Author: Paul Emile Trudelle
It is well established that in order for a will to be valid in Ontario, strict compliance with the process of execution must be followed. For example, a formal will with only one witness will not be valid.
However, this is not necessarily the case with a power of attorney. A power of attorney can be declared valid by court even if the formal requirements of execution are not followed.
Section. 10(4) of the Substitute Decisions Act provides that:
A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.
(Subsection (1) provide that a continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. Subsection (2) itemizes who may NOT be witnesses.)
Thus, if a power of attorney only has one witness, or is witnessed by a prohibited witness, the court may still declare that it is effective.
Another basis for finding a power of attorney valid even if the Ontario requirements for execution are not strictly complied with is under s. 85 of the Substitute Decisions Act. This section provides that a continuing power of attorney for property or a power of attorney for personal care is valid if at that time of its execution it complied with the internal law of the place where the power of attorney was executed, or where the grantor was domiciled or where the grantor then had his or her habitual residence.
Thus, even if the requirements of due execution are not complied with, all may not be lost.
Thank you for reading.
Effective January 1, 2019, new rules apply to a motion by a lawyer for removal as lawyer of record.
Under Rule 15.04 of the Rules of Civil Procedure, a lawyer may bring a motion to have him or herself removed as lawyer of record. The old Rule was silent on whether other parties to the litigation, other than the client, had to be served. Under the recent amendments, it is now clear that such a motion must be brought on notice to every other party. However, a motion record need not be served on every other party: just the notice of motion.
The new Rule goes on to provide that the lawyer making the motion shall ensure that any information in the notice of motion or motion record that is subject to solicitor-client privilege, or that may be prejudicial to the client, including the grounds for the motion, is redacted or omitted from the notice of motion that is served on the other parties, and from the motion record that is filed with the court. At the hearing, the lawyer is to provide the presiding judge with a complete and unredacted version of the notice of motion and motion record. This is to be returned to the lawyer after the hearing, and does not form part of the court file.
Under the new Rule, it is likely that the court will require greater detail as to the precise reason for the removal, rather than a general statement such as “breakdown in the solicitor-client relationship”. The new Rule allows the lawyer to set out the precise reason for the removal, without disclosing those reasons, at least to the other parties to the litigation.
A question, however, remains as to whether the lawyer can disclose solicitor-client communications, if only to the judge. Arguably, information subject to solicitor-client privilege should not be divulged to a judge, even in the context of a motion by a lawyer for removal
The amendment was the subject of comment in the decision of Solutions Construction Management v. 1971538 Ontario Inc., 2019 ONSC 503 (CanLII). There, the plaintiff brought a motion for summary judgment. The defendant’s lawyer had recently brought a motion to remove him or herself as lawyer of record, and the defendant therefore sought an adjournment. The adjournment was granted. The plaintiff had been served with the defendant’s lawyer’s motion. However, they did not attend at that motion or advise the court of the pending motion for summary judgment. The summary judgment judge, in adjourning the motion, stated that:
This matter is a cautionary tale as to the significance of the recent amendment to r. 15.04 of the Rules of Civil Procedure. It may, in some circumstances, be necessary for litigants to respond to or, at a minimum, attend on the return of a motion by an opposing party’s lawyer for an order for removal from the record. That step may be necessary to ensure that the court is (a) fully informed of the status of the litigation, and (b) given an opportunity to consider the potential prejudice to other parties if counsel for one party is removed as lawyer of record.
Thank you for reading.
Ontario’s nursing homes can be a very violent place.
According to a report of public health watchdog, Ontario Health Coalition, reported incidents of resident-on-resident abuse doubled from 1,580 incidents in 2011 to 3,238 in 2016. At least 29 residents were killed by fellow residents in the past 6 years. Those numbers may be under-reported. In addition, a number of deaths have been noted that are not deemed homicides, but occur shortly after an incident of violence.
The numbers are particularly significant, considering that there are less than 80,000 people living in long-term care in Ontario.
Incidents usually involve at least one patient with dementia. Symptoms of dementia can often include aggression.
The report does not address staff-on-resident abuse. According to a CBC Martetplace investigation, an average of 6 seniors are abused by their caregiver every day. In 2016, there were 2,198 reported incidents of staff-on-resident abuse.
