quality Inspections to focus on ‘risk-based’ complaints-triggered inspections. The government is being asked to resume unannounced annual on-site and in-person inspections, as they are an essential compliance measure to protect the vulnerable population of residents in long-term care homes.

Safeguard residents’ right to give informed consent or refusal to treatment and the delivery of personal assistance services

In the long-term care setting, Ontario law requires informed consent of a person or their legally authorized substitute decision-maker both in respect of treatment and personal assistance services. This necessitates health care providers and personal support workers having the ability to engage with residents, to explain risks and options, and to address questions. Their ability to do so is hampered by staff shortages, insufficient personal protective equipment and a lack of resources and training. The Ministry of Long-Term Care is being asked to ensure that health care providers and personal support workers have the knowledge, resources and time to properly engage with residents and ensure their consent or refusal to treatment is fully informed.

Ensure sufficient life safety measures are installed in long-term care homes.

Long-term care homes are exempt until January 1, 2025 for installation of automatic fire sprinklers under the Ontario Fire Code, on the basis that under a long-term care home rebuild program, all Ontario long-term care homes would be brought up to current standards by January 1, 2025. Given the delay in the rebuild program, many older long-term care homes still do not have automatic fire sprinklers, and are unlikely to be brought up to current standards by January 2025. The government is being called upon to implement sufficient life safety measures, including installing automatic fire sprinklers in all Ontario long-term care homes as soon as possible.

Accelerate the completion of a long-term care home rebuild program**

Currently, approximately one-third of all long-term care beds in Ontario remain at the 1972 standard. These beds accounted for 57% of the province’s 1,691 reported COVID-19 deaths in long-term care homes (as of early June). The Ministry of Long-Term Care is being asked to take immediate control of the rebuild program to ensure that new homes are built or rebuilt promptly, in locations that meet the demand for long-term care home services.

I am appreciative of everyone who supported this initiative, and to the Working Group in particular: Lawrence Swartz (Chair), Graham Webb, Raymond Leclair, Kim Gale and Amy MacAlpine.

Have a great day,

Natalia Angelini

** Here you can find the announcement that was just made regarding the acceleration of the rebuild program.

14 Jul

Canada Revenue Agency Update Re: Clearance Certificates During COVID-19

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

The Canada Revenue Agency (CRA) recently provided an update regarding its processing of clearance certificate requests.

Due to COVID-19, clearance certificates may be taking longer to process because employees have limited access to CRA offices and are receiving minimal submissions by mail or fax. Any new clearance certificate applications submitted after March 12, 2020 may not form part of the inventory being processed. As such, CRA is encouraging legal representatives who submitted a clearance request after March 12, 2020 to resubmit the request and supporting documents electronically, either through My Account, Represent a Client or My Business Account.

If the applicant cannot use one of these portals, in order to help stop the spread of COVID-19, CRA has created a temporary procedure allowing taxpayers and their representatives to submit clearance certificate requests and supporting information by e-mail. To do so, we can contact the CRA at CCTX19G@cra-arc.gc.ca, and the province where the executor lives should be named in the subject line. CRA has a sample e-mail accessible in the link at the top of this blog, and CRA warns that sensitive information or attachments should not be included in the e-mail request. We can expect a CRA officer to reply by e-mail with requirements to authorize e-mail communication and to advise when/if we are permitted to submit the clearance certificate application by e-mail.

This e-mail option is helpful to applicants, as it may avoid delay in attending to an estate’s tax matters. However, it is a route to consider carefully, as there is greater risk in proceeding by e-mail than through portal access.

Thanks for reading and have a great day,

Natalia R. Angelini

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

TRY HULL E-STATE PLANNER SOFTWARE

Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!

CATEGORIES

ARCHIVES

TWITTER WIDGET