Author: Suzana Popovic-Montag
Dying with Dignity (DWD) Canada, a not-for-profit organization, has noted a rise in calls from Canadians inquiring about medical assistance in dying (MAID) since the start of the pandemic.
The individuals calling DWD are largely concerned about the prospect of dying an uncomfortable death from Covid-19. Since MAID is only available to a small group of individuals who meet the rigorous conditions set out in Canada’s assisted dying law, Helen Long, CEO of DWD Canada, urges people to complete an advanced care directive to ensure their end of life wishes are met. Advanced care planning advice, and specifically how it relates to Covid-19, can be found on the Dying with Dignity website.
Other DWD callers express concerns about the difficulty of accessing the healthcare system during the Covid-19 pandemic. These callers worry about whether they will be able to in fact access MAID programs when needed. For example, in March of 2020, some MAID services were shut down in Ottawa and Hamilton to prevent the spread of Covid-19 and to preserve health-care resources. However, other regions have deemed MAID to be an essential service and have implemented safety protocols to ensure adequate protection for clinicians conducting this service.
Some long term care homes reject MAID on religious grounds and, therefore, will not allow the services to be conducted on their property. It is clear that MAID has become increasingly difficult to access for many people.
Currently, Bill C-7 is before the House of Commons. Bill C-7 contains the government’s proposal to expand eligibility for assisted death. One way that the government seeks to do so is by modifying the current stringent requirement of a “reasonably foreseeable death.” Although Bill C-7 would maintain the general notion of a reasonably foreseeable death as a precondition to accessing MAID, it would establish more lenient eligibility requirements for those who are near death. Bill C-7 seeks to make MAID more accessible by alleviating some of the more burdensome conditions that presently need to be met.
Under the current assisted dying regime, 6,465 medically assisted deaths are expected in Canada in 2021. This legislation would enable almost 1200 more medically assisted deaths. These were the numerical predictions expected prior to the pandemic. The exact number of additional requests for MAID due to Covid-19 remains to be seen.
Thanks for reading … Enjoy the rest of your day.
Suzana Popovic-Montag & Tori Joseph
Just as an economic recession has serious ramifications for our society, so too does a social recession. A social recession can be described as a phenomenon whereby social bonds and human connection unravel the longer we are without interaction. Similar to an economic downturn, a social recession can have significant physical and psychological effects on people. Of particular concern to many is the effect that such a recession will have on the elderly, an already vulnerable population.
Restrictions in long-term care homes resulting from the Covid-19 pandemic have only magnified a deeper rooted pandemic of loneliness that was already in existence. The virus also shed light on an already strained and crumbling system. CBC Marketplace found that 538 of the 632 long-term care homes in Ontario were repeat offenders of abuse, inadequate infection control, inadequate hydration, unsafe medication storage, and poor skin and wound care. These homes were in direct violation of the Long-Term Care Homes Act and Regulations.
The importance of human connection cannot be underestimated. Julianne Holt-Lunstad, a professor of psychology and neuroscience at Brigham Young University, found that people with higher levels of social connection experience less inflammation (which is attributed to many chronic diseases) than those who are more isolated. Toronto long-term care resident, Devora Greenspon, although not infected with Covid-19, described her loneliness as “so deep it feels like a disease.”
Residents in Ontario’s long-term care homes have pleaded with the government to address the mass devastation caused by social isolation. It is crucial that elders and long-term care residents are protected from the spread of Covid-19. However, it is equally as important to halt the plague of loneliness from spreading any further. There must be a greater focus on the devastating effects of isolation on elders’ mental health as a healthy mind can often be the greatest weapon against disease. The inevitability of a social recession should not be overlooked.
Thanks for reading!
Suzana Popovic-Montag and Tori Joseph
Canada’s population is rapidly aging. With baby boomers constituting just over one quarter of our population, the percentage of elders in our society is rising at an alarming rate. In 2014, the percentage of seniors north of 65 was 15.6 percent of the population. By 2030 – in the next decade – seniors will make up 23 percent of the Canadian population. With this change in demographics, elder abuse (and financial exploitation in particular) has become somewhat of an epidemic.