According to Natalie Mehra, Executive Director of Ontario Health Coalition, “It’s a level of violence that would be unacceptable anywhere in our society and certainly should not be tolerated for the frail and vulnerable elderly. Her organization encourages increased staffing levels and training. “We don’t think it’s in the public interest to scare people away from long-term care. We think that it’s in the public interest that this has to be exposed so it can be dealt with and fixed.”
Have a great weekend.
Cash in a safety deposit box (“SDB”) often poses a problem. As there are rarely records as to what was in the SDB, disputes can arise as to how much money was there, and what happened to it.
The Newfoundland and Labrador Court of Appeal decision in Temple v. Peddle, 2019 NLCA 2 (CanLII) illustrates this problem. There, mom set up a SDB, jointly held with her son, Leo. Leo testified that mom had $50,000 in the SDB. Later, another son, Wendell, accessed the SDB with mom present, and removed cash and deposited it in another SDB. Wendell gave evidence that the amount removed was $30,000. Subsequently, Leo, as mom’s guardian, sued Wendell for the return of the difference, being $20,000.
The Court and the Court of Appeal had to grapple with competing evidence as to the amount in the SDB: Leo said that there was $50,000, and Wendell said that there was only $30,000. The court agreed with Leo, and the Court of Appeal upheld the lower court’s decision.
The matter came down to credibility. The lower court reviewed the evidence in detail, and found that Leo’s story was more credible than Wendell’s. When Leo attended to open the SDB with mom, Leo’s common-law spouse attended with them. She gave evidence that the SDB contained $50,000. When Wendell attended with mom, mom’s caregiver was apparently present when the money was counted. However, she did not give evidence.
In deciding the case, the Court of Appeal reviewed the standard of proof required in such cases. The Court of Appeal confirmed that the standard of proof in civil cases is proof on a balance of probabilities: there is no “sliding scale”, such as a requirement of proof to a high degree of probability.
We often see these types of claims. They can apply to cash in an SDB, or under a mattress. These claims are hard to prove or defend.
Clients should be cautioned that undocumented cash, wherever kept, is hard to account for. Disputes can easily arise, where one party claims it is more than what is claimed by another party.
For an earlier discussion of a case where the allegation was that the deceased had a box of money in his house containing $210,000, but only $96,000 was found in a sock, see my blog, The Perils of Keeping Money Under the Mattress, here.
Have a great weekend.
A recent decision of Justice Dunphy recounts the wonderful history of Toronto’s cemeteries which ultimately grew into the Mount Pleasant Group of Cemeteries.
The decision begins at the beginning:
Forty-one years before Canada was launched as a nation and six years before the City of Toronto was incorporated, Thomas Carfrae the younger, Peter McPhail and a number of other inhabitants of what was then known as the Town of York brought a petition to the Legislative Council of Upper Canada. York’s population had surged after the War of 1812. It was approaching 2,000 and was still growing. However, it had only a Catholic and an Anglican cemetery while people of all faiths were arriving daily. They had passed the hat at a number of public meetings and raised $300 – a sum of money sufficient to purchase six acres of land a mile outside of town at the northwest corner of Yonge and Bloor. Their goal: to purchase the land and hold it for the purpose of a “general burying ground, as well for strangers as for the inhabitants of the town, of whatever sect or denomination they may be”. They judged that due to the recent rapid growth of the town “and the small portions of ground … allotted for the purpose of cemeteries”, there was a need.
They judged correctly. Their petition to the Legislative Council of Upper Canada found favour and a statute named “An act to authorize certain persons therein named, and their successors, to hold certain lands for the purposes therein mentioned” was duly passed and received Royal Assent in 1826: Acts of U.C. 7 Geo. IV, c. 21. The land that came to be known as “Potters Field” was purchased and started operation as a cemetery soon afterwards.
The cemetery group became known as the Mount Pleasant Group of Cemeteries. It has grown to include 10 cemeteries, 4 crematoria, 14 mausoleums and 5 visitation centres on 1,222 acres of land containing the resting place of 600,000. The Mount Pleasant location arboretum is said to be “one of the finest tree collections in North America”. “Practically every tree that will grow in this climate is found here.”
The decision, Friends of Toronto Public Cemeteries Inc. v. Mount Pleasant Group of Cemeteries, 2018 ONSC 7711 (CanLII), relates to the current management of the cemeteries. Ultimately, Justice Dunphy found that the current trustees of the Mount Pleasant Group of Cemeteries were not appointed in accordance with the 1826 Act. He also found that some of the operations of Mount Pleasant Group of Cemeteries went beyond the scope of the statutory trust.
For a video account of the beginnings of Mount Pleasant Group of Cemeteries, click here.
For information about the Friends of Toronto Public Cemeteries, click here.
Thank you for reading.
The end of 2018 is fast approaching. 2019 will soon be upon us. I wish you health and happiness for the new year.
And by all means, get past New Year’s Day!
A 2010 study done at the University of California found that deaths spike in the two weeks around Christmas and New Year’s Day, with January 1 being the day of the year with the highest number of deaths from natural causes.
In the study, researchers looked at death certificates issued in the US over a 25 year period. This study differed from other studies that looked at deaths from self-harm, accidents and homicide in that it looked at deaths relating to natural causes, such as illness and old age.
Researchers found that 5% more people die on January 1 from natural causes than any other day.
Christmas and New Year as risk factors for death, D. Phillips, G. Barker and K. Brewer, Social Science and Medicine 71 (2010) 1463
No empirical reason for this trend is given in the study. However, several possible explanations are set out. These include:
- Increased psychological stress;
- Overcrowded [or perhaps understaffed] hospitals during the holiday season;
- Terminally ill patients may choose to be home and out of the hospital during the holiday season;
- Increased travel;
- People may be able to postpone death briefly in order to reach symbolic occasions;
Other theories are presented but dismissed as implausible or unlikely.
Another theory is that people postpone going to the hospital around the holidays because they want to be with their family. This can be dangerous. As reported in the Independent, “if you’ve got pains in your chest, don’t say I’m going to wait until after the holidays to get it looked at”.
Have a very happy, safe and healthy New Year’s Day, and new year!
In 1934, Fred Coots co-wrote “Santa Claus is Comin’ to Town” with lyricist Haven Gillespie. The song went on to be one of the highest money-making songs of all time (so far). It has been performed by over 200 artists, including, most notably, Bruce Springsteen. The song is the basis for the 1970’s classic Christmas special of the same name.
Fred Coots died on April 8, 1985. Haven Gillespie died in 1975.
In 2015, after an eight year battle, the U.S. Second Circuit Court of Appeals held that the music rights should revert to the heirs of the Coots estate. They were previously sold to a musical publishing company. However, under U.S. copyright laws, songwriters have the right to terminate publishing contracts in certain circumstances. The Court of Appeal found that Coots had effectively given notice of the termination of the copyright, and that the copyright therefore would revert to the Coots heirs in 2016.
A similar lawsuit was commenced by the Gillespie family in 2017. The family sued the music publisher Memory Lane Music for royalties claimed to be owing to the Gillespie estate.
In the recent decision of Charles v. Charles Estate, 2018 ONSC 7327, the court discussed the interplay between a claim for interim support, and claims for equalization.
There, the Applicant was the deceased’s spouse of 22 years. There was some evidence that the Applicant and the deceased may have been separated prior to the deceased’s death.
Fifteen days before the deceased died, the deceased severed the joint tenancy on the matrimonial home and other properties, transferred certain properties to his son, liquidated various RRSPs, and drew money on a line of credit secured by the matrimonial home. He also changed his will to significantly reduce the bequests to the Applicant.
The Applicant commenced proceedings for an equalization under the Family Law Act, and to set aside various transactions entered into by the deceased just prior to his death. She also commenced a claim for dependant support.
In the court decision, the court addressed the Applicant’s claim for interim support.
In deciding whether to award interim support, the court considered whether the Applicant was in need of and entitled to support. Relying on the decision of Perkovic v. Marion Estate, 2008 CanLII 52315, the court stated that the test was:
- whether the claimant falls within a “qualifying relationship” under the Succession Law Reform Act;
- whether the deceased was providing support or was under a legal obligation to provide support immediately before his death;
- whether the deceased did not make adequate provision for the claimant’s support.