Financial exploitation commonly occurs when an attorney for property abuses his/her power afforded by the Power of Attorney (“POA”) document. Executing a POA is a vital component of every estate plan. When properly drafted and with the appropriate understanding of rights, duties and obligations, a POA has the effect of protecting individuals and their heirs against future incapacity. When drafted improperly and without a clear recognition of duties and responsibilities, the consequences can be grave.
Toronto resident, Christine Fisher (“Fisher”), is all too familiar with the devastating impact that POA abuse can have on an individual’s financial situation. In 2016, Fisher was 94 and living independently in her own apartment despite suffering from the beginning stages of Dementia. Fisher ultimately executed a POA appointing an old colleague, Theresa Gardiner (“Gardiner”), as her attorney for property. In her role as attorney, Gardiner immediately moved Fisher from her apartment to a seniors’ residence – a decision that was not viewed favourably by Fisher’s family and long-time friend, Nancy Lewis (“Lewis”). In the coming months, Lewis discovered that Gardiner had been abusing the power granted to her under the POA by misappropriating Fisher’s funds. By breaching her fiduciary duty, Gardiner exacerbated Fisher’s financial situation and improved her own. In an attempt to justify her misconduct, Gardiner told CBC News that Fisher had gifted her the money. In July of 2019, Gardiner was charged with several counts of theft. Most of these charges were withdrawn by the Crown in November of 2019.
Unfortunately, the story of Christine Fisher is not an anomaly. It is a reflection of society’s tendency to overlook and ignore vulnerable elders. Given the substantial risks associated with appointing an inappropriate attorney, lawyers should remain vigilant to possibilities of incapacity, fraud and undue influence prior to creating a POA for a client. Recognizing the warning signs is the first step to protecting this vulnerable population.
Thanks for reading!
Suzana Popovic-Montag & Tori Joseph
In June of this year, the Divisional Court of Ontario clarified that Section 10(1) of the Estates Act did not supersede the Courts of Justice Act where leave is required in order to appeal an interlocutory order.
In Luck v. Hudson Re: Estate of Albert Luck, the court however did grant leave, in order to immediately dismiss an appeal that raised issues not heard by the judge in the court of first instance and revealed ulterior concerns.
Steven Luck is the son of the late Albert Luck. Albert owned a house jointly with his wife Marylou Hudson. The relationship between Steven and Albert had deteriorated during Albert’s life and litigation ensued. Albert sued his son, who in turn filed a counterclaim- skidoos and cottage upgrades were all under dispute. Then Albert died, and the Will challenge began.
The motion judge, Justice Salmers, held that money from the sale of the house of Albert and Marylou be paid into court to the credit of the estate of Albert and to be paid out and distributed pursuant to the terms of the Will.
Subsection 10(1) of the Estates Act says that a party to a proceeding under that statute “may appeal to the Divisional Court from an order, determination or judgment if the value of the property affected” exceeds $200. Steven did not seek leave to appeal the interlocutory order and instead relied on 10(1) saying that he had an appeal as of right.
Since only this brief decision is reported, we do not know the underlying dispute which gave rise to Salmers, J’s interlocutory injunction, but the panel made two issues clear:
1: Leave is required to hear an appeal of interlocutory injunction
2: An appeal is not the appropriate venue to raise new issues, or air grievances.
The Courts of Justice Act is clear in section 133 that no appeal lies without leave from an order made on consent, or where the appeal is only to costs. The test for granting leave to appeal from an interlocutory order is an onerous one. If the panel feels the decision was well reasoned and the issues raised are not of general importance (Bell ExpressVu Ltd v Morgan (2008) O.J. No. 4758) leave will not be granted.