The burden is on the Applicant to satisfy each of the three elements necessary to obtain an order for interim support on an arguable or prima facie basis.
In Charles, the court found that the Applicant was not in need of support. She earned more income than the deceased, and was the primary provider for the household. There was no evidence that the economic circumstances of the Applicant had worsened to any significant extent since the date of death.
The court did, however, order that the estate pay the interest on the line of credit incurred by the deceased.
In concluding, the court stated that the Applicant’s claim for interim support was “conflated with her property based claims”. Those claims would continue. However, they did not entitle the Applicant to claim interim support. The court did not comment on the merits of such claims.
Thank you for reading.
While noting up cases on reindeer and mistletoe (as one does this time of year), I came across the decision of R. v. Stewart (1972), 10 C.C.C. (2d) 83. There, the appellant was convicted of driving a motor vehicle while prohibited from doing so. The prohibition stated that the appellant was “prohibited from driving anywhere in the Dominion of Canada for a period of 30 days.” The Court held that this prohibition was overly broad, and should be restricted to driving on a “highway”. Further, the prohibition should have been limited to the object being driven. As written, the prohibition “is broad enough to embrace such diverse and innocent activities as, for example, driving a spike or a locomotive on railroad tracks, driving a herd of reindeer over the arctic plains or even a team of them over the house-tops at Christmas.” The conviction was set aside.
I hindsight, however, a broad prohibition on driving a herd of reindeer over the house-tops may have saved poor grandma from her unfortunate Christmas eve fate.
Turning to mistletoe, mistletoe is the common name for parasitic plants in the order “Santalales”.
in ATCO Electric Ltd. v. Serink, 2017 ABSRB 958 (CanLII), a landowner sought compensation for trees cut down on his land in connection with the construction and maintenance of power lines. The Alberta Surface Rights Board heard that the trees were infested with “Dwarf Mistletoe”, which is a condition that causes excessive branch growth thus reducing the value of the trees as timber due to an increased number of knots. The Board held that because of the Dwarf Mistletoe, the trees had no merchantable value, and compensation was denied.
Have a merry weekend.
In Ontario, marriage has the effect of revoking a will, except in limited circumstances. These circumstances are:
- where there is a declaration in the will that it is made in contemplation of marriage;
- where the spouse elects to take under the will; or
- where the will is made in the exercise of a power of appointment which would not, if the appointment was not made, pass to the heir, executor or administrator of the testator or the person entitled to the estate on an intestacy.
This is the effect of s. 16 of the Succession Law Reform Act.
The revocation upon marriage provisions are not found in all provinces. For example, in Alberta, the current Wills and Succession Act does not provide that a will is revoked upon marriage. Prior to the passage of the Wills and Succession Act, however, marriage had the effect of revoking a will under the previous Wills Act. British Columbia has similar legislation. For a discussion of the unique provisions of the law in Saskatchewan, see Suzana Popovic-Montag’s blog, here.
An interesting issue involving the interplay of the two regimes (ie, marriage revoking will vs. marriage NOT revoking will) was discussed in the Albert Court of Queen’s Bench decision of Re Goin, 2018 ABQB 643 (CanLII). There, the deceased made a will in 1999. He married in 2005, and died in 2012. At the time of the marriage, the Wills Act was in effect, which provided for revocation upon marriage. At the time of his death, the Wills and Succession Act was in effect.
At issue was whether the Wills Act applied, and therefore the will was revoked upon marriage, or whether the Wills and Succession Act applied, and therefore the will was not revoked.
The court held that the legislation in place at the time of the marriage (ie. the Wills Act) was applicable, and therefore the will was revoked. The court rejected the argument that because the Wills and Succession Act was in effect at the time of death it was the applicable law as being “an illogical and untenable argument”. Such an argument, the court said, would meant the the new Act somehow revived the revoked will.
The court also relied upon transitional language in the Wills and Succession Act which provided that it only applied to marriages on or after the proclamation of the Wills and Succession Act. Further, the wording of the legislation made it clear that the timing of the marriage, and not the death of the testator was key.
I will leave the debate of whether marriage should revoke a will to another day. However, in Ontario, the dramatic effect of marriage on a will must be kept in mind.
Thank you for reading.