In this case, the court determined that Steven was seeking not only to appeal the injunction but that, “at its root the true purpose of that motion was to raise concerns as to the validity of the Will.” While Steven made no objection to the appointment of Trustees or to the Will in first instance, the court went on to say:
“What has become apparent is that Steven Luck wants to contest the Will in order to overturn the distribution of the funds held in court. He wishes those funds to remain available as security for the enforcement of a counterclaim he has made in response to an action commenced by his father (prior to his death) against Steven Luck.”
The court determined that Steven was actually seeking a Mareva injunction: A freezing of the estate assets, as security, in advance of any judgement made, potentially, in his favour.
The court found Steven had not met any of the prerequisites for such an order, and in fact, may have been barred by the Limitations Act, 2002, as previously determined by Justice Salmers.
In the end, as quickly as leave was granted, the appeal was dismissed. And Steven, now on the hook for a $25,000 cost award, was no better off.
A valuable caution to those considering the appeal route.
Thanks for reading!
Suzana Popovic-Montag and Daniel Enright
The presence of COVID-19 in Canada has been felt through all communities, but those living in long-term care facilities have been most significantly affected. The virus’s exponential infection rate, coupled with the pre-existing medical conditions of many of those who reside in these care facilities, has resulted in high death rates and little insight on how best to protect the elderly community going forward.
On May 19, 2020, Premier Doug Ford announced the Ontario Long-Term Care COVID-19 Commission (the “Commission”) in response to the devastating impact COVID-19 has had on residents and staff of long-term care homes.
The Commission has a mandate to investigate the spread of COVID-19 in long-term care facilities, the adequacy of efforts taken by the facilities to prevent transmission during the first wave of the pandemic, and how various elements of the existing system may impact the spread of COVID-19 within long-term care homes. The commission aims to provide recommendations to the government regarding the health and safety of residents and staff of these facilities and how to better protect them from potential outbreaks in the coming months.
The establishment of the Commission emphasizes the need for quick and decisive action in response to the virus’s overwhelming effect on Ontario’s elderly population. Though the virus’s impact remains prominent at this time, a second wave of COVID-19 is anticipated in the coming months. Consequently, the Commission will work diligently to provide the government with a final report by April 30, 2021.
Three commissioners will lead the investigation. The Honourable Justice Frank N. Marrocco was appointed as Chair of the Commission. Associate Chief Justice Marrocco has been involved in high-profile matters in the past, including as the lead counsel for the Province of Ontario in the Walkerton inquiry. Justice Marrocco was appointed to the Superior Court of Justice in 2005. Angela Coke and Dr. Jack Kitts will accompany Associate Chief Justice Marrocco on the Commission.
Angela Coke is a former senior executive of the Ontario Public Service (OPS), where she spent 27 years committed to the transformation of government operations. Ms. Coke retired in 2017, having previously served as the Deputy Minister, Ministry of Government and Consumer Services, where she played a leadership role on a range of government and public service priorities.
Dr. Jack Kitts completed a three-year tour of duty as a medical officer in the Canadian Armed Forces. He later returned to school for specialty training in anesthesia. In 1995, he was appointed Chief of Anesthesia and Associate Professor at the University of Ottawa. Within three years, he was appointed Vice-president of Medical Affairs and led the medical staff through a large restructuring, in which three hospitals and five large programs merged into the Ottawa Hospital.
Given the qualifications of the members of the Commission and the importance of taking any possible steps to protect the lives of residents of Ontario’s long-term care facilities, the creation of the Commission appears to be a promising first step in implementing necessary measures to enhance the ability of long-term care facilities to adequately respond to the pandemic and to protect their residents and staff once the current health care crisis has passed.
Thank you for reading!
According to TheFreeDictionary.com, the idiom, “there’s no time like the present” dates back to 1562, and with the state of the world as it is, many people it seems, are scrambling to create Wills as soon as the present allows it.
Will planning requires honesty and is often regarded as an emotionally draining chore. While the drafting of a Will is, as the Romans would say, a Memento mori (a reminder of our mortality), it need not be a sad or troubling task. Planning for one’s estate can be much like the ultimate holiday shopping list. A Will allows us to make sure a treasured possession goes to the right person, and it ensures that our loved ones are provided for, in line with our wishes. Much like insurance, a Will can be thought of as preparing for the worst-case scenario. It can be thought of, particularly in times of strife, as a way to be of service to those people and organizations that we hold dear. “Yet,” as my grandmother would say, “there can always be a little room for whimsy.”
“To my nephew Phillip who wanted to be in the Will, “hello you’re in the Will.”
In a 2015 collection of the “Strangest Wills of All Time,” The Guardian UK compiled 10 Will provisions where, they said, “the temptation to cause mischief or raise a smile from beyond the grave was too much to resist.” Here are but two examples.
After legendary comedian Jack Benny died in 1974, his widow, Mary Livingstone had a single red rose delivered to her every day. She would later learn that Jack had provided for flowers in his will. “A single red rose, delivered to Ms. Livingstone, for the rest of her life.”
When Roger Brown of Whales died in 2013, he left his seven closest friends, friends of 40 years, a bequest of £3,500 with the proviso that they go on a European holiday, and raise a glass together.
While a Last Will and Testament is a serious document that ought to be treated as such, it does not have to be a dreary and dark affair, where all we think about is death and endings.
It is, after all, but one more way to look out for each other.
Thanks for reading,
Suzana Popovic-Montag and Daniel Enright
After our recent blog about estate matters in Ancient Rome, I was reminded that to the Ancient Greeks, the “dog days” happened when the star ‘Sirius‘ appeared to rise just before the sun in late July and August. The Greeks referred to these days, the hottest days of the year, and a period that could bring fever or even catastrophe, as The Dog Days of Summer.
Cottages, if not carefully considered in estate planning, can often bring fever and catastrophe, to families when their transfer is not properly planned in estate plans. Be it an unexpected tax liability, or unhappiness amongst siblings, cottages can cause great pains.
Today, we look at two scenarios of cottage transfer, specifically the living gift (inter vivos) and the testamentary gift (after death).
Emotion and attachment to the family cottage can run deep and go well beyond the financial value of the property. As we discussed here in 2013, proper planning is essential to avoid the kind of strife that was examined in our blog post, “Perils in the Succession of the Family Cottage.”
One way to clearly establish your wishes and see them carried out is to gift the cottage while still alive. A “gift inter vivos” is Latin for a gift among the living and is a common way of transferring ownership, particularly if you no longer use or visit the cottage. A tax advisor is an important and necessary resource when considering such a gift, as the gift of a cottage can give rise to a tax burden on the giftor.
It’s important to remember that once the cottage gift is complete, it is, technically, no longer yours and the receiver of the gift, be it a child or sibling, would be free to do as they wished…. even sell it. So it’s not necessarily the right vehicle for transfer, as it were, for every family.
Another very common means of transfer is by Will.
You are free to name your heirs to the cottage as you so choose, but often when there is more than one child inheriting, for example, a trust becomes a very good way to address possible conflicts that might otherwise arise. It also insulates the property from potential legal disputes like bankruptcy or divorce.
A trust also becomes a good way to establish responsibility for the cottage and its expenses. The Will can stipulate that funds are set aside for maintenance or yearly upkeep and those funds can ease the burden on a beneficiary who may not be in the best financial position to inherit such a gift.
As the Dog Days of Summer roll on and another cottage season soon comes to a close, proper planning for that beloved family cottage can prevent the fever and catastrophe that the Greeks were so alive to each time that Dog Star came bounding across the sky.
Thanks for reading and enjoy the sun!
Suzana Popovic-Montag & Daniel Enright
Few histories are as rich and riveting as the history of Ancient Rome, from the uncertain rise of the Roman Republic to the terrible civil wars that brought its ruin, and from the mad reigns of all-powerful Caesars to the eventual collapse of the Roman Empire, owing, generally, to invasions from without and corruption from within. Its history also shows us many of the roots of our legal traditions, including – as will be the focus of this blog – some precursors to modern-day estates law.
“It was customary with the Romans of that age, when they were moving into battle array, and were on the point of taking up their bucklers, and girding their coats about them, to make at the same time an unwritten will, or verbal testament, and to name who should be their heirs, in the hearing of three or four witnesses.”
Ontario’s Succession Law Reform Act only requires two witnesses for proper execution of a will (section 4), although soldiers on active service may proceed by writing their wills without witnesses (section 5).
In Ontario, we have instruments at our disposal to prevent or reverse dispositions tainted by incapacity. One may challenge an incapable testator’s will, or one may pre-empt abuse or needless loss with a guardianship application. In Ancient Rome, similarly, those individuals who attempted to give away everything they possessed (what we might call a “spendthrift” the Romans called a “prodigus”) were dealt with as though they suffered from a distemper of the mind.
Under Augustus – of whom it was justly said that he “made a desert and called it peace” – an inheritance tax of 5% was introduced (with some restrictions, such as that it applied only to well-off individuals). A little over a century later, the Emperor Severus increased this inheritance imposition to 10%. While these figures may seem high (or not high enough, depending on where you stand), they may be much lower than inheritance taxes elsewhere, such as in the United States, United Kingdom, France, Japan and South Korea. In Ontario we do not have an inheritance tax, but there are inheritance-like taxes, like capital gains taxes and probate taxes.
There is a marked difference between Ancient Rome and our common law system with respect to gifting between spouses. Unlike modern Ontario, wherein couples often use joint tenancy as a tax-saving estates planning strategy, Roman spouses were prohibited from gifting to one another. While the rationale for this law is moot, it was likely intended to keep apart the property of each spouse’s bloodline.
The Romans, as well as their civil-law descendants of today, operated under what has become known as “forced heirship”, whereby testators are legally required to give to their children. As a previous blog notes, in modern France, a parent with one child must give that child one-half of his or her property. In Rome, the historian Gibbon says that “if the father bequeathed to his son the fourth part of his estate, he removed all ground of legal complaint”. This is in stark contrast to the common law, in which testators may plan their estates with near-total freedom.
Thank you for reading and enjoy the rest of your day!
Suzana Popovic-Montag & Devin McMurtry
A cottage is usually the setting for family bonding and happy childhood memories; however, when it comes to estate planning, ambiguous drafting can lead to family divisions and litigation that is both unnecessary and costly. This is exactly what transpired in the Ontario Court of Appeal decision of Donaldson v Braybrook 2020 ONCA 66, discussed in the Hull on Estates podcast (https://hullandhull.com/2020/02/hull-on-estates-589-cottage-planning/).
A cottage was owned by the mother of a family, who allowed all four of her adult children, Wendy, Susan, Thomas, and Barry, to use the cottage on allocated weeks. In 1995, the mother transferred the ownership of the cottage to herself, Susan, and Thomas, “as joint tenants as to the remainder in fee”, while Wendy and Barry were listed as “additional transferees”, having a “life estate” in the cottage. This language seems perilously vague, and indeed gave rise to disputes within the family after the mother passed away. At this point, Susan and Thomas severed the joint tenancy and wanted to sell the cottage as tenants in common. Barry agreed to renounce his life interest to facilitate the sale, while Wendy refused and alleged that she was also an equal owner. On summary judgment, the motion judge held that Wendy had a life interest in the cottage with a right to exclusive use. This was reversed in the judgment by the Ontario Court of Appeal.
The Court of Appeal held that Wendy’s life interest in the property was not exclusive. The Court first looked to the wording of the registered transfer on title. This was deemed to be too ambiguous to be relied upon. Susan and Thomas were listed as transferees “without limiting their interest in any way”, which could not be reconciled with Wendy and Barry’s “life interest”. The Court then looked at evidence of the actual intention of the mother in making the transfer. The Court decided that the mother’s intention was to have her four children continue to enjoy shared use of the cottage as they had done previously, as well as intending for Susan and Thomas “to enjoy ownership interests beyond the shared right to use during their lifetimes”. As such, the Court concluded the mother’s intention was to give title of the cottage to Susan and Thomas, while maintaining a non-exclusive life-time licence to occupy for Barry and Wendy that allowed all four children to continue sharing the cottage throughout their lives. As the mother’s intention was able to be deduced by the Court, there was no need to consider the presumption of resulting trust in this case.
Much of this litigation and family strife could have been avoided by more clear and concise legal drafting, or by the mother communicating her estate planning intentions to the children during her lifetime, instead of keeping it a secret. The transfer failed to explicitly state how the life interests of Wendy and Barry would coexist with the ownership of Susan and Thomas. It appears the mother intended Wendy and Barry to have life-time licences, and a properly drafted transfer would have reflected this. This case also demonstrates how, in the absence of a reliable and unambiguous legal document, the court will first look to evidence of the intention of the transferor. Such a situation highlights the perils of succession planning for cottages, where use is often split amongst family members.
Thanks for reading – and enjoy the rest of your day!
Suzana Popovic-Montag & Sean Hess
A new Saskatchewan Court of Appeal case sheds more light on the law of standing with respect to will challenges. In Adams Estate v. Wilson, the Appellant executor appealed an earlier decision in which it was held that the Respondent, Mr. Wilson, had legal standing to bring an application to have the deceased’s will proved in solemn form. Mr. Wilson purported to be the deceased’s long-time friend and employee, and he submitted that the deceased had promised to leave him her “ranching operation”; despite this claim, the deceased did not name Mr. Wilson in her will. Instead, she imbued her executor with the discretionary power to distribute the estate to deserving parties, including “certain persons who have been trustworthy and loyal”.
The Chambers judge reasoned that since the statute, Rule 16-46, allows an application by a person who “may be interested in the estate”, Mr. Wilson, as potentially both a creditor and beneficiary, may have been an interested party and therefore had standing. Mr. Wilson succeeded in qualifying himself as a potential creditor because of a related action against the estate. His claim to be a potential beneficiary, though murkier, also succeeded; the claim was that since Mr. Wilson had been “trustworthy and loyal”, the executor could choose to give him a part of the estate in adherence with the will – making him a potential beneficiary.
The Court of Appeal allowed the appeal, finding that Mr. Wilson was a mere “stranger to the will” and, as such, did not have standing. Rather, only the following classes of persons, with specific financial or legal interests in the estate, have standing to challenge a will: (1) Those named as beneficiaries or otherwise designated in the will or other testamentary documents; (2) those to whom the estate would devolve under an intestacy; and (3) those with claims pursuant to The Dependants’ Relief Act, The Family Property Act, and The Fatal Accidents Act. The Court explained that creditors, as Mr. Wilson claimed to be, do not have standing because they have no gain in “interfering with the devolution of property”.
The Court also found fault with Mr. Wilson’s claim to be a potential beneficiary, which was described as disingenuous, circular, and disconnected:
“He ignores that his purpose in requesting standing is to challenge the validity of the Will and the very bequest upon which he based his claim of standing. This is perverse logic because, if successful, Mr. Wilson will have eliminated any chance that he would take under the Will.”
Mr. Wilson was trying to derive rights from a will he was repudiating and suggesting that he might receive a gift from an executor whose legitimacy he denied and against whom he was litigating. He was attempting to win on a legal technicality – on form in spite of substance. In addition to reiterating the parties who may challenge a will, the Court in Adams Estate v. Wilson has put another brick in the wall between those seeking to exploit legal technicalities and the successful results they seek.
Thank you for reading – have a wonderful day,
Suzana Popovic-Montag & Devin McMurtry